\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Robert MCMICHAEL, Plaintiff - Appellant v. TRANSOCEAN OFFSHORE DEEPWATER DRILLING, INCORPORATED; Transocean RIGP DCL, L.L.C.; Transocean Offshore USA, Incorporated, Defendants - Appellees\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 19-60011 Document: 00515074647 Page: 1 Date Filed: 08/13/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n No. 19-60011 FILED\n August 13, 2019\n\nROBERT MCMICHAEL, Lyle W. Cayce\n Clerk\n Plaintiff - Appellant\n\nv.\n\nTRANSOCEAN OFFSHORE DEEPWATER DRILLING, INCORPORATED;\nTRANSOCEAN RIGP DCL, L.L.C.; TRANSOCEAN OFFSHORE USA,\nINCORPORATED,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\nBefore STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.\nCARL E. STEWART, Chief Judge:\n Between 2014 and 2018, the defendants, Transocean Offshore\nDeepwater et al., reduced their offshore fleet by 59%. While reducing their\nfleet, Transocean fired the plaintiff, Robert McMichael, along with over 7,300\nother employees. McMichael claims he was fired because of his age, in\nviolation of the Age Discrimination in Employment Act (“ADEA”). Transocean\nargues that they fired him for other reasons, just like the thousands of other\nemployees they let go in the same period.\n The district court agreed with Transocean, granting their motion for\nsummary judgment. According to the district court, McMichael failed to raise\n\f Case: 19-60011 Document: 00515074647 Page: 2 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\na genuine question of material fact about Transocean’s reasons for firing him.\nThe sole issue on appeal is whether McMichael presented enough evidence to\nshow that Transocean’s reasons for firing him were pretext for age\ndiscrimination. Because we agree that McMichael failed to raise a genuine\nissue of material fact, we AFFIRM.\n I. FACTUAL BACKGROUND & PROCEDURAL HISTORY\nA. Factual Background\n In 2001, Transocean hired McMichael as a Driller I, assigning him to an\noffshore drilling rig. He was 46 years old. Over the next eight years, he worked\nas a driller and toolpusher on various rigs, earning several promotions and pay\nraises. 1 Then, in 2009, Transocean assigned him to a rig called the Discoverer\nClear Leader (“DCL”). He worked on the DCL until Transocean fired him in\nApril of 2015. He was 59 years old.\n McMichael’s firing came in the middle of a large downturn in the oil and\ngas industry. From 2014 until July of 2018, Transocean reduced its offshore\nfleet by 44 rigs. The reduction in rigs also led to a large reduction in workforce.\nDuring this period, Transocean fired 7,320 employees. Transocean also cut\nalmost half of its toolpusher workforce. In less than two years, they laid off 25\ntoolpushers—48% of all toolpushers.\n In early 2015, when McMichael was fired, Transocean “cold stacked” six\ndrilling rigs, reducing the employees on those rigs from 989 to 0. The DCL was\none of those rigs. Transocean fired 80 employees from the DCL before\neventually taking the entire rig out of service in November of 2017.\nTransocean fired all but one toolpusher from the DCL.\n\n\n\n\n 1 A toolpusher is a location supervisor for the drilling contractor. Toolpushers are\ntypically senior, experienced drillers, and their duties are largely administrative.\n 2\n\f Case: 19-60011 Document: 00515074647 Page: 3 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\n The task of managing the workforce reduction fell on Transocean’s HR\nDepartment, which devised and implemented a system for the project. The\nsystem was called the “high-grading process.”\n At a high level, the high-grading process ranked employees so that\nTransocean could retain its top talent. Higher-ranked employees were more\nlikely to keep their jobs; lower-ranked employees were more likely to lose\ntheirs.\n At a more granular level, the high-grading process had three basic\nparameters—(1) performance, (2) ranking, and (3) potential. Performance is a\nscore based on the employee’s most recent performance appraisal, which has\ntwo components: the Total Performance Score and the Appraisal Score. An\nemployee can receive one of five possible Total Performance Scores: 1 being\nUnsatisfactory, 2 being Conditional, 3 being Fully Successful, 4 being Superior,\nand 5 being Outstanding. These scores are then converted into a percentage:\nUnsatisfactory equaling 40%, Conditional equaling 60%, Fully Successful\nequaling 80%, Superior equaling 100%, and Outstanding equaling 120%.\n The Appraisal Score is based on the total number of points an employee\nscores on his most recent performance appraisal. Reviewers assign employees\npoints in response to twelve different questions. For example, reviewers must\ndetermine each employee’s “Knowledge of Tasks & Operation,” “Delegating\nAuthority and Responsibility,” and “Professionalism.” Each question is worth\nsix possible points, making the maximum score 72 points. Transocean then\ndivides the employee’s actual score by 72, producing the Appraisal Score. They\nthen average the Total Performance Score with the Appraisal Score to produce\nthe performance metric. So, for example, if an employee receives a Total\nPerformance Score of Superior (100%) and receives 62 out of 72 points on the\nAppraisal Score (86%), he will receive a performance score of 93%.\n\n\n 3\n\f Case: 19-60011 Document: 00515074647 Page: 4 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\n The second parameter—ranking—is set by the rig manager. A rig\nmanager sets an employee’s ranking by comparing him to all other employees\nwith the same job title on the rig the manager oversees. For example, if a\nmanager oversees five toolpushers, he must rank them from first to fifth. After\nassigning the employee a ranking, the manager combines the ranking with\n“additional performance-related factors” to produce the employee’s ranking\nscore, which is expressed as a percentage. .\n Rig managers also assign the final parameter—potential. Potential\nrefers to the employee’s potential for promotion to the next position or higher.\nIf the manager thinks the employee has no potential for promotion, he assigns\nthe employee a score of zero, and the employee receives a potential percentage\nscore of 60%. If the manager assigns a potential score of one, the employee\nreceives a potential percentage score of 80%. A score of two or higher earns\nthe employee a potential percentage score of 100%.\n After setting these three measures, Transocean averages them to\ndetermine the employee’s “Total Score.” Because these rankings are difficult\nto apply across rigs, given that each rig manager oversees only a handful of\ntoolpushers, the HR Department noted that they are merely meant to facilitate\nconversations between the HR Department and rig managers, who retain\nultimate responsibility for the lay-off decisions.\n McMichael’s last performance appraisal came in 2014. Gary Mosley and\nRobert Blansett completed the appraisal and assigned McMichael a Total\nPerformance Score of 3 “Fully Successful.” This earned him a score of 80%.\nMcMichael scored 61% on the Appraisal Score, earning 44 out of 72 possible\npoints. Averaging these two scores, his final performance score was 71%.\n After the performance appraisal, Robert Kennedy, the rig manager,\nassigned McMichael his ranking and potential scores. He ranked McMichael\nfourth out of the four toolpushers under his supervision, which translated to\n 4\n\f Case: 19-60011 Document: 00515074647 Page: 5 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\n25%. He also assigned McMichael a 0 for potential, which earned him a\npotential score of 60%. Kennedy assigned McMichael these low scores because\n(1) he spent more time in the toolpusher office than he should have; (2) he did\nnot have great leadership skills; (3) his computer skills were weak; (4) he did\nnot interact well with customers; and (5) he did not have strong planning skills.\nHis final score was 52%. After assigning ranking and potential scores,\nKennedy discussed McMichael with the HR Department and made the decision\nto fire him on April 25, 2015. Kennedy did not know McMichael’s age when he\nfired him.\n After firing McMichael, Kennedy was responsible for hiring his\nreplacement. He chose Jody Eckert. Eckert was 49 years old and received a\nrating of 4 “Superior” on his most recent performance appraisal, earning him\na Total Performance Score of 100%. 2 He earned an Appraisal Score of 67%,\nreceiving 48 out of 72 possible points. Eckert’s final performance score was\n84% when rounded up. His manager also assigned him a ranking of 33%, and\nhis potential score was 60%. The average of Mr. Eckert’s performance,\nranking, and potential scores is 59%. 3 Eckert was fired in September of 2016\nas part of ongoing workforce reductions.\n\n\nB. Procedural History\n McMichael sued Transocean in September of 2016, alleging, among other\nthings, that Transocean discriminated against him based on his age. After\n\n\n\n\n 2 Kennedy did not know Eckert’s age when he selected him.\n\n 3 Despite the scores above, a performance rating chart in the record shows McMichael\nas having a total high-grade score of 71%. Transocean explains that this number reflects\nonly McMichael’s performance score, not his total high-grade score of 52%. Because\nTransocean cold stacked six rigs in early 2015, they ranked and terminated many employees\nquickly, leading to a typographical error on the performance rating chart.\n 5\n\f Case: 19-60011 Document: 00515074647 Page: 6 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\nwritten discovery and depositions, Transocean moved for summary judgment\nin July of 2018. The district court granted the motion.\n The district court first assumed that McMichael could make out a prima\nfacie case of age discrimination. The court then affirmed a reduction in force\nwas a legitimate, nondiscriminatory reason for terminating McMichael. The\nbulk of the court’s opinion dealt with whether Transocean’s proffered reasons\nfor firing McMichael were pretextual.\n According to the court, McMichael could not call into question\nTransocean’s reason for firing him. While McMichael was replaced by someone\nyounger, he did not show that his replacement was less qualified. All that\nMcMichael showed was that “perhaps Transocean made some mistake in their\nscoring.” And such a mistake is not enough to overcome summary judgment.\n The court also held that statements made by Robert Owen—a former\nOffshore Installation Manager on the DCL—did not indicate any\ndiscriminatory motive. And other factors showed a lack of discriminatory\nintent.\n II. DISCUSSION\n This court reviews a district court’s grant of summary judgment de novo.\nE.E.O.C. v. WC & M Enters., Inc., 496 F.3d 393, 397 (5th Cir. 2007). Summary\njudgment is proper “if the movant shows that there is no genuine dispute as to\nany material fact and the movant is entitled to judgment as a matter of law.”\nFed. R. Civ. P. 56(a). There is no genuine issue for trial when “the record taken\nas a whole could not lead a rational trier of fact to find for the non-moving\nparty.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587\n(1986). All facts must be viewed in the light most favorable to the non-moving\nparty and all reasonable inferences drawn in its favor. WC & M, 496 F.3d at\n397.\n\n\n 6\n\f Case: 19-60011 Document: 00515074647 Page: 7 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\n Under the ADEA, an employer cannot “discharge any individual . . .\nbecause of such individual’s age.” 29 U.S.C. § 623(a)(1); see also Rachid v. Jack\nIn The Box, Inc., 376 F.3d 305, 308–09 (5th Cir. 2004). To establish an ADEA\nclaim, the plaintiff must show that his age was the “but-for” cause of his\ntermination—proving that age was a “motivating factor” for the decision is not\nenough. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (holding that\na “plaintiff must prove by a preponderance of the evidence . . . that age was the\n‘but-for’ cause of the challenged employer decision”); see also Moss v. BMC\nSoftware, Inc., 610 F.3d 917, 928 (5th Cir. 2010) (“[T]he Supreme Court\nrejected the application of Title VII’s ‘motivating factor’ standard to ADEA\ncases.” (citing Gross, 557 U.S. at 173–78)). A plaintiff may prove that age was\na but-for cause of his firing with direct or indirect evidence. Kilgore v.\nBrookeland Indep. Sch. Dist., 538 F. App’x 473, 475–76 (5th Cir. 2013) (per\ncuriam) (unpublished); see also Reed v. Neopost USA, Inc., 701 F.3d 434, 441\n(5th Cir. 2012).\n “Direct evidence of discrimination . . . prove[s] the existence of a fact . . .\nwithout any inferences or presumptions.” Bodenheimer v. PPG Indus., Inc., 5\nF.3d 955, 958 (5th Cir. 1993). Most often, direct evidence takes the form of a\ndiscriminatory statement directly connected to the plaintiff’s discharge. See\nMoss, 610 F.3d at 929.\n If the plaintiff cannot prove his case with direct evidence of\ndiscriminatory motive, he can still rely on indirect evidence. When confronting\nindirect evidence, courts use the burden-shifting framework from McDonnell\nDouglas Corp. v. Green, 411 U.S. 792 (1973). See Reeves v. Sanderson\nPlumbing Prod., Inc., 530 U.S. 133, 142 (2000); Bienkowski v. Am. Airlines,\nInc., 851 F.2d 1503, 1504 (5th Cir. 1988). Under this framework, a plaintiff\nmust first “put forth a prima facie case.” Berquist v. Wash. Mut. Bank, 500\nF.3d 344, 349 (5th Cir. 2007). After making out a prima facie case, “the burden\n 7\n\f Case: 19-60011 Document: 00515074647 Page: 8 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\nshifts to the employer to provide a legitimate, non-discriminatory reason for\nthe employment decision.” Id. If the employer articulates such a reason, the\nplaintiff must rebut the employer’s purported explanation by showing that the\nreason given is merely pretextual. Jackson v. Cal–Western Packaging Corp.,\n602 F.3d 374, 378–79 (5th Cir. 2010).\n Here, the parties agree that McMichael has made out a prima facie case\nof employment discrimination. 4 The parties disagree on the next two steps.\nFirst, McMichael argues that Transocean did not provide a legitimate, non-\ndiscriminatory reason for firing him. McMichael’s argument here is frivolous.\nTransocean’s proffered reason for firing McMichael was a broad reduction in\nforce. This court has repeatedly held that a reduction in force is a legitimate\nreason for firing someone. See Kilgore, 538 F. App’x at 477 (holding that “[a]\nreduction in force is a legitimate, nondiscriminatory reason for discharge”);\nTyler v. La-Z-Boy Corp., 506 F. App’x 265, 269–70 (5th Cir. 2013) (same);\nE.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (same).\n Second, McMichael argues that any reasons Transocean provided were\nmere pretext for discrimination. This disagreement is the heart of the case,\nand it centers on the final step of the burden-shifting framework: whether\nTransocean’s reasons for firing McMichael were pretext for age discrimination.\n\n\n 4In a typical ADEA case, the plaintiff must show that “(1) he was discharged; (2) he\nwas qualified for the position; (3) he was within the protected class at the time of discharge;\nand (4) he was either i) replaced by someone outside the protected class, ii) replaced by\nsomeone younger, or iii) otherwise discharged because of his age.” Bodenheimer, 5 F.3d at\n957.\n\n In a reduction-in-force case, a party makes out a prima facie case of age discrimination\nby showing “(1) that he is within the protected age group; (2) that he has been adversely\naffected by the employer’s decision; (3) that he was qualified to assume another position at\nthe time of the discharge; and (4) ‘evidence, circumstantial or direct, from which a factfinder\nmight reasonably conclude that the employer intended to discriminate in reaching the\ndecision at issue.’” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting\nAmburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir. 1991)).\n\n 8\n\f Case: 19-60011 Document: 00515074647 Page: 9 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\nAt summary judgment, McMichael must offer enough evidence to raise a\ngenuine question of fact regarding Transocean’s reasons for firing him.\n To show pretext, a plaintiff must present enough evidence for a\nreasonable jury to believe that Transocean’s “reasons are pretexts for unlawful\ndiscrimination.” Bienkowski, 851 F.2d at 1505. A plaintiff can do so by\nshowing that: (1) “a discriminatory reason more likely motivated” the\nemployer, id.; (2) the employer’s “reason is unworthy of credence,” id.; or (3) he\n“is ‘clearly better qualified’ than the person selected for the position,” Burrell\nv. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007).\n“The plaintiff retains the burden of persuading the fact finder that\nimpermissible discrimination motivated the adverse employment decision.”\nBienkowski, 851 F.2d at 1505.\n To undermine Transocean’s reasons for firing him, McMichael points to\nthree types of evidence, all of which, he argues, show a discriminatory motive\nfor firing him: (1) allegedly discriminatory comments, (2) hiring a younger,\nless-qualified candidate, and (3) the way Transocean applied the high-grading\nprocess to McMichael.\nA. Discriminatory Comments\n A plaintiff can show pretext and discriminatory motive by pointing to\nage-related comments made by a person in charge of firing. A plaintiff can use\nthese comments in both direct and indirect evidence cases. In direct evidence\ncases, comments must meet a demanding standard because the plaintiff relies\non them “to prove the entire case of discrimination.” Goudeau v. Nat’l Oilwell\nVarco, L.P., 793 F.3d 470, 475 (5th Cir. 2015). For age-related comments to\nshow pretext in a direct evidence case, they must be more than “stray\nremarks.” Tex. Instruments, 100 F.3d at 1181 (“This court has repeatedly held\nthat ‘stray remarks’ do not demonstrate age discrimination.”). To rise above\nthe level of a stray remark, an age-related comment must “be direct and\n 9\n\f Case: 19-60011 Document: 00515074647 Page: 10 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\nunambiguous, allowing a reasonable jury to conclude without any inferences\nor presumptions that age was an impermissible factor in the decision to\nterminate the employee.” Id. More specifically, for a comment to prove age\ndiscrimination it must be “1) age related, 2) proximate in time to the\nemployment decision, 3) made by an individual with authority over the\nemployment decision at issue, and 4) related to the employment decision at\nissue.” Moss, 610 F.3d at 929 (internal quotation marks omitted) (quoting\nMedina v. Ramsey Steel Co., Inc., 238 F.3d 674, 683 (5th Cir. 2001).\n While the plaintiff must connect age-related comments to a person with\npower over the firing decision, the plaintiff can satisfy this requirement by\nshowing that the speaker “is in a position to influence the decision.” Palasota\nv. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir. 2003). Similarly, age-\nrelated comments “‘are appropriately taken into account’ . . . even where the\ncomment is not in the direct context of the termination.” Id. (citing Russell v.\nMcKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000)). If comments do\nnot meet this standard, then they cannot defeat summary judgment. See\nJackson v. Cal–W. Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010)\n(“Comments that do not meet these criteria are considered ‘stray remarks,’ and\nstanding alone, are insufficient to defeat summary judgment.” (citations\nomitted)).\n In indirect evidence cases, courts apply a less demanding standard\nbecause “the discriminatory remarks are just one ingredient in the overall\nevidentiary mix.” Goudeau, 793 F.3d at 475 (holding that discriminatory\nremarks are relevant at the pretext stage and a less “demanding test applies”).\nUnder this less demanding standard, the plaintiff must show that the\ncomments involve “(1) discriminatory animus (2) on the part of a person that\nis either primarily responsible for the challenged employment action or by a\nperson with influence or leverage over the relevant decisionmaker.” Squyres\n 10\n\f Case: 19-60011 Document: 00515074647 Page: 11 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\nv. Heico Cos., L.L.C., 782 F.3d 224, 236 (5th Cir. 2015) (quoting Reed, 701 F.3d\nat 441).\n Here, McMichael first attempts to overcome summary judgment with\nstatements made by Robert Owen, as Offshore Installation Manager on the\nDCL. According to McMichael, Owen told him that he “had nothing to worry\nabout” because he could receive his “pension without receiving a financial\npenalty from the IRS.” This statement falls short under both the direct and\nindirect evidence standards because (1) it does not reflect any discriminatory\nanimus, and (2) Owen did not have any influence over the decision to terminate\nMcMichael.\n Courts typically only find a statement to be evidence of age\ndiscrimination in two situations. First, courts will find evidence of age\ndiscrimination where a statement references age in a derogatory or\nstereotypical way. See, e.g., Rachid, 376 F.3d at 315 (finding evidence of age\ndiscrimination where the employer told the plaintiff “. . . you’re too old”).\nSecond, courts will find evidence of age discrimination where the employer’s\nstatement shows a desire to replace older employees with younger ones. See,\ne.g., Palasota, 342 F.3d at 577–78 (finding sufficient evidence to sustain a jury\nverdict where the employer stated that the plaintiff’s “sales techniques were\nout of the ‘old school’ of selling”; commented that “there was a ‘graying of the\nsales force’” and the employer needed “to find a way to get through it;” and\nrecommended severance packages for fourteen named employees, all of whom\nwere specifically identified as over fifty years of age, to create “the flexibility to\nbring on some new players”). Neither situation is present here.\n Commenting on McMichael’s eligibility for retirement does not reference\nage in a derogatory or stereotypical way. Nor does it show a desire to replace\nolder employees with younger ones. It also does not imply that McMichael’s\n\n\n 11\n\f Case: 19-60011 Document: 00515074647 Page: 12 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\nage was the reason he was fired, especially in the context of a reduction in\nforce. The case law supports this interpretation.\n This court previously held that nearly the exact same statement did not\ndirectly show discriminatory motive. Kilgore, 538 F. App’x at 476. In Kilgore,\nthis court held that the plaintiff failed to show discriminatory motive even\nthough his boss said that he was “eligible for retirement.” Id. (“We agree with\nBrookeland and the district court that the superintendent’s alleged comment\nthat Kilgore was “eligible for retirement” is not direct evidence from which a\nreasonable jury could conclude that Brookeland terminated Kilgore because of\nhis age.” (emphasis added)). Such a statement, the court held, “did not imply”\nthat his eligibility “was the reason for discharge.” Id. (citing Tex. Instruments,\n100 F.3d at 1181). It “simply recognized a fact concerning” the plaintiff’s\neligibility. Id. This benign interpretation of the statement was also “consistent\nwith the context in which it was allegedly made,” since “it was natural for the\n[decisionmaker] to inform [the plaintiff] of the benefits to which he was entitled\nupon his termination.” Id.\n Like in Kilgore, the speaker merely informed McMichael of his eligibility\nfor retirement benefits. The statement did not reflect any stereotypes about\nage, evince a desire to replace older employees with younger ones, or suggest\nthat McMichael was fired for his age. In the context of a reduction in force, it\nwas natural for employees to discuss benefits available if they were\nterminated. And McMichael has not produced any evidence suggesting an\nalternative interpretation.\n McMichael also failed to connect this statement to a person with\ninfluence over the decision to fire him. While McMichael does not need to\nconnect this statement to the “formal decision maker,” he must show that the\nspeaker is “in a position to influence the decision.” Palasota, 342 F.3d at 578.\nBut McMichael shows the exact opposite—he admits that Owen “was no longer\n 12\n\f Case: 19-60011 Document: 00515074647 Page: 13 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\nthe [Offshore Installation Manager] on the [DCL] at the time” he was fired.\nAnd no other evidence shows, or even suggests, that Owen had any influence\nover the decision to terminate McMichael.\nB. Hiring a Less Qualified Candidate\n Another way that a plaintiff can show pretext is by pointing out that the\nemployer replaced the plaintiff with a younger, “clearly less qualified”\nemployee. Tex. Instruments, 100 F.3d at 1181; see also Walther v. Lone Star\nGas Co., 952 F.2d 119, 123 (5th Cir. 1992) (“[A] plaintiff can take his case to a\njury with evidence that he was clearly better qualified than younger employees\nwho were retained.” (citing Thornbrough v. Columbus & Greenville R.R. Co.,\n760 F.2d 633, 647 (5th Cir. 1985)). The “bar,” however, “is set high for this\nkind of evidence.” Moss, 610 F.3d at 922–23 (citing Celestine v. Petroleos de\nVenezuella SA, 266 F.3d 343, 357 (5th Cir. 2001)). A plaintiff cannot satisfy\nhis burden by showing a large discrepancy in age. See Inmon v. Mueller Copper\nTube Co., Inc., 757 F. App’x 376, 382 (5th Cir. 2019) (unpublished) (“In sum,\nwe hold that a significant difference in age, standing alone, is insufficient\nevidence of pretext . . . .”). Nor can the plaintiff satisfy his burden by showing\nthat he is “merely better than or as qualified” as his replacement. Moss, 610\nF.3d at 923 (quoting E.E.O.C. v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444\n(5th Cir. 1995)). Instead, he must show that his replacement, if any, is clearly\nless qualified.\n To carry this heavy burden, a plaintiff must show that “the qualifications\nare so widely disparate that no reasonable employer would have made the\nsame decision.” Moss, 610 F.3d at 923 (citing Celestine, 266 F.3d at 357).\nDifferently put, the plaintiff must submit “evidence from which a jury could\nconclude that ‘no reasonable person, in the exercise of impartial judgment,\ncould have chosen the candidate selected over the plaintiff for the job in\n\n\n 13\n\f Case: 19-60011 Document: 00515074647 Page: 14 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\nquestion.’” Id. (citing Deines v. Tex. Dep’t of Protective & Regulatory Servs., 164\nF.3d 277, 280–81 (5th Cir. 1999)).\n Here, McMichael does not attempt to show that Eckert was clearly less\nqualified. He doesn’t challenge the high-grade system score assigned to Eckert,\nand he doesn’t directly challenge his high-grade score with facts showing that\nhe was so qualified that Transocean should not have fired him. Notably,\nMcMichael never addresses Eckert’s performance rating of 84%, which is\nhigher than his own performance rating of 71%. Even if he did directly\nchallenge his high-grade score, his own qualifications are less relevant in a\nreduction-in-force case. See Tex. Instruments, 100 F.3d at 1181 (“In the context\nof a reduction in force . . . the fact that an employee is qualified for his job is\nless relevant—some employees may have to be let go despite competent\nperformance.”).\nC. Departing from Procedure\n A plaintiff can also show pretext by showing a departure from standard\nprocedure. But mere deviations from policy, or a disagreement about how to\napply company policy, do not show pretext. See Campbell v. Zayo Grp., L.L.C.,\n656 F. App’x 711, 715 (5th Cir. 2016) (per curiam) (unpublished) (holding that\n“mere disagreement with [the employer’s] application of the [reduction-in-\nforce] policy, without more, does not provide substantial evidence of pretext”).\nThe ADEA does not “protect older employees from erroneous or even arbitrary\npersonnel decisions, but only from decisions which are unlawfully motivated.”\nMoss, 610 F.3d at 926 (quoting Bienkowski, 851 F.2d at 1507–08). Plaintiffs,\ntherefore, must connect a departure from or misapplication of procedure to a\ndiscriminatory motive—an employer’s “disregard of its own hiring system does\nnot of itself conclusively establish that improper discrimination occurred or\nthat a nondiscriminatory explanation for an action is pretextual.” Risher v.\nAldridge, 889 F.2d 592, 597 (5th Cir. 1989).\n 14\n\f Case: 19-60011 Document: 00515074647 Page: 15 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\n Here, McMichael also argues that Transocean inconsistently applied the\nhigh-grading process to him. The main thrust of McMichael’s argument\ncenters on a discrepancy in the evidence. On a chart showing all the\ntoolpushers who were fired and retained, McMichael received a higher\nperformance score than Eckert. Importantly, Eckert is younger and, according\nto McMichael, less qualified than him. McMichael argues that these two facts\nshow that Transocean did not fire him because of his performance review—\nthey fired him because of his age.\n Transocean argues that the chart does not reflect McMichael’s final high-\ngrading score—it only reflects his score on the performance parameter.\nEckert’s score, on the other hand, reflects all three parameters: performance,\nranking, and potential. The chart, in other words, is incomplete because\nTransocean made a simple scrivener’s error. This error is understandable,\nthey argue, because they cold stacked six rigs in early 2015, forcing them to\nrank and terminate a selection of 989 employees quickly.\n McMichael’s argument is unconvincing. While a departure from\nprocedure can show discriminatory motive, McMichael does not give any\nreasons to doubt Transocean’s explanation for the discrepancy on the rating\nchart, which makes the difference in the chart look like an accidental departure\nfrom procedure. This court, however, does not find discriminatory motive\nmerely because an employer misapplies a reduction-in-force policy. Campbell,\n656 F. App’x at 715 (holding that “mere disagreement with [the employer’s]\napplication of the [reduction-in-force] policy, without more, does not provide\nsubstantial evidence of pretext”); Tex. Instruments, 100 F.3d at 1182 (finding\nno pretext where employer departed from original “layoff policy” in favor of a\nnew one); Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993) (rejecting\na claim based only on “[p]roof that an employer did not follow correct or\nstandard procedures in the termination or demotion of an employee”). Even if\n 15\n\f Case: 19-60011 Document: 00515074647 Page: 16 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\na plaintiff can show that an employer consciously disregarded “its own hiring\nsystem,” that showing, on its own, does not “conclusively establish that\nimproper discrimination occurred or that a nondiscriminatory explanation for\nan action is pretextual.” Risher, 889 F.2d at 597.\nD. Additional Factors\n Beyond these shortcomings, two other factors further undercut\nMcMichael’s arguments. First, on numerous occasions, this court has held that\ndiscrimination is less likely when the supervisor is in the same protected class\nas the plaintiff. See Kelly v. Costco Wholesale Corp., 632 F. App’x 779, 783 (5th\nCir. 2015) (“[The plaintiff’s] membership in the same protected class as [the\nsupervisor] bolsters the inference that age discrimination was not the reason\nfor his termination.”); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.\n1996), abrogated on other grounds by Reeves, 530 U.S. at 134 (holding that,\nsince the 58-year-old plaintiff was fired by his 60-year-old employer, there was\nan inference that “age discrimination was not the motive”).\n Two of the three people who rated and fired McMichael—Mosley and\nKennedy—were both in the same protected class. Mosley was 57 years old,\nand Kennedy was 51 years old. Their ages make discrimination less likely.\n Second, Transocean fired numerous employees who were younger and\nmore qualified than McMichael. This court has held before that age\ndiscrimination is less likely when the employer retains other older employees\nand fires younger ones. Kelly, 632 F. App’x at 783 (noting it was unlikely\nplaintiff was discriminated against when “one meat-department employee who\nwas only 36 years old was also dismissed, while another who was 47 years old\nkept his job”); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir.\n1995) (reversing ADEA plaintiff’s jury verdict even though an older employee\nwas retained while other employees under the age of 40 were terminated). In\n\n\n 16\n\f Case: 19-60011 Document: 00515074647 Page: 17 Date Filed: 08/13/2019\n\n\n\n No. 19-60011\nsuch situations, “[t]he logical inference is that age was not a factor.” Kelly, 632\nF. App’x at 783.\n Here, no evidence shows that age was a factor in any of Transocean’s\nfiring decisions. Transocean fired numerous employees who were younger and\nmore qualified than McMichael. For example, Transocean fired one employee\nwho was 38 years old and had a high-grade score of 92%. And on the DCL,\nTransocean retained only one toolpusher. While he was younger than\nMcMichael at 49 years old, he scored well above McMichael’s 71% (or 59%)\nwith a total high-grade score of 85%. Besides McMichael, the other two\ntoolpushers fired from the DCL were both younger than the one retained\ntoolpusher, but both received lower high-grade scores—one is 48 years old and\nscored 72%, the other is 35 years old and scored 71%. This evidence suggests\nthat Kennedy retained the most qualified employees.\n A more fundamental problem is that all but one of the toolpushers on the\nDCL, including Eckert, were terminated. And the one toolpusher they retained\nwas clearly more qualified than McMichael, and he was not the youngest\ntoolpusher on the rig. McMichael failed to meet the high burden of showing\nthat Transocean chose to discriminate against him even though they were\nfiring almost every toolpusher on the DCL anyways. The most reasonable\nexplanation is the one Transocean gave: a massive reduction in force due to a\ndownturn in the oil and gas industry.\n III. CONCLUSION\n For the foregoing reasons, we AFFIRM the district court’s grant of\nsummary judgment.\n\n\n\n\n 17\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Robert MCMICHAEL, Plaintiff - Appellant v. TRANSOCEAN OFFSHORE DEEPWATER DRILLING, INCORPORATED; Transocean RIGP DCL, L.L.C.; Transocean Offshore USA, Incorporated, Defendants - Appellees\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 19-60011 Document: 00515074647 Page: 1 Date Filed: 08/13/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n No. 19-60011 FILED\\n August 13, 2019\\n\\nROBERT MCMICHAEL, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellant\\n\\nv.\\n\\nTRANSOCEAN OFFSHORE DEEPWATER DRILLING, INCORPORATED;\\nTRANSOCEAN RIGP DCL, L.L.C.; TRANSOCEAN OFFSHORE USA,\\nINCORPORATED,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\nBefore STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.\\nCARL E. STEWART, Chief Judge:\\n Between 2014 and 2018, the defendants, Transocean Offshore\\nDeepwater et al., reduced their offshore fleet by 59%. While reducing their\\nfleet, Transocean fired the plaintiff, Robert McMichael, along with over 7,300\\nother employees. McMichael claims he was fired because of his age, in\\nviolation of the Age Discrimination in Employment Act (“ADEA”). Transocean\\nargues that they fired him for other reasons, just like the thousands of other\\nemployees they let go in the same period.\\n The district court agreed with Transocean, granting their motion for\\nsummary judgment. According to the district court, McMichael failed to raise\\n\\f Case: 19-60011 Document: 00515074647 Page: 2 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\na genuine question of material fact about Transocean’s reasons for firing him.\\nThe sole issue on appeal is whether McMichael presented enough evidence to\\nshow that Transocean’s reasons for firing him were pretext for age\\ndiscrimination. Because we agree that McMichael failed to raise a genuine\\nissue of material fact, we AFFIRM.\\n I. FACTUAL BACKGROUND & PROCEDURAL HISTORY\\nA. Factual Background\\n In 2001, Transocean hired McMichael as a Driller I, assigning him to an\\noffshore drilling rig. He was 46 years old. Over the next eight years, he worked\\nas a driller and toolpusher on various rigs, earning several promotions and pay\\nraises. 1 Then, in 2009, Transocean assigned him to a rig called the Discoverer\\nClear Leader (“DCL”). He worked on the DCL until Transocean fired him in\\nApril of 2015. He was 59 years old.\\n McMichael’s firing came in the middle of a large downturn in the oil and\\ngas industry. From 2014 until July of 2018, Transocean reduced its offshore\\nfleet by 44 rigs. The reduction in rigs also led to a large reduction in workforce.\\nDuring this period, Transocean fired 7,320 employees. Transocean also cut\\nalmost half of its toolpusher workforce. In less than two years, they laid off 25\\ntoolpushers—48% of all toolpushers.\\n In early 2015, when McMichael was fired, Transocean “cold stacked” six\\ndrilling rigs, reducing the employees on those rigs from 989 to 0. The DCL was\\none of those rigs. Transocean fired 80 employees from the DCL before\\neventually taking the entire rig out of service in November of 2017.\\nTransocean fired all but one toolpusher from the DCL.\\n\\n\\n\\n\\n 1 A toolpusher is a location supervisor for the drilling contractor. Toolpushers are\\ntypically senior, experienced drillers, and their duties are largely administrative.\\n 2\\n\\f Case: 19-60011 Document: 00515074647 Page: 3 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\n The task of managing the workforce reduction fell on Transocean’s HR\\nDepartment, which devised and implemented a system for the project. The\\nsystem was called the “high-grading process.”\\n At a high level, the high-grading process ranked employees so that\\nTransocean could retain its top talent. Higher-ranked employees were more\\nlikely to keep their jobs; lower-ranked employees were more likely to lose\\ntheirs.\\n At a more granular level, the high-grading process had three basic\\nparameters—(1) performance, (2) ranking, and (3) potential. Performance is a\\nscore based on the employee’s most recent performance appraisal, which has\\ntwo components: the Total Performance Score and the Appraisal Score. An\\nemployee can receive one of five possible Total Performance Scores: 1 being\\nUnsatisfactory, 2 being Conditional, 3 being Fully Successful, 4 being Superior,\\nand 5 being Outstanding. These scores are then converted into a percentage:\\nUnsatisfactory equaling 40%, Conditional equaling 60%, Fully Successful\\nequaling 80%, Superior equaling 100%, and Outstanding equaling 120%.\\n The Appraisal Score is based on the total number of points an employee\\nscores on his most recent performance appraisal. Reviewers assign employees\\npoints in response to twelve different questions. For example, reviewers must\\ndetermine each employee’s “Knowledge of Tasks & Operation,” “Delegating\\nAuthority and Responsibility,” and “Professionalism.” Each question is worth\\nsix possible points, making the maximum score 72 points. Transocean then\\ndivides the employee’s actual score by 72, producing the Appraisal Score. They\\nthen average the Total Performance Score with the Appraisal Score to produce\\nthe performance metric. So, for example, if an employee receives a Total\\nPerformance Score of Superior (100%) and receives 62 out of 72 points on the\\nAppraisal Score (86%), he will receive a performance score of 93%.\\n\\n\\n 3\\n\\f Case: 19-60011 Document: 00515074647 Page: 4 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\n The second parameter—ranking—is set by the rig manager. A rig\\nmanager sets an employee’s ranking by comparing him to all other employees\\nwith the same job title on the rig the manager oversees. For example, if a\\nmanager oversees five toolpushers, he must rank them from first to fifth. After\\nassigning the employee a ranking, the manager combines the ranking with\\n“additional performance-related factors” to produce the employee’s ranking\\nscore, which is expressed as a percentage. .\\n Rig managers also assign the final parameter—potential. Potential\\nrefers to the employee’s potential for promotion to the next position or higher.\\nIf the manager thinks the employee has no potential for promotion, he assigns\\nthe employee a score of zero, and the employee receives a potential percentage\\nscore of 60%. If the manager assigns a potential score of one, the employee\\nreceives a potential percentage score of 80%. A score of two or higher earns\\nthe employee a potential percentage score of 100%.\\n After setting these three measures, Transocean averages them to\\ndetermine the employee’s “Total Score.” Because these rankings are difficult\\nto apply across rigs, given that each rig manager oversees only a handful of\\ntoolpushers, the HR Department noted that they are merely meant to facilitate\\nconversations between the HR Department and rig managers, who retain\\nultimate responsibility for the lay-off decisions.\\n McMichael’s last performance appraisal came in 2014. Gary Mosley and\\nRobert Blansett completed the appraisal and assigned McMichael a Total\\nPerformance Score of 3 “Fully Successful.” This earned him a score of 80%.\\nMcMichael scored 61% on the Appraisal Score, earning 44 out of 72 possible\\npoints. Averaging these two scores, his final performance score was 71%.\\n After the performance appraisal, Robert Kennedy, the rig manager,\\nassigned McMichael his ranking and potential scores. He ranked McMichael\\nfourth out of the four toolpushers under his supervision, which translated to\\n 4\\n\\f Case: 19-60011 Document: 00515074647 Page: 5 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\n25%. He also assigned McMichael a 0 for potential, which earned him a\\npotential score of 60%. Kennedy assigned McMichael these low scores because\\n(1) he spent more time in the toolpusher office than he should have; (2) he did\\nnot have great leadership skills; (3) his computer skills were weak; (4) he did\\nnot interact well with customers; and (5) he did not have strong planning skills.\\nHis final score was 52%. After assigning ranking and potential scores,\\nKennedy discussed McMichael with the HR Department and made the decision\\nto fire him on April 25, 2015. Kennedy did not know McMichael’s age when he\\nfired him.\\n After firing McMichael, Kennedy was responsible for hiring his\\nreplacement. He chose Jody Eckert. Eckert was 49 years old and received a\\nrating of 4 “Superior” on his most recent performance appraisal, earning him\\na Total Performance Score of 100%. 2 He earned an Appraisal Score of 67%,\\nreceiving 48 out of 72 possible points. Eckert’s final performance score was\\n84% when rounded up. His manager also assigned him a ranking of 33%, and\\nhis potential score was 60%. The average of Mr. Eckert’s performance,\\nranking, and potential scores is 59%. 3 Eckert was fired in September of 2016\\nas part of ongoing workforce reductions.\\n\\n\\nB. Procedural History\\n McMichael sued Transocean in September of 2016, alleging, among other\\nthings, that Transocean discriminated against him based on his age. After\\n\\n\\n\\n\\n 2 Kennedy did not know Eckert’s age when he selected him.\\n\\n 3 Despite the scores above, a performance rating chart in the record shows McMichael\\nas having a total high-grade score of 71%. Transocean explains that this number reflects\\nonly McMichael’s performance score, not his total high-grade score of 52%. Because\\nTransocean cold stacked six rigs in early 2015, they ranked and terminated many employees\\nquickly, leading to a typographical error on the performance rating chart.\\n 5\\n\\f Case: 19-60011 Document: 00515074647 Page: 6 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\nwritten discovery and depositions, Transocean moved for summary judgment\\nin July of 2018. The district court granted the motion.\\n The district court first assumed that McMichael could make out a prima\\nfacie case of age discrimination. The court then affirmed a reduction in force\\nwas a legitimate, nondiscriminatory reason for terminating McMichael. The\\nbulk of the court’s opinion dealt with whether Transocean’s proffered reasons\\nfor firing McMichael were pretextual.\\n According to the court, McMichael could not call into question\\nTransocean’s reason for firing him. While McMichael was replaced by someone\\nyounger, he did not show that his replacement was less qualified. All that\\nMcMichael showed was that “perhaps Transocean made some mistake in their\\nscoring.” And such a mistake is not enough to overcome summary judgment.\\n The court also held that statements made by Robert Owen—a former\\nOffshore Installation Manager on the DCL—did not indicate any\\ndiscriminatory motive. And other factors showed a lack of discriminatory\\nintent.\\n II. DISCUSSION\\n This court reviews a district court’s grant of summary judgment de novo.\\nE.E.O.C. v. WC & M Enters., Inc., 496 F.3d 393, 397 (5th Cir. 2007). Summary\\njudgment is proper “if the movant shows that there is no genuine dispute as to\\nany material fact and the movant is entitled to judgment as a matter of law.”\\nFed. R. Civ. P. 56(a). There is no genuine issue for trial when “the record taken\\nas a whole could not lead a rational trier of fact to find for the non-moving\\nparty.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587\\n(1986). All facts must be viewed in the light most favorable to the non-moving\\nparty and all reasonable inferences drawn in its favor. WC & M, 496 F.3d at\\n397.\\n\\n\\n 6\\n\\f Case: 19-60011 Document: 00515074647 Page: 7 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\n Under the ADEA, an employer cannot “discharge any individual . . .\\nbecause of such individual’s age.” 29 U.S.C. § 623(a)(1); see also Rachid v. Jack\\nIn The Box, Inc., 376 F.3d 305, 308–09 (5th Cir. 2004). To establish an ADEA\\nclaim, the plaintiff must show that his age was the “but-for” cause of his\\ntermination—proving that age was a “motivating factor” for the decision is not\\nenough. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) (holding that\\na “plaintiff must prove by a preponderance of the evidence . . . that age was the\\n‘but-for’ cause of the challenged employer decision”); see also Moss v. BMC\\nSoftware, Inc., 610 F.3d 917, 928 (5th Cir. 2010) (“[T]he Supreme Court\\nrejected the application of Title VII’s ‘motivating factor’ standard to ADEA\\ncases.” (citing Gross, 557 U.S. at 173–78)). A plaintiff may prove that age was\\na but-for cause of his firing with direct or indirect evidence. Kilgore v.\\nBrookeland Indep. Sch. Dist., 538 F. App’x 473, 475–76 (5th Cir. 2013) (per\\ncuriam) (unpublished); see also Reed v. Neopost USA, Inc., 701 F.3d 434, 441\\n(5th Cir. 2012).\\n “Direct evidence of discrimination . . . prove[s] the existence of a fact . . .\\nwithout any inferences or presumptions.” Bodenheimer v. PPG Indus., Inc., 5\\nF.3d 955, 958 (5th Cir. 1993). Most often, direct evidence takes the form of a\\ndiscriminatory statement directly connected to the plaintiff’s discharge. See\\nMoss, 610 F.3d at 929.\\n If the plaintiff cannot prove his case with direct evidence of\\ndiscriminatory motive, he can still rely on indirect evidence. When confronting\\nindirect evidence, courts use the burden-shifting framework from McDonnell\\nDouglas Corp. v. Green, 411 U.S. 792 (1973). See Reeves v. Sanderson\\nPlumbing Prod., Inc., 530 U.S. 133, 142 (2000); Bienkowski v. Am. Airlines,\\nInc., 851 F.2d 1503, 1504 (5th Cir. 1988). Under this framework, a plaintiff\\nmust first “put forth a prima facie case.” Berquist v. Wash. Mut. Bank, 500\\nF.3d 344, 349 (5th Cir. 2007). After making out a prima facie case, “the burden\\n 7\\n\\f Case: 19-60011 Document: 00515074647 Page: 8 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\nshifts to the employer to provide a legitimate, non-discriminatory reason for\\nthe employment decision.” Id. If the employer articulates such a reason, the\\nplaintiff must rebut the employer’s purported explanation by showing that the\\nreason given is merely pretextual. Jackson v. Cal–Western Packaging Corp.,\\n602 F.3d 374, 378–79 (5th Cir. 2010).\\n Here, the parties agree that McMichael has made out a prima facie case\\nof employment discrimination. 4 The parties disagree on the next two steps.\\nFirst, McMichael argues that Transocean did not provide a legitimate, non-\\ndiscriminatory reason for firing him. McMichael’s argument here is frivolous.\\nTransocean’s proffered reason for firing McMichael was a broad reduction in\\nforce. This court has repeatedly held that a reduction in force is a legitimate\\nreason for firing someone. See Kilgore, 538 F. App’x at 477 (holding that “[a]\\nreduction in force is a legitimate, nondiscriminatory reason for discharge”);\\nTyler v. La-Z-Boy Corp., 506 F. App’x 265, 269–70 (5th Cir. 2013) (same);\\nE.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996) (same).\\n Second, McMichael argues that any reasons Transocean provided were\\nmere pretext for discrimination. This disagreement is the heart of the case,\\nand it centers on the final step of the burden-shifting framework: whether\\nTransocean’s reasons for firing McMichael were pretext for age discrimination.\\n\\n\\n 4In a typical ADEA case, the plaintiff must show that “(1) he was discharged; (2) he\\nwas qualified for the position; (3) he was within the protected class at the time of discharge;\\nand (4) he was either i) replaced by someone outside the protected class, ii) replaced by\\nsomeone younger, or iii) otherwise discharged because of his age.” Bodenheimer, 5 F.3d at\\n957.\\n\\n In a reduction-in-force case, a party makes out a prima facie case of age discrimination\\nby showing “(1) that he is within the protected age group; (2) that he has been adversely\\naffected by the employer’s decision; (3) that he was qualified to assume another position at\\nthe time of the discharge; and (4) ‘evidence, circumstantial or direct, from which a factfinder\\nmight reasonably conclude that the employer intended to discriminate in reaching the\\ndecision at issue.’” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting\\nAmburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir. 1991)).\\n\\n 8\\n\\f Case: 19-60011 Document: 00515074647 Page: 9 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\nAt summary judgment, McMichael must offer enough evidence to raise a\\ngenuine question of fact regarding Transocean’s reasons for firing him.\\n To show pretext, a plaintiff must present enough evidence for a\\nreasonable jury to believe that Transocean’s “reasons are pretexts for unlawful\\ndiscrimination.” Bienkowski, 851 F.2d at 1505. A plaintiff can do so by\\nshowing that: (1) “a discriminatory reason more likely motivated” the\\nemployer, id.; (2) the employer’s “reason is unworthy of credence,” id.; or (3) he\\n“is ‘clearly better qualified’ than the person selected for the position,” Burrell\\nv. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007).\\n“The plaintiff retains the burden of persuading the fact finder that\\nimpermissible discrimination motivated the adverse employment decision.”\\nBienkowski, 851 F.2d at 1505.\\n To undermine Transocean’s reasons for firing him, McMichael points to\\nthree types of evidence, all of which, he argues, show a discriminatory motive\\nfor firing him: (1) allegedly discriminatory comments, (2) hiring a younger,\\nless-qualified candidate, and (3) the way Transocean applied the high-grading\\nprocess to McMichael.\\nA. Discriminatory Comments\\n A plaintiff can show pretext and discriminatory motive by pointing to\\nage-related comments made by a person in charge of firing. A plaintiff can use\\nthese comments in both direct and indirect evidence cases. In direct evidence\\ncases, comments must meet a demanding standard because the plaintiff relies\\non them “to prove the entire case of discrimination.” Goudeau v. Nat’l Oilwell\\nVarco, L.P., 793 F.3d 470, 475 (5th Cir. 2015). For age-related comments to\\nshow pretext in a direct evidence case, they must be more than “stray\\nremarks.” Tex. Instruments, 100 F.3d at 1181 (“This court has repeatedly held\\nthat ‘stray remarks’ do not demonstrate age discrimination.”). To rise above\\nthe level of a stray remark, an age-related comment must “be direct and\\n 9\\n\\f Case: 19-60011 Document: 00515074647 Page: 10 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\nunambiguous, allowing a reasonable jury to conclude without any inferences\\nor presumptions that age was an impermissible factor in the decision to\\nterminate the employee.” Id. More specifically, for a comment to prove age\\ndiscrimination it must be “1) age related, 2) proximate in time to the\\nemployment decision, 3) made by an individual with authority over the\\nemployment decision at issue, and 4) related to the employment decision at\\nissue.” Moss, 610 F.3d at 929 (internal quotation marks omitted) (quoting\\nMedina v. Ramsey Steel Co., Inc., 238 F.3d 674, 683 (5th Cir. 2001).\\n While the plaintiff must connect age-related comments to a person with\\npower over the firing decision, the plaintiff can satisfy this requirement by\\nshowing that the speaker “is in a position to influence the decision.” Palasota\\nv. Haggar Clothing Co., 342 F.3d 569, 578 (5th Cir. 2003). Similarly, age-\\nrelated comments “‘are appropriately taken into account’ . . . even where the\\ncomment is not in the direct context of the termination.” Id. (citing Russell v.\\nMcKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000)). If comments do\\nnot meet this standard, then they cannot defeat summary judgment. See\\nJackson v. Cal–W. Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010)\\n(“Comments that do not meet these criteria are considered ‘stray remarks,’ and\\nstanding alone, are insufficient to defeat summary judgment.” (citations\\nomitted)).\\n In indirect evidence cases, courts apply a less demanding standard\\nbecause “the discriminatory remarks are just one ingredient in the overall\\nevidentiary mix.” Goudeau, 793 F.3d at 475 (holding that discriminatory\\nremarks are relevant at the pretext stage and a less “demanding test applies”).\\nUnder this less demanding standard, the plaintiff must show that the\\ncomments involve “(1) discriminatory animus (2) on the part of a person that\\nis either primarily responsible for the challenged employment action or by a\\nperson with influence or leverage over the relevant decisionmaker.” Squyres\\n 10\\n\\f Case: 19-60011 Document: 00515074647 Page: 11 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\nv. Heico Cos., L.L.C., 782 F.3d 224, 236 (5th Cir. 2015) (quoting Reed, 701 F.3d\\nat 441).\\n Here, McMichael first attempts to overcome summary judgment with\\nstatements made by Robert Owen, as Offshore Installation Manager on the\\nDCL. According to McMichael, Owen told him that he “had nothing to worry\\nabout” because he could receive his “pension without receiving a financial\\npenalty from the IRS.” This statement falls short under both the direct and\\nindirect evidence standards because (1) it does not reflect any discriminatory\\nanimus, and (2) Owen did not have any influence over the decision to terminate\\nMcMichael.\\n Courts typically only find a statement to be evidence of age\\ndiscrimination in two situations. First, courts will find evidence of age\\ndiscrimination where a statement references age in a derogatory or\\nstereotypical way. See, e.g., Rachid, 376 F.3d at 315 (finding evidence of age\\ndiscrimination where the employer told the plaintiff “. . . you’re too old”).\\nSecond, courts will find evidence of age discrimination where the employer’s\\nstatement shows a desire to replace older employees with younger ones. See,\\ne.g., Palasota, 342 F.3d at 577–78 (finding sufficient evidence to sustain a jury\\nverdict where the employer stated that the plaintiff’s “sales techniques were\\nout of the ‘old school’ of selling”; commented that “there was a ‘graying of the\\nsales force’” and the employer needed “to find a way to get through it;” and\\nrecommended severance packages for fourteen named employees, all of whom\\nwere specifically identified as over fifty years of age, to create “the flexibility to\\nbring on some new players”). Neither situation is present here.\\n Commenting on McMichael’s eligibility for retirement does not reference\\nage in a derogatory or stereotypical way. Nor does it show a desire to replace\\nolder employees with younger ones. It also does not imply that McMichael’s\\n\\n\\n 11\\n\\f Case: 19-60011 Document: 00515074647 Page: 12 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\nage was the reason he was fired, especially in the context of a reduction in\\nforce. The case law supports this interpretation.\\n This court previously held that nearly the exact same statement did not\\ndirectly show discriminatory motive. Kilgore, 538 F. App’x at 476. In Kilgore,\\nthis court held that the plaintiff failed to show discriminatory motive even\\nthough his boss said that he was “eligible for retirement.” Id. (“We agree with\\nBrookeland and the district court that the superintendent’s alleged comment\\nthat Kilgore was “eligible for retirement” is not direct evidence from which a\\nreasonable jury could conclude that Brookeland terminated Kilgore because of\\nhis age.” (emphasis added)). Such a statement, the court held, “did not imply”\\nthat his eligibility “was the reason for discharge.” Id. (citing Tex. Instruments,\\n100 F.3d at 1181). It “simply recognized a fact concerning” the plaintiff’s\\neligibility. Id. This benign interpretation of the statement was also “consistent\\nwith the context in which it was allegedly made,” since “it was natural for the\\n[decisionmaker] to inform [the plaintiff] of the benefits to which he was entitled\\nupon his termination.” Id.\\n Like in Kilgore, the speaker merely informed McMichael of his eligibility\\nfor retirement benefits. The statement did not reflect any stereotypes about\\nage, evince a desire to replace older employees with younger ones, or suggest\\nthat McMichael was fired for his age. In the context of a reduction in force, it\\nwas natural for employees to discuss benefits available if they were\\nterminated. And McMichael has not produced any evidence suggesting an\\nalternative interpretation.\\n McMichael also failed to connect this statement to a person with\\ninfluence over the decision to fire him. While McMichael does not need to\\nconnect this statement to the “formal decision maker,” he must show that the\\nspeaker is “in a position to influence the decision.” Palasota, 342 F.3d at 578.\\nBut McMichael shows the exact opposite—he admits that Owen “was no longer\\n 12\\n\\f Case: 19-60011 Document: 00515074647 Page: 13 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\nthe [Offshore Installation Manager] on the [DCL] at the time” he was fired.\\nAnd no other evidence shows, or even suggests, that Owen had any influence\\nover the decision to terminate McMichael.\\nB. Hiring a Less Qualified Candidate\\n Another way that a plaintiff can show pretext is by pointing out that the\\nemployer replaced the plaintiff with a younger, “clearly less qualified”\\nemployee. Tex. Instruments, 100 F.3d at 1181; see also Walther v. Lone Star\\nGas Co., 952 F.2d 119, 123 (5th Cir. 1992) (“[A] plaintiff can take his case to a\\njury with evidence that he was clearly better qualified than younger employees\\nwho were retained.” (citing Thornbrough v. Columbus & Greenville R.R. Co.,\\n760 F.2d 633, 647 (5th Cir. 1985)). The “bar,” however, “is set high for this\\nkind of evidence.” Moss, 610 F.3d at 922–23 (citing Celestine v. Petroleos de\\nVenezuella SA, 266 F.3d 343, 357 (5th Cir. 2001)). A plaintiff cannot satisfy\\nhis burden by showing a large discrepancy in age. See Inmon v. Mueller Copper\\nTube Co., Inc., 757 F. App’x 376, 382 (5th Cir. 2019) (unpublished) (“In sum,\\nwe hold that a significant difference in age, standing alone, is insufficient\\nevidence of pretext . . . .”). Nor can the plaintiff satisfy his burden by showing\\nthat he is “merely better than or as qualified” as his replacement. Moss, 610\\nF.3d at 923 (quoting E.E.O.C. v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444\\n(5th Cir. 1995)). Instead, he must show that his replacement, if any, is clearly\\nless qualified.\\n To carry this heavy burden, a plaintiff must show that “the qualifications\\nare so widely disparate that no reasonable employer would have made the\\nsame decision.” Moss, 610 F.3d at 923 (citing Celestine, 266 F.3d at 357).\\nDifferently put, the plaintiff must submit “evidence from which a jury could\\nconclude that ‘no reasonable person, in the exercise of impartial judgment,\\ncould have chosen the candidate selected over the plaintiff for the job in\\n\\n\\n 13\\n\\f Case: 19-60011 Document: 00515074647 Page: 14 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\nquestion.’” Id. (citing Deines v. Tex. Dep’t of Protective & Regulatory Servs., 164\\nF.3d 277, 280–81 (5th Cir. 1999)).\\n Here, McMichael does not attempt to show that Eckert was clearly less\\nqualified. He doesn’t challenge the high-grade system score assigned to Eckert,\\nand he doesn’t directly challenge his high-grade score with facts showing that\\nhe was so qualified that Transocean should not have fired him. Notably,\\nMcMichael never addresses Eckert’s performance rating of 84%, which is\\nhigher than his own performance rating of 71%. Even if he did directly\\nchallenge his high-grade score, his own qualifications are less relevant in a\\nreduction-in-force case. See Tex. Instruments, 100 F.3d at 1181 (“In the context\\nof a reduction in force . . . the fact that an employee is qualified for his job is\\nless relevant—some employees may have to be let go despite competent\\nperformance.”).\\nC. Departing from Procedure\\n A plaintiff can also show pretext by showing a departure from standard\\nprocedure. But mere deviations from policy, or a disagreement about how to\\napply company policy, do not show pretext. See Campbell v. Zayo Grp., L.L.C.,\\n656 F. App’x 711, 715 (5th Cir. 2016) (per curiam) (unpublished) (holding that\\n“mere disagreement with [the employer’s] application of the [reduction-in-\\nforce] policy, without more, does not provide substantial evidence of pretext”).\\nThe ADEA does not “protect older employees from erroneous or even arbitrary\\npersonnel decisions, but only from decisions which are unlawfully motivated.”\\nMoss, 610 F.3d at 926 (quoting Bienkowski, 851 F.2d at 1507–08). Plaintiffs,\\ntherefore, must connect a departure from or misapplication of procedure to a\\ndiscriminatory motive—an employer’s “disregard of its own hiring system does\\nnot of itself conclusively establish that improper discrimination occurred or\\nthat a nondiscriminatory explanation for an action is pretextual.” Risher v.\\nAldridge, 889 F.2d 592, 597 (5th Cir. 1989).\\n 14\\n\\f Case: 19-60011 Document: 00515074647 Page: 15 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\n Here, McMichael also argues that Transocean inconsistently applied the\\nhigh-grading process to him. The main thrust of McMichael’s argument\\ncenters on a discrepancy in the evidence. On a chart showing all the\\ntoolpushers who were fired and retained, McMichael received a higher\\nperformance score than Eckert. Importantly, Eckert is younger and, according\\nto McMichael, less qualified than him. McMichael argues that these two facts\\nshow that Transocean did not fire him because of his performance review—\\nthey fired him because of his age.\\n Transocean argues that the chart does not reflect McMichael’s final high-\\ngrading score—it only reflects his score on the performance parameter.\\nEckert’s score, on the other hand, reflects all three parameters: performance,\\nranking, and potential. The chart, in other words, is incomplete because\\nTransocean made a simple scrivener’s error. This error is understandable,\\nthey argue, because they cold stacked six rigs in early 2015, forcing them to\\nrank and terminate a selection of 989 employees quickly.\\n McMichael’s argument is unconvincing. While a departure from\\nprocedure can show discriminatory motive, McMichael does not give any\\nreasons to doubt Transocean’s explanation for the discrepancy on the rating\\nchart, which makes the difference in the chart look like an accidental departure\\nfrom procedure. This court, however, does not find discriminatory motive\\nmerely because an employer misapplies a reduction-in-force policy. Campbell,\\n656 F. App’x at 715 (holding that “mere disagreement with [the employer’s]\\napplication of the [reduction-in-force] policy, without more, does not provide\\nsubstantial evidence of pretext”); Tex. Instruments, 100 F.3d at 1182 (finding\\nno pretext where employer departed from original “layoff policy” in favor of a\\nnew one); Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993) (rejecting\\na claim based only on “[p]roof that an employer did not follow correct or\\nstandard procedures in the termination or demotion of an employee”). Even if\\n 15\\n\\f Case: 19-60011 Document: 00515074647 Page: 16 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\na plaintiff can show that an employer consciously disregarded “its own hiring\\nsystem,” that showing, on its own, does not “conclusively establish that\\nimproper discrimination occurred or that a nondiscriminatory explanation for\\nan action is pretextual.” Risher, 889 F.2d at 597.\\nD. Additional Factors\\n Beyond these shortcomings, two other factors further undercut\\nMcMichael’s arguments. First, on numerous occasions, this court has held that\\ndiscrimination is less likely when the supervisor is in the same protected class\\nas the plaintiff. See Kelly v. Costco Wholesale Corp., 632 F. App’x 779, 783 (5th\\nCir. 2015) (“[The plaintiff’s] membership in the same protected class as [the\\nsupervisor] bolsters the inference that age discrimination was not the reason\\nfor his termination.”); Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir.\\n1996), abrogated on other grounds by Reeves, 530 U.S. at 134 (holding that,\\nsince the 58-year-old plaintiff was fired by his 60-year-old employer, there was\\nan inference that “age discrimination was not the motive”).\\n Two of the three people who rated and fired McMichael—Mosley and\\nKennedy—were both in the same protected class. Mosley was 57 years old,\\nand Kennedy was 51 years old. Their ages make discrimination less likely.\\n Second, Transocean fired numerous employees who were younger and\\nmore qualified than McMichael. This court has held before that age\\ndiscrimination is less likely when the employer retains other older employees\\nand fires younger ones. Kelly, 632 F. App’x at 783 (noting it was unlikely\\nplaintiff was discriminated against when “one meat-department employee who\\nwas only 36 years old was also dismissed, while another who was 47 years old\\nkept his job”); Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir.\\n1995) (reversing ADEA plaintiff’s jury verdict even though an older employee\\nwas retained while other employees under the age of 40 were terminated). In\\n\\n\\n 16\\n\\f Case: 19-60011 Document: 00515074647 Page: 17 Date Filed: 08/13/2019\\n\\n\\n\\n No. 19-60011\\nsuch situations, “[t]he logical inference is that age was not a factor.” Kelly, 632\\nF. App’x at 783.\\n Here, no evidence shows that age was a factor in any of Transocean’s\\nfiring decisions. Transocean fired numerous employees who were younger and\\nmore qualified than McMichael. For example, Transocean fired one employee\\nwho was 38 years old and had a high-grade score of 92%. And on the DCL,\\nTransocean retained only one toolpusher. While he was younger than\\nMcMichael at 49 years old, he scored well above McMichael’s 71% (or 59%)\\nwith a total high-grade score of 85%. Besides McMichael, the other two\\ntoolpushers fired from the DCL were both younger than the one retained\\ntoolpusher, but both received lower high-grade scores—one is 48 years old and\\nscored 72%, the other is 35 years old and scored 71%. This evidence suggests\\nthat Kennedy retained the most qualified employees.\\n A more fundamental problem is that all but one of the toolpushers on the\\nDCL, including Eckert, were terminated. And the one toolpusher they retained\\nwas clearly more qualified than McMichael, and he was not the youngest\\ntoolpusher on the rig. McMichael failed to meet the high burden of showing\\nthat Transocean chose to discriminate against him even though they were\\nfiring almost every toolpusher on the DCL anyways. The most reasonable\\nexplanation is the one Transocean gave: a massive reduction in force due to a\\ndownturn in the oil and gas industry.\\n III. CONCLUSION\\n For the foregoing reasons, we AFFIRM the district court’s grant of\\nsummary judgment.\\n\\n\\n\\n\\n 17\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3659,"cells":{"id":{"kind":"number","value":4647997,"string":"4,647,997"},"name":{"kind":"string","value":"In RE: DEEPWATER HORIZON Lake Eugenie Land & Development, Incorporated ; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. John M. Petitjean, Individually and on Behalf of a Putative Class; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. Economic and Property Damages Settlement Class, in the Matter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated 12cv970, Plaintiff, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. in Re: Deepwater Horizon Lake Eugenie Land & Development, Incorporated ; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. John M. Petitjean, Individually and on Behalf of a Putative Class; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Halliburton Company, Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. John M. Petitjean, Individually and on Behalf of a Putative Class; Et Al, Plaintiffs, v. Triton Asset Leasing GmbH ; Transocean Deepwater, Incorporated ; Transocean Holdings, L.L.C. ; Transocean Offshore Deepwater Drilling, Incorporated, Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. Economic and Property Damages Settlement Class, in the Matter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated 12cv970, Plaintiff, v. Halliburton Energy Services, Incorporated, Defendant - Appellee, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. in Re: Deepwater Horizon Dobby Darna; Darrin Covert; Richard Delacey; Joseph Williamson; George Zirlott, Plaintiffs - Appellants, v. Halliburton Energy Services, Incorporated; Halliburton Company; Transocean Holdings, L.L.C. ; Triton Asset Leasing Gmbh ; Transocean Deepwater, Incorporated ; Transocean Offshore Deepwater Drilling, Incorporated, Defendants - Appellees."},"name_abbreviation":{"kind":"string","value":"Deepwater Horizon Lake Eugenie Land v. Halliburton Energy Servs., Inc."},"decision_date":{"kind":"string","value":"2019-08-13"},"docket_number":{"kind":"string","value":"18-30243; CONSOLIDATED WITH 18-30413, CONSOLIDATED WITH 18-30533"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"King, Elrod, Engelhardt\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 18-30243 Document: 00515074428 Page: 1 Date Filed: 08/13/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-30243 FILED\\n August 13, 2019\\n Lyle W. Cayce\\nIN RE: DEEPWATER HORIZON Clerk\\n____________________\\n\\nLAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; ET AL,\\n\\n Plaintiffs,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\\nHOLDINGS, L.L.C.,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n____________________\\n\\nJOHN M. PETITJEAN, individually and on behalf of a putative class; ET AL,\\n\\n Plaintiffs,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\\nHOLDINGS, L.L.C.,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\f Case: 18-30243 Document: 00515074428 Page: 2 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n____________________\\n\\nECONOMIC and PROPERTY DAMAGES SETTLEMENT CLASS, in the\\nmatter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated\\n12cv970,\\n\\n Plaintiff,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\\nHOLDINGS, L.L.C.,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n\\n\\nCONSOLIDATED WITH 18-30413\\n\\nIN RE: DEEPWATER HORIZON\\n____________________________\\n\\nLAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; ET AL,\\n\\n Plaintiffs,\\n\\nv.\\n\\n\\n\\n\\n 2\\n\\f Case: 18-30243 Document: 00515074428 Page: 3 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\\nHOLDINGS, L.L.C.,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n____________________________\\n\\nJOHN M. PETITJEAN, individually and on behalf of a putative class; ET AL,\\n\\n Plaintiffs,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; HALLIBURTON\\nCOMPANY,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n\\n___________________________\\n\\nJOHN M. PETITJEAN, individually and on behalf of a putative class; ET AL,\\n\\n Plaintiffs,\\n\\nv.\\n\\n\\n\\n 3\\n\\f Case: 18-30243 Document: 00515074428 Page: 4 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nTRITON ASSET LEASING GmbH; TRANSOCEAN DEEPWATER,\\nINCORPORATED; TRANSOCEAN HOLDINGS, L.L.C.; TRANSOCEAN\\nOFFSHORE DEEPWATER DRILLING, INCORPORATED,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n_____________________________\\n\\nECONOMIC and PROPERTY DAMAGES SETTLEMENT CLASS, in the\\nmatter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated\\n12cv970,\\n\\n Plaintiff,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED,\\n\\n Defendant – Appellee,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n\\n\\nCONSOLIDATED WITH 18-30533\\n\\nIn re: Deepwater Horizon\\n\\n--------------------------\\n\\n 4\\n\\f Case: 18-30243 Document: 00515074428 Page: 5 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nDOBBY DARNA; DARRIN COVERT; RICHARD DELACEY; JOSEPH\\nWILLIAMSON; GEORGE ZIRLOTT,\\n\\n Plaintiffs – Appellants,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; HALLIBURTON\\nCOMPANY; TRANSOCEAN HOLDINGS, L.L.C.; TRITON ASSET LEASING\\nGMBH; TRANSOCEAN DEEPWATER, INCORPORATED; TRANSOCEAN\\nOFFSHORE DEEPWATER DRILLING, INCORPORATED,\\n\\n Defendants – Appellees.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Eastern District of Louisiana\\n Nos. 2:10-MD-2179, 2:12-CV-970, 2:15-CV-4143,\\n 2:15-CV-4146, and 2:15-CV-4654\\n\\n\\nBefore KING, ELROD, and ENGELHARDT, Circuit Judges.\\nPER CURIAM:\\n Following the Deepwater Horizon disaster, Halliburton Energy Services,\\nInc. and Transocean Holdings, L.L.C. each entered into a punitive damages\\nsettlement agreement with a class of claimants who alleged that they were\\nharmed by the oil spill. In these consolidated appeals, a group of menhaden\\nfishermen challenge the denial of their claims pursuant to those settlements.\\nBecause the magistrate judge properly affirmed the denial of the claims and\\nthe district court properly declined review, we AFFIRM.\\n\\n\\n\\n\\n 5\\n\\f Case: 18-30243 Document: 00515074428 Page: 6 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\n I.\\n Appellants are commercial menhaden fishermen (the Fishermen) who\\nallegedly suffered economic loss due to the Deepwater Horizon oil spill. The\\nFishermen did not file separate lawsuits against BP or any of the other entities\\ninvolved in the spill. However, they fell within the class definition in the class-\\naction portion of the B1 Master Complaint filed in the Deepwater Horizon\\nMDL. 1 The B1 Master Complaint sought compensatory and punitive damages\\non behalf of the B1 plaintiffs and class members.\\n The familiar Deepwater Horizon Economic and Property Damages\\nSettlement (E&P Settlement) eventually resolved the majority of the claims\\nasserted in the B1 Master Complaint. However, the terms of that agreement\\nspecifically excluded the Fishermen. Instead, the Fishermen entered into\\nsettlement agreements with the Appellees, Halliburton Energy Services, Inc.\\n(HESI) and Transocean Holdings, L.L.C. (Transocean). These class settlement\\nagreements (the HESI Settlements) created a fund to distribute among the\\nclaimants for punitive damages arising out of the oil spill, and the parties agree\\nthat the Fishermen fit within the class definition set out in the settlements. 2\\nThe HESI Settlements also include a provision limiting the claimants’ rights\\n\\n\\n\\n 1 As we explained in Graham, the district court divided the claims against BP,\\nTransocean, and the other entities into pleading bundles for ease of administration. In re\\nDeepwater Horizon (Graham), 922 F.3d 660, 664 (5th Cir. 2019). The B1 Master Complaint\\nasserted claims on behalf of plaintiffs in the B1 pleading bundle, which encompassed claims\\nfor “non-governmental economic loss and property damages.” The class-action portion of the\\ncomplaint defined the class as follows: “All individuals and entities residing or owning\\nproperty in the United States who claim economic losses, or damages to their occupations,\\nbusinesses, and/or property as a result of the April 20, 2010 explosions and fire aboard, and\\nsinking of, the Deepwater Horizon, and the resulting Spill.”\\n\\n 2The terms of the two HESI Settlements are substantially the same for purposes of\\nthis appeal, except where otherwise indicated.\\n\\n 6\\n\\f Case: 18-30243 Document: 00515074428 Page: 7 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nto appeal to this court. The HESI Settlements were entered into and filed with\\nthe district court on September 2, 2014 (HESI) and May 29, 2015\\n(Transocean). 3\\n While these settlements were awaiting district court approval, the\\ndistrict court issued Pretrial Order 60 (PTO 60) on March 29, 2016, which\\napplied to all claims in the B1 pleading bundle. Foreseeing “no further\\nadministrative or procedural benefit to maintaining” the B1 Master\\nComplaint, PTO 60 first dismissed that complaint. It then instructed\\n“[p]laintiffs [who] did not file an individual lawsuit, but instead filed a [short-\\nform joinder] and/or were part of a complaint with more than one plaintiff” to\\nfile an individual lawsuit with the district court by May 2, 2016. PTO 60\\nwarned that plaintiffs who failed to comply would “have their claims deemed\\ndismissed with prejudice without further notice.”\\n On April 12, 2016, the district court preliminarily approved the HESI\\nSettlements, and notice of their terms was given to class members, including\\nthe Fishermen. The April 12, 2016 order, inter alia, set deadlines for objecting\\nto (September 23, 2016) and opting out of (October 16, 2016) the proposed\\nsettlements and scheduled a fairness hearing to be held on October 20, 2016.\\nA few weeks later, on May 2, 2016, the deadline to comply with PTO 60 expired.\\nThe Fishermen did not file individual lawsuits, nor did they seek relief from\\nPTO 60 or additional time to comply. On June 7, 2016, the district court issued\\na show cause order to B1 plaintiffs who had failed to comply with PTO 60. The\\nFishermen did not respond to the order. Thereafter, on July 14, 2016, the\\ndistrict court found that “[a]ll remaining Plaintiffs in the B1 bundle . . . [were]\\ndeemed noncompliant with PTO 60” and dismissed their claims with prejudice.\\n\\n\\n 3 The HESI Settlement was amended on September 2, 2015.\\n 7\\n\\f Case: 18-30243 Document: 00515074428 Page: 8 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nOrder Re: Compliance with PTO 60 at 5, In re Oil Spill by the Oil Rig\\n“Deepwater Horizon” in the Gulf of Mex. on Apr. 20, 2010, No. 2:10-md-2179-\\nCJB-JCW (E.D. La. July 14, 2016), ECF No. 20996.\\n After the issuance of the June 7, 2016 show cause order but before the\\nJune 28, 2016 deadline to respond, the Claims Administrator for the HESI\\nSettlements filed a proposed Distribution Model on June 13, 2016 detailing\\nhow claims would be processed under the agreements. The Distribution Model\\nspecified that commercial fishermen, including menhaden fishermen, would be\\nrequired to provide “proof of [their] timely preservation of [their] rights to a\\nclaim for damages by compliance with [PTO 60].” Both the Distribution Model\\nand the attached Claim Form warned that claims would be assigned a value of\\n$0 if the claimant had failed to comply with PTO 60. Although other class\\nmembers filed objections to the Distribution Model on the ground that it\\nimproperly required claimants to comply with PTO 60, the Fishermen did not\\nobject. Nor did the Fishermen attend the “fairness hearing” that the district\\ncourt held in November 2016 to address objections to the Distribution Model.\\n On February 15, 2017, the district court gave its final approval of the\\nHESI Settlements and the Claims Administrator’s Distribution Model. In its\\napproval order, the district court declined to comment on the propriety of the\\nClaims Administrator’s interpretation of the HESI Settlements as requiring\\ncompliance with PTO 60. Instead, the district court observed that “[t]his\\nobjection [was] most properly considered in an appeal to [the district court]\\nafter claim determinations [were] concluded.” On February 14, 2018, a year\\nafter the district court issued the approval order, the Fishermen filed a Federal\\nRule of Civil Procedure 60(b) motion for relief from that order, arguing that the\\nDistribution Model was contrary to the terms of the HESI Settlements and\\n\\n\\n 8\\n\\f Case: 18-30243 Document: 00515074428 Page: 9 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nthat they had not received adequate notice of PTO 60 or its applicability to\\ntheir claims. The district court denied the motion.\\n The Fishermen submitted claims pursuant to the HESI Settlements, but\\nthe Claims Administrator denied them because the Fishermen had failed to\\ncomply with PTO 60. The Fishermen then appealed to the district court, which\\nhad referred “all appeals of claim determinations by the HESI/Transocean\\nsettlements claims administrator” to the magistrate judge pursuant to an\\nagreement between the parties. The magistrate judge affirmed the denial,\\nholding that requiring the Fishermen to comply with PTO 60 was consistent\\nwith the terms of the HESI Settlements and “the general maritime law precept\\nthat a claimant may obtain punitive damages only if that claimant has\\nunderlying compensatory damages.”\\n The Fishermen objected to the magistrate judge’s determination,\\ncomplaining that his reliance on PTO 60 was contrary to the terms of the HESI\\nSettlements and violated their due process rights. The district court overruled\\nthe objection on the ground that the claimants had waived their right to appeal\\nthe magistrate judge’s determination to any other court, including the Fifth\\nCircuit. The Fishermen then appealed to this court.\\n II.\\n As an initial matter, we address the Fishermen’s pending motion to take\\njudicial notice of the docket and complaint in Bruhmuller v. BP Exploration &\\nProduction Inc. Complaint, Bruhmuller v. BP Expl. & Prod. Inc., No. 2:13-CV-\\n97 (E.D. La. Jan. 18, 2013), ECF No. 1. We may take judicial notice of prior\\ncourt proceedings as matters of public record. ITT Rayonier Inc. v. United\\nStates, 651 F.2d 343, 345 n.2 (5th Cir. 1981) (“A court may . . . take judicial\\nnotice of its own records or of those of inferior courts.”). We GRANT the motion,\\nand we have considered these materials in our review of the case.\\n 9\\n\\f Case: 18-30243 Document: 00515074428 Page: 10 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\n III.\\n The Fishermen raise four issues on appeal: (1) whether this appeal is\\nbarred by the appeal waiver in the HESI Settlements; (2) whether the\\nmagistrate judge erred in affirming the denial of their claims; (3) whether the\\ndistrict court erred by declining to review the magistrate judge’s decision; and\\n(4) whether the district court erred in denying their Rule 60(b) motion.\\n A.\\n The appeal waiver in the HESI Settlement reads as follows:\\n [T]he Claims Administrator shall establish rules for\\n appealing the determinations of the Claims Administrator to the\\n [district] Court. The [district] Court’s decision on any such appeal\\n involving the amount of any payment to any individual claimant\\n (other than a determination that a claimant is not entitled to any\\n payment due to a failure to meet the class definition) shall be final\\n and binding, and there shall be no appeal to any other court\\n including the U.S. Court of Appeals for the Fifth Circuit.\\n\\nThe Transocean Settlement contains a similar provision, but it omits the\\nexception in parentheses.\\n The Fishermen argue that this appeal waiver does not foreclose our\\nreview because their appeal does not “involv[e] the amount of any payment to\\nany individual claimant” under the HESI Settlements—instead, the Claims\\nAdministrator determined that they were not eligible to recover at all.\\nAlternatively, they argue that their appeal fits within the parenthetical\\nexception for “a determination that a claimant is not entitled to any payment\\ndue to a failure to meet the class definition.” The Appellees respond that “the\\nClaims Administrator’s decision was that Appellants are entitled to receive $0,\\na clear determination as to ‘the amount of payment to any individual\\nclaimant.’”\\n\\n\\n 10\\n\\f Case: 18-30243 Document: 00515074428 Page: 11 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\n We have enforced appeal waivers in settlement agreements in prior\\nunpublished cases. See Hill v. Schilling, 495 F. App’x 480, 487–88 (5th Cir.\\n2012); Campbell Harrison & Dagley, L.L.P. v. Hill, 582 F. App’x 522, 523–24\\n(5th Cir. 2014). And in the context of the Deepwater Horizon settlements\\nspecifically, we have indicated that we would enforce an express waiver of the\\nright to appeal from the district court’s claim determinations. In re Deepwater\\nHorizon, 785 F.3d 986, 997 (5th Cir. 2015). But because we conclude that the\\nFishermen cannot prevail on the merits, we need not determine whether the\\nappeal waiver in the HESI Settlements bars their appeal. See United States\\nv. Story, 439 F.3d 226, 230 (5th Cir. 2006) (“[A]ppeal waivers . . . do not deprive\\nus of jurisdiction.”).\\n B.\\n We turn next to the issue of whether the magistrate judge erred in\\naffirming the denial of the Fishermen’s claims. We conclude that the\\nmagistrate judge’s decision was correct.\\n Under maritime law, a plaintiff’s recovery of punitive damages is tied to\\nhis or her underlying compensatory damages claim. See Exxon Shipping Co. v\\nBaker, 554 U.S. 471, 506–07 (2008). It is unsurprising, then, that the HESI\\nSettlements contemplated that claimants would need to “establish a claim for\\ncommercial fishing loss” to recover punitive damages. The Distribution Model\\nset out three methods by which claimants could establish a compensatory\\ndamages claim: (1) by filing a claim pursuant to the E&P Settlement; (2) by\\nfiling proof of a separate settlement with BP that did not release the claimant’s\\npunitive damages claims; or (3) by filing an individual lawsuit as required by\\nPTO 60. As we explained, the Fishermen were excluded from the E&P\\nSettlement, and they do not argue here that they entered into a separate\\ncompensatory damages settlement with BP. Consequently, to establish a\\n 11\\n\\f Case: 18-30243 Document: 00515074428 Page: 12 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\ncompensatory damages claim upon which to predicate their recovery of\\npunitive damages under the HESI Settlements, the Fishermen had to comply\\nwith PTO 60.\\n The Fishermen acknowledge that they received notice of this obligation\\nto comply with PTO 60 at the latest when the Claims Administrator filed the\\nDistribution Model in the district court on June 13, 2016. At that time,\\nalthough the deadline to comply with PTO 60 had passed, the district court’s\\nshow cause order was in effect, and the deadline to respond—June 28, 2016—\\nwas two weeks away. The Fishermen did not respond to the show cause order,\\nnor did they attempt at any point to file individual lawsuits or seek additional\\ntime to comply with PTO 60, although the district court had granted extensions\\nto other parties.\\n The circumstances of this case are quite similar to those in our recent\\ndecision in Barrera. In re Deepwater Horizon (Barrera), 907 F.3d 232 (5th Cir.\\n2018). There, although the plaintiff-fishermen received notice of PTO 60, they\\nfailed to comply, arguing that they were unable to file individual lawsuits\\nbecause they were working offshore. Id. at 234. The district court dismissed\\ntheir claims with prejudice, and we affirmed, observing that the plaintiffs had\\na “number of opportunities . . . to either comply with PTO 60 [or] explain why\\nthey could not do so.” Id. at 235–37. As in Barrera, the Fishermen here knew\\nof their obligation to comply with PTO 60 but still failed to file individual\\nlawsuits. And unlike in Barrera, the Fishermen did not attempt to comply\\nwith PTO 60 at any point throughout these proceedings. The magistrate judge\\ntherefore correctly affirmed the denial of their claims.\\n Despite the above, the Fishermen challenge the magistrate judge’s\\ndecision on several grounds: (1) requiring compliance with PTO 60 was\\ncontrary to the terms of the HESI Settlements; (2) PTO 60 did not apply to the\\n 12\\n\\f Case: 18-30243 Document: 00515074428 Page: 13 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nFishermen; and (3) requiring compliance with PTO 60 violated the Fishermen’s\\ndue process rights. Each of these arguments is unavailing.\\n 1.\\n The Fishermen first contend that requiring compliance with PTO 60 was\\ncontrary to the terms of the HESI Settlements, arguing that the settlements\\ndeem any claimant who fits within the class definition to have standing. Thus,\\nthey maintain that they did not need to make a separate showing of standing\\nby filing individual lawsuits to preserve their compensatory damages claims.\\nAccording to the Fishermen, this was a “contractual concession” by the\\nAppellees similar to BP’s contractual concession that proof of causation was\\nnot required under the E&P Settlement. See In re Deepwater Horizon (Bon\\nSecour Fisheries), 744 F.3d 370, 377 (5th Cir. 2014). The Fishermen also\\nemphasize that “the law is not settled in this circuit” as to whether they have\\nstanding, but the HESI Settlements nonetheless expressly include them in the\\nclass definition. They argue that the HESI Settlements would not have\\nincluded claimants whose standing is unclear in the class definition if a\\nseparate showing of standing was required—instead, a claimant is entitled to\\nrecover under the HESI Settlements merely by proving that he is a member of\\nthe class.\\n “The interpretation of a settlement agreement is a question of contract\\nlaw that this [c]ourt reviews de novo.” In re Deepwater Horizon, 785 F.3d 1003,\\n1011 (5th Cir. 2015). The primary provision of the HESI Settlements on which\\nthe Fishermen rely to deem standing is the class description found in Section\\n3: “It is the intent of the Parties to capture within the New Class definition all\\npotential claimants . . . who may have valid maritime law standing to make a\\nPunitive Damages Claim under general maritime law against [Appellees.]”\\nHowever, the class definition in Section 4 does not include any language\\n 13\\n\\f Case: 18-30243 Document: 00515074428 Page: 14 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nregarding standing. Nor does the quoted language from the class description\\nunequivocally deem standing for class members as the Fishermen contend.\\nInstead, the class description provision demonstrates that the parties\\nrecognized that the class definition encompasses claimants whose standing is\\nuncertain under existing law, without saying anything about whether a\\nseparate showing of maritime standing is required for recovery under the\\nsettlements. At best, this provision is silent as to whether class members must\\nseparately prove standing.\\n Helpfully, the class description in Section 3 is not the only provision in\\nthe HESI Settlements that sheds light on whether claimants were deemed to\\nhave standing such that compliance with PTO 60 was unnecessary. First, the\\nHESI Settlements contain the statement that “this [settlement agreement]\\nshall be interpreted in accord with general maritime law.” As we discussed\\nabove, maritime law links a plaintiff’s recovery of punitive damages to his or\\nher underlying compensatory damages claim. See Exxon Shipping Co., 554\\nU.S. at 506–07.\\n In addition, as we also noted above, the section of the HESI Settlements\\nproviding for the creation of the Distribution Model by the Claims\\nAdministrator, Section 8, contains the following provision: “The plan for\\ndistribution of payments to the New Class recommended by the Claims\\nAdministrator may, at his/her discretion, include . . . a standard to establish a\\nclaim for commercial fishing loss.” This expressly recognizes that claimants\\nmay be required to demonstrate that they have a claim for loss—in other\\nwords, a claim seeking compensatory damages—in order to proceed under the\\nHESI Settlements. By requiring compliance with PTO 60 as one possible way\\nto establish such a claim, the Claims Administrator was exercising the\\ndiscretion afforded him under this provision.\\n 14\\n\\f Case: 18-30243 Document: 00515074428 Page: 15 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\n Finally, in Section 19, the HESI Settlements contain a series of\\nprovisions stipulating that the parties will seek certain orders from the district\\ncourt to effectuate the settlements. One of those provisions requires the parties\\nto obtain an order that:\\n Adopt[s] the interpretation as to the scope of Robins Dry Dock in\\n the [district court’s] Order and Reasons [As to Motions to Dismiss\\n the B1 Master Complaint] . . . by finding that the New Class as\\n defined and described in sections 3 and 4 includes all potential\\n claimants who have standing to bring claims under general\\n maritime law as interpreted by Robins Dry Dock v. Flint, 275 U.S.\\n 203 (1927), State of Louisiana ex. Rel. Guste v. M/V Testbank, 752\\n F.2d 1019 (5th Cir. 1985), and their progeny[.]\\n\\nThus, the parties specifically bargained for an order by the district court\\nlimiting the class of claimants who could recover under the HESI Settlements\\nto “claimants who have standing to bring claims under general maritime law”\\nas interpreted by the two named cases and their progeny.\\n Robins Dry Dock stands for the proposition that a plaintiff who sustains\\nonly economic loss unaccompanied by personal injury or property damage\\ngenerally does not have standing to recover damages under maritime law. See\\nRobins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 309 (1927); Wiltz v. Bayer\\nCropScience, Ltd. P’ship, 645 F.3d 690, 695–96 (5th Cir. 2011). In M/V\\nTestbank, we noted that “[a] substantial argument can be made that\\ncommercial fishermen possess a proprietary interest in fish in waters they\\nnormally harvest sufficient to allow recovery for their loss.” State of La. ex rel.\\nGuste v. M/V Testbank, 752 F.2d 1019, 1027 n.10 (5th Cir. 1985). But we\\ndeclined to decide whether commercial fishermen were an exception to the\\nRobins Dry Dock rule. Id.\\n The district court order referenced in the provision—the order on the\\nmotions to dismiss the B1 complaint—interpreted these two cases, in\\n 15\\n\\f Case: 18-30243 Document: 00515074428 Page: 16 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nconjunction with the district court’s decision in M/V Testbank, as creating an\\nexception to Robins Dry Dock to allow commercial fishermen to sue for mere\\neconomic loss arising out of the Deepwater Horizon oil spill. Order and Reasons\\nGranting in Part, Denying in Part, Defendants’ Motions to Dismiss the B1\\nMaster Complaint at 19–20, In re Oil Spill by the Oil Rig “Deepwater Horizon”\\nin the Gulf of Mex. on Apr. 20, 2010, No. 2:10-md-2179-CJB-JCW (E.D. La.\\nAug. 26, 2011), ECF No. 3830. In light of this interpretation, we read the\\nabove-quoted provision to indicate that for the purposes of the HESI\\nSettlements, the Fishermen are not barred from recovery by Robins Dry Dock\\neven though we have not affirmatively established that they would have\\nstanding under that rule. However, this provision does not purport to\\neliminate standing issues unrelated to Robins Dry Dock, especially the\\nfundamental requirement that a plaintiff has suffered injury in fact. See Lujan\\nv. Defs. of Wildlife, 504 U.S. 555, 560 (1992).\\n Thus, this case is distinguishable from Bon Secour Fisheries in that the\\nsettlement at issue there—the familiar E&P Settlement—set out express\\ncausation requirements that departed from the proof of causation a claimant\\nwould have been required to provide under general tort law. 744 F.3d at 375–\\n77. Here, the HESI Settlements contemplate that the class encompasses only\\nclaimants “who have standing to bring claims under general maritime law”—\\nsuggesting that claimants must make the same showing of standing to recover\\nunder the settlements as they would under maritime law, subject to the district\\ncourt’s interpretation of Robins Dry Dock and M/V Testbank. Unlike in Bon\\nSecour Fisheries, the Appellees did not “contractually concede” standing under\\nthe HESI Settlements.\\n For the reasons described, we hold that requiring the Fishermen to\\nestablish underlying compensatory damages claims by complying with PTO\\n 16\\n\\f Case: 18-30243 Document: 00515074428 Page: 17 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\n60—in other words, requiring them to have standing to recover punitive\\ndamages under maritime law—was not contrary to the terms of the HESI\\nSettlements.\\n 2.\\n The Fishermen next argue that PTO 60 did not apply to them.\\nSpecifically, they contend that the district court’s conclusion that PTO 60\\napplied to unnamed class members in class action suits was incorrect because\\nPTO 60 only mentions “mass joinder” plaintiffs, and class actions are distinct\\nfrom mass joinder suits. Although the Fishermen acknowledge that we\\naffirmed the district court’s dismissal of class action claims under PTO 60 in\\nPerez, they “make a good-faith assertion that the Perez ruling was incorrect\\nand should be reconsidered.” See In re Deepwater Horizon (Perez), 713 F. App’x\\n360 (5th Cir. 2018).\\n We review the district court’s docket management decisions for an abuse\\nof discretion, affording “special deference” to a district court administering an\\nMDL. Barrera, 907 F.3d at 234–35. In Perez, the appellants, who had filed a\\nseries of class action suits in the BP MDL, challenged the district court’s\\ndecision that they were required to comply with PTO 60 and file single-plaintiff\\nlawsuits instead. 713 F. App’x at 362. Observing that PTO 60 applied to class\\nactions, we affirmed the district court’s dismissal of the appellants’ class action\\nclaims with prejudice. Id. The Supreme Court denied the appellants’ petition\\nfor a writ of certiorari. Perez v. B.P., P.L.C., No. 18-59, 139 S. Ct. 231 (Oct. 1,\\n2018). We see no reason to revisit Perez here: The district court did not err in\\napplying PTO 60 to unnamed class members.\\n 3.\\n The Fishermen’s third basis for challenging the magistrate judge’s\\ndecision is that requiring them to comply with PTO 60 violated their due\\n 17\\n\\f Case: 18-30243 Document: 00515074428 Page: 18 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nprocess rights. Their core argument in this regard is that they “did not have\\nconstitutionally adequate notice that they had to comply [with PTO 60] in\\norder to receive compensation under the [HESI Settlements].” Whether a\\nclaimant’s due process rights were violated is a question of law that this court\\nreviews de novo. See Simi Inv. Co. v. Harris Cty., 236 F.3d 240, 249 (5th Cir.\\n2000).\\n On this issue, the Fishermen first point to the district court’s decision to\\nexcuse noncompliance with PTO 60 for certain claimants due to a “notice gap.”\\nThey also contend that the terms of PTO 60, the terms of the HESI\\nSettlements, and the notices of those settlements sent to class members did\\nnot adequately inform them that compliance with PTO 60 was a prerequisite\\nto recovery under the settlements. Finally, while the Fishermen acknowledge\\nthat the Distribution Model put them on notice of the requirement to file\\nindividual lawsuits, they emphasize that the Distribution Model was not filed\\nuntil after the deadline to comply with PTO 60 had expired.\\n The Fishermen’s “notice gap” argument analogizes their situation to that\\nof Zat’s Restaurant, a claimant that the district court excused from compliance\\nwith PTO 60 because it had not received notice of that order. As addressed\\nabove, we reject this argument because, unlike Zat’s, the Fishermen did not\\nattempt to comply with PTO 60 once they did receive notice of it. In fact, we\\nobserve that the Fishermen had numerous opportunities to comply with, object\\nto, or otherwise challenge the PTO 60 compliance requirement before their\\nclaims were denied by the Claims Administrator, but they failed to do so. First,\\nthe Fishermen had an opportunity to respond to the district court’s show cause\\norder with respect to PTO 60 after they unequivocally received notice via the\\nDistribution Model that failure to comply with PTO 60 would bar their claims\\nunder the HESI Settlements. Second, the Fishermen had an opportunity to\\n 18\\n\\f Case: 18-30243 Document: 00515074428 Page: 19 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nobject to the Distribution Model itself based on the PTO 60 compliance\\nrequirement. Third, the Fishermen had an opportunity to participate in a\\nfairness hearing before the district court to challenge the Distribution Model\\nbased on the PTO 60 compliance requirement. Fourth, the Fishermen had an\\nopportunity to appeal the district court’s order approving the HESI\\nSettlements and Distribution Model based on the PTO 60 compliance\\nrequirement.\\n Given the above, we cannot conclude that the Fishermen did not receive\\nadequate notice or an opportunity to be heard on the PTO 60 compliance issue.\\nSee Barrera, 907 F.3d at 236 (affirming dismissal of plaintiffs’ claims for failure\\nto comply with PTO 60 “[g]iven the number of opportunities the district court\\ngave Plaintiffs to either comply with PTO 60 [or] explain why they could not\\ndo so”). Requiring compliance with PTO 60 to recover under the HESI\\nSettlements did not violate the Fishermen’s due process rights.\\n None of the Fishermen’s arguments convince us that the magistrate\\njudge’s decision to affirm the denial of their claims was incorrect. We therefore\\nhold that the magistrate judge did not err in applying PTO 60 to the\\nFishermen’s claims under the HESI Settlements.\\n C.\\n The Fishermen also complain that the district court erred in declining to\\nreview their objections to the magistrate judge’s decision. First, they note that\\nthe district court’s order referring matters to the magistrate judge (the Referral\\nOrder) only delegated “questions regarding the amount of payments.” This is\\nnot correct. The Referral Order, which the parties agreed to, referred “all\\nappeals of claim determinations by the HESI/Transocean settlements claims\\nadministrator” to the magistrate judge. Thus, the Fishermen’s appeal from\\n\\n\\n 19\\n\\f Case: 18-30243 Document: 00515074428 Page: 20 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nthe denial of their claims was within the scope of the Referral Order and was\\nproperly reviewed by the magistrate judge.\\n Second, the Fishermen point to the district court’s statement in its order\\napproving the HESI Settlements that objections to the PTO 60 compliance\\nrequirement were “most properly considered in an appeal to [the district court]\\nafter claim determinations [were] concluded.” In the Fishermen’s view, this\\nstatement reserved the PTO 60 compliance issue for the district court’s review,\\nso it should not have been delegated to the magistrate judge. However, the\\nFishermen cite no authority for the proposition that this determination was\\nnot delegable to the magistrate judge. On the contrary, that is precisely what\\nthe parties agreed to in the Referral Order, which the district court issued after\\nthe approval order in which it expressed that it would consider the PTO 60\\ncompliance issue at a later time. Thus, as the magistrate judge recognized, his\\ndecision in this case was the promised consideration of the PTO 60 compliance\\nissue at a later stage of the proceedings. That the Fishermen disagree with\\nthe magistrate judge’s decision on that issue does not permit them to\\ncircumvent the Referral Order that they bargained for.\\n D.\\n Finally, the Fishermen contend that the district court erred in denying\\ntheir Rule 60(b) motion, which they filed a year after the district court issued\\nthe order approving the Distribution Model. This court reviews a district\\ncourt’s denial of a Rule 60(b) motion for an abuse of discretion. Lowry Dev.,\\nL.L.C. v. Groves & Assocs. Ins., Inc., 690 F.3d 382, 385 (5th Cir. 2012). As the\\nFishermen explain, their Rule 60(b) motion raised the same arguments that\\nthey raised in their appeal of the magistrate judge’s decision affirming the\\ndenial of their claims. Because we conclude that the magistrate judge’s\\n\\n\\n 20\\n\\f Case: 18-30243 Document: 00515074428 Page: 21 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\ndecision was correct, we hold that the district court did not err in denying the\\nFishermen’s Rule 60(b) motion for the same reasons.\\n IV.\\n We recognize that, in the unique facts of this case, our holding leads to\\nan unfortunate result for the Fishermen, who were unnamed, unrepresented\\nclass members for much of these proceedings—the record is not clear as to\\nwhen they became represented. As a result, as even the Appellees recognized\\nat oral argument, affirming the denial of the Fishermen’s claims may appear\\nunduly harsh. However, we are bound by our precedent, by the plain language\\nof the HESI Settlements, and by the deferential standard of review applicable\\nto several of the issues in this case. Under those standards, the magistrate\\njudge correctly affirmed the denial of the Fishermen’s claims, the district court\\ndid not err in declining to review the magistrate judge’s decision, and the\\ndistrict court did not err in denying the Fishermen’s Rule 60(b) motion. We\\nmust therefore AFFIRM the district court’s judgment.\\n\\n\\n\\n\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4425250/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"KING"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4647997/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In RE: DEEPWATER HORIZON Lake Eugenie Land & Development, Incorporated ; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. John M. Petitjean, Individually and on Behalf of a Putative Class; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. Economic and Property Damages Settlement Class, in the Matter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated 12cv970, Plaintiff, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. in Re: Deepwater Horizon Lake Eugenie Land & Development, Incorporated ; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. John M. Petitjean, Individually and on Behalf of a Putative Class; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Halliburton Company, Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. John M. Petitjean, Individually and on Behalf of a Putative Class; Et Al, Plaintiffs, v. Triton Asset Leasing GmbH ; Transocean Deepwater, Incorporated ; Transocean Holdings, L.L.C. ; Transocean Offshore Deepwater Drilling, Incorporated, Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. Economic and Property Damages Settlement Class, in the Matter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated 12cv970, Plaintiff, v. Halliburton Energy Services, Incorporated, Defendant - Appellee, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. in Re: Deepwater Horizon Dobby Darna; Darrin Covert; Richard Delacey; Joseph Williamson; George Zirlott, Plaintiffs - Appellants, v. Halliburton Energy Services, Incorporated; Halliburton Company; Transocean Holdings, L.L.C. ; Triton Asset Leasing Gmbh ; Transocean Deepwater, Incorporated ; Transocean Offshore Deepwater Drilling, Incorporated, Defendants - Appellees.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-30243 Document: 00515074428 Page: 1 Date Filed: 08/13/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 18-30243 FILED\n August 13, 2019\n Lyle W. Cayce\nIN RE: DEEPWATER HORIZON Clerk\n____________________\n\nLAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; ET AL,\n\n Plaintiffs,\n\nv.\n\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\nHOLDINGS, L.L.C.,\n\n Defendants – Appellees,\n\nv.\n\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\n\n Movants – Appellants.\n____________________\n\nJOHN M. PETITJEAN, individually and on behalf of a putative class; ET AL,\n\n Plaintiffs,\n\nv.\n\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\nHOLDINGS, L.L.C.,\n\n Defendants – Appellees,\n\nv.\n\f Case: 18-30243 Document: 00515074428 Page: 2 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\n\n Movants – Appellants.\n____________________\n\nECONOMIC and PROPERTY DAMAGES SETTLEMENT CLASS, in the\nmatter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated\n12cv970,\n\n Plaintiff,\n\nv.\n\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\nHOLDINGS, L.L.C.,\n\n Defendants – Appellees,\n\nv.\n\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\n\n Movants – Appellants.\n\n\nCONSOLIDATED WITH 18-30413\n\nIN RE: DEEPWATER HORIZON\n____________________________\n\nLAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; ET AL,\n\n Plaintiffs,\n\nv.\n\n\n\n\n 2\n\f Case: 18-30243 Document: 00515074428 Page: 3 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\nHOLDINGS, L.L.C.,\n\n Defendants – Appellees,\n\nv.\n\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\n\n Movants – Appellants.\n____________________________\n\nJOHN M. PETITJEAN, individually and on behalf of a putative class; ET AL,\n\n Plaintiffs,\n\nv.\n\nHALLIBURTON ENERGY SERVICES, INCORPORATED; HALLIBURTON\nCOMPANY,\n\n Defendants – Appellees,\n\nv.\n\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\n\n Movants – Appellants.\n\n___________________________\n\nJOHN M. PETITJEAN, individually and on behalf of a putative class; ET AL,\n\n Plaintiffs,\n\nv.\n\n\n\n 3\n\f Case: 18-30243 Document: 00515074428 Page: 4 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nTRITON ASSET LEASING GmbH; TRANSOCEAN DEEPWATER,\nINCORPORATED; TRANSOCEAN HOLDINGS, L.L.C.; TRANSOCEAN\nOFFSHORE DEEPWATER DRILLING, INCORPORATED,\n\n Defendants – Appellees,\n\nv.\n\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\n\n Movants – Appellants.\n_____________________________\n\nECONOMIC and PROPERTY DAMAGES SETTLEMENT CLASS, in the\nmatter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated\n12cv970,\n\n Plaintiff,\n\nv.\n\nHALLIBURTON ENERGY SERVICES, INCORPORATED,\n\n Defendant – Appellee,\n\nv.\n\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\n\n Movants – Appellants.\n\n\nCONSOLIDATED WITH 18-30533\n\nIn re: Deepwater Horizon\n\n--------------------------\n\n 4\n\f Case: 18-30243 Document: 00515074428 Page: 5 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nDOBBY DARNA; DARRIN COVERT; RICHARD DELACEY; JOSEPH\nWILLIAMSON; GEORGE ZIRLOTT,\n\n Plaintiffs – Appellants,\n\nv.\n\nHALLIBURTON ENERGY SERVICES, INCORPORATED; HALLIBURTON\nCOMPANY; TRANSOCEAN HOLDINGS, L.L.C.; TRITON ASSET LEASING\nGMBH; TRANSOCEAN DEEPWATER, INCORPORATED; TRANSOCEAN\nOFFSHORE DEEPWATER DRILLING, INCORPORATED,\n\n Defendants – Appellees.\n\n\n\n\n Appeals from the United States District Court\n for the Eastern District of Louisiana\n Nos. 2:10-MD-2179, 2:12-CV-970, 2:15-CV-4143,\n 2:15-CV-4146, and 2:15-CV-4654\n\n\nBefore KING, ELROD, and ENGELHARDT, Circuit Judges.\nPER CURIAM:\n Following the Deepwater Horizon disaster, Halliburton Energy Services,\nInc. and Transocean Holdings, L.L.C. each entered into a punitive damages\nsettlement agreement with a class of claimants who alleged that they were\nharmed by the oil spill. In these consolidated appeals, a group of menhaden\nfishermen challenge the denial of their claims pursuant to those settlements.\nBecause the magistrate judge properly affirmed the denial of the claims and\nthe district court properly declined review, we AFFIRM.\n\n\n\n\n 5\n\f Case: 18-30243 Document: 00515074428 Page: 6 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\n I.\n Appellants are commercial menhaden fishermen (the Fishermen) who\nallegedly suffered economic loss due to the Deepwater Horizon oil spill. The\nFishermen did not file separate lawsuits against BP or any of the other entities\ninvolved in the spill. However, they fell within the class definition in the class-\naction portion of the B1 Master Complaint filed in the Deepwater Horizon\nMDL. 1 The B1 Master Complaint sought compensatory and punitive damages\non behalf of the B1 plaintiffs and class members.\n The familiar Deepwater Horizon Economic and Property Damages\nSettlement (E&P Settlement) eventually resolved the majority of the claims\nasserted in the B1 Master Complaint. However, the terms of that agreement\nspecifically excluded the Fishermen. Instead, the Fishermen entered into\nsettlement agreements with the Appellees, Halliburton Energy Services, Inc.\n(HESI) and Transocean Holdings, L.L.C. (Transocean). These class settlement\nagreements (the HESI Settlements) created a fund to distribute among the\nclaimants for punitive damages arising out of the oil spill, and the parties agree\nthat the Fishermen fit within the class definition set out in the settlements. 2\nThe HESI Settlements also include a provision limiting the claimants’ rights\n\n\n\n 1 As we explained in Graham, the district court divided the claims against BP,\nTransocean, and the other entities into pleading bundles for ease of administration. In re\nDeepwater Horizon (Graham), 922 F.3d 660, 664 (5th Cir. 2019). The B1 Master Complaint\nasserted claims on behalf of plaintiffs in the B1 pleading bundle, which encompassed claims\nfor “non-governmental economic loss and property damages.” The class-action portion of the\ncomplaint defined the class as follows: “All individuals and entities residing or owning\nproperty in the United States who claim economic losses, or damages to their occupations,\nbusinesses, and/or property as a result of the April 20, 2010 explosions and fire aboard, and\nsinking of, the Deepwater Horizon, and the resulting Spill.”\n\n 2The terms of the two HESI Settlements are substantially the same for purposes of\nthis appeal, except where otherwise indicated.\n\n 6\n\f Case: 18-30243 Document: 00515074428 Page: 7 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nto appeal to this court. The HESI Settlements were entered into and filed with\nthe district court on September 2, 2014 (HESI) and May 29, 2015\n(Transocean). 3\n While these settlements were awaiting district court approval, the\ndistrict court issued Pretrial Order 60 (PTO 60) on March 29, 2016, which\napplied to all claims in the B1 pleading bundle. Foreseeing “no further\nadministrative or procedural benefit to maintaining” the B1 Master\nComplaint, PTO 60 first dismissed that complaint. It then instructed\n“[p]laintiffs [who] did not file an individual lawsuit, but instead filed a [short-\nform joinder] and/or were part of a complaint with more than one plaintiff” to\nfile an individual lawsuit with the district court by May 2, 2016. PTO 60\nwarned that plaintiffs who failed to comply would “have their claims deemed\ndismissed with prejudice without further notice.”\n On April 12, 2016, the district court preliminarily approved the HESI\nSettlements, and notice of their terms was given to class members, including\nthe Fishermen. The April 12, 2016 order, inter alia, set deadlines for objecting\nto (September 23, 2016) and opting out of (October 16, 2016) the proposed\nsettlements and scheduled a fairness hearing to be held on October 20, 2016.\nA few weeks later, on May 2, 2016, the deadline to comply with PTO 60 expired.\nThe Fishermen did not file individual lawsuits, nor did they seek relief from\nPTO 60 or additional time to comply. On June 7, 2016, the district court issued\na show cause order to B1 plaintiffs who had failed to comply with PTO 60. The\nFishermen did not respond to the order. Thereafter, on July 14, 2016, the\ndistrict court found that “[a]ll remaining Plaintiffs in the B1 bundle . . . [were]\ndeemed noncompliant with PTO 60” and dismissed their claims with prejudice.\n\n\n 3 The HESI Settlement was amended on September 2, 2015.\n 7\n\f Case: 18-30243 Document: 00515074428 Page: 8 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nOrder Re: Compliance with PTO 60 at 5, In re Oil Spill by the Oil Rig\n“Deepwater Horizon” in the Gulf of Mex. on Apr. 20, 2010, No. 2:10-md-2179-\nCJB-JCW (E.D. La. July 14, 2016), ECF No. 20996.\n After the issuance of the June 7, 2016 show cause order but before the\nJune 28, 2016 deadline to respond, the Claims Administrator for the HESI\nSettlements filed a proposed Distribution Model on June 13, 2016 detailing\nhow claims would be processed under the agreements. The Distribution Model\nspecified that commercial fishermen, including menhaden fishermen, would be\nrequired to provide “proof of [their] timely preservation of [their] rights to a\nclaim for damages by compliance with [PTO 60].” Both the Distribution Model\nand the attached Claim Form warned that claims would be assigned a value of\n$0 if the claimant had failed to comply with PTO 60. Although other class\nmembers filed objections to the Distribution Model on the ground that it\nimproperly required claimants to comply with PTO 60, the Fishermen did not\nobject. Nor did the Fishermen attend the “fairness hearing” that the district\ncourt held in November 2016 to address objections to the Distribution Model.\n On February 15, 2017, the district court gave its final approval of the\nHESI Settlements and the Claims Administrator’s Distribution Model. In its\napproval order, the district court declined to comment on the propriety of the\nClaims Administrator’s interpretation of the HESI Settlements as requiring\ncompliance with PTO 60. Instead, the district court observed that “[t]his\nobjection [was] most properly considered in an appeal to [the district court]\nafter claim determinations [were] concluded.” On February 14, 2018, a year\nafter the district court issued the approval order, the Fishermen filed a Federal\nRule of Civil Procedure 60(b) motion for relief from that order, arguing that the\nDistribution Model was contrary to the terms of the HESI Settlements and\n\n\n 8\n\f Case: 18-30243 Document: 00515074428 Page: 9 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nthat they had not received adequate notice of PTO 60 or its applicability to\ntheir claims. The district court denied the motion.\n The Fishermen submitted claims pursuant to the HESI Settlements, but\nthe Claims Administrator denied them because the Fishermen had failed to\ncomply with PTO 60. The Fishermen then appealed to the district court, which\nhad referred “all appeals of claim determinations by the HESI/Transocean\nsettlements claims administrator” to the magistrate judge pursuant to an\nagreement between the parties. The magistrate judge affirmed the denial,\nholding that requiring the Fishermen to comply with PTO 60 was consistent\nwith the terms of the HESI Settlements and “the general maritime law precept\nthat a claimant may obtain punitive damages only if that claimant has\nunderlying compensatory damages.”\n The Fishermen objected to the magistrate judge’s determination,\ncomplaining that his reliance on PTO 60 was contrary to the terms of the HESI\nSettlements and violated their due process rights. The district court overruled\nthe objection on the ground that the claimants had waived their right to appeal\nthe magistrate judge’s determination to any other court, including the Fifth\nCircuit. The Fishermen then appealed to this court.\n II.\n As an initial matter, we address the Fishermen’s pending motion to take\njudicial notice of the docket and complaint in Bruhmuller v. BP Exploration &\nProduction Inc. Complaint, Bruhmuller v. BP Expl. & Prod. Inc., No. 2:13-CV-\n97 (E.D. La. Jan. 18, 2013), ECF No. 1. We may take judicial notice of prior\ncourt proceedings as matters of public record. ITT Rayonier Inc. v. United\nStates, 651 F.2d 343, 345 n.2 (5th Cir. 1981) (“A court may . . . take judicial\nnotice of its own records or of those of inferior courts.”). We GRANT the motion,\nand we have considered these materials in our review of the case.\n 9\n\f Case: 18-30243 Document: 00515074428 Page: 10 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\n III.\n The Fishermen raise four issues on appeal: (1) whether this appeal is\nbarred by the appeal waiver in the HESI Settlements; (2) whether the\nmagistrate judge erred in affirming the denial of their claims; (3) whether the\ndistrict court erred by declining to review the magistrate judge’s decision; and\n(4) whether the district court erred in denying their Rule 60(b) motion.\n A.\n The appeal waiver in the HESI Settlement reads as follows:\n [T]he Claims Administrator shall establish rules for\n appealing the determinations of the Claims Administrator to the\n [district] Court. The [district] Court’s decision on any such appeal\n involving the amount of any payment to any individual claimant\n (other than a determination that a claimant is not entitled to any\n payment due to a failure to meet the class definition) shall be final\n and binding, and there shall be no appeal to any other court\n including the U.S. Court of Appeals for the Fifth Circuit.\n\nThe Transocean Settlement contains a similar provision, but it omits the\nexception in parentheses.\n The Fishermen argue that this appeal waiver does not foreclose our\nreview because their appeal does not “involv[e] the amount of any payment to\nany individual claimant” under the HESI Settlements—instead, the Claims\nAdministrator determined that they were not eligible to recover at all.\nAlternatively, they argue that their appeal fits within the parenthetical\nexception for “a determination that a claimant is not entitled to any payment\ndue to a failure to meet the class definition.” The Appellees respond that “the\nClaims Administrator’s decision was that Appellants are entitled to receive $0,\na clear determination as to ‘the amount of payment to any individual\nclaimant.’”\n\n\n 10\n\f Case: 18-30243 Document: 00515074428 Page: 11 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\n We have enforced appeal waivers in settlement agreements in prior\nunpublished cases. See Hill v. Schilling, 495 F. App’x 480, 487–88 (5th Cir.\n2012); Campbell Harrison & Dagley, L.L.P. v. Hill, 582 F. App’x 522, 523–24\n(5th Cir. 2014). And in the context of the Deepwater Horizon settlements\nspecifically, we have indicated that we would enforce an express waiver of the\nright to appeal from the district court’s claim determinations. In re Deepwater\nHorizon, 785 F.3d 986, 997 (5th Cir. 2015). But because we conclude that the\nFishermen cannot prevail on the merits, we need not determine whether the\nappeal waiver in the HESI Settlements bars their appeal. See United States\nv. Story, 439 F.3d 226, 230 (5th Cir. 2006) (“[A]ppeal waivers . . . do not deprive\nus of jurisdiction.”).\n B.\n We turn next to the issue of whether the magistrate judge erred in\naffirming the denial of the Fishermen’s claims. We conclude that the\nmagistrate judge’s decision was correct.\n Under maritime law, a plaintiff’s recovery of punitive damages is tied to\nhis or her underlying compensatory damages claim. See Exxon Shipping Co. v\nBaker, 554 U.S. 471, 506–07 (2008). It is unsurprising, then, that the HESI\nSettlements contemplated that claimants would need to “establish a claim for\ncommercial fishing loss” to recover punitive damages. The Distribution Model\nset out three methods by which claimants could establish a compensatory\ndamages claim: (1) by filing a claim pursuant to the E&P Settlement; (2) by\nfiling proof of a separate settlement with BP that did not release the claimant’s\npunitive damages claims; or (3) by filing an individual lawsuit as required by\nPTO 60. As we explained, the Fishermen were excluded from the E&P\nSettlement, and they do not argue here that they entered into a separate\ncompensatory damages settlement with BP. Consequently, to establish a\n 11\n\f Case: 18-30243 Document: 00515074428 Page: 12 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\ncompensatory damages claim upon which to predicate their recovery of\npunitive damages under the HESI Settlements, the Fishermen had to comply\nwith PTO 60.\n The Fishermen acknowledge that they received notice of this obligation\nto comply with PTO 60 at the latest when the Claims Administrator filed the\nDistribution Model in the district court on June 13, 2016. At that time,\nalthough the deadline to comply with PTO 60 had passed, the district court’s\nshow cause order was in effect, and the deadline to respond—June 28, 2016—\nwas two weeks away. The Fishermen did not respond to the show cause order,\nnor did they attempt at any point to file individual lawsuits or seek additional\ntime to comply with PTO 60, although the district court had granted extensions\nto other parties.\n The circumstances of this case are quite similar to those in our recent\ndecision in Barrera. In re Deepwater Horizon (Barrera), 907 F.3d 232 (5th Cir.\n2018). There, although the plaintiff-fishermen received notice of PTO 60, they\nfailed to comply, arguing that they were unable to file individual lawsuits\nbecause they were working offshore. Id. at 234. The district court dismissed\ntheir claims with prejudice, and we affirmed, observing that the plaintiffs had\na “number of opportunities . . . to either comply with PTO 60 [or] explain why\nthey could not do so.” Id. at 235–37. As in Barrera, the Fishermen here knew\nof their obligation to comply with PTO 60 but still failed to file individual\nlawsuits. And unlike in Barrera, the Fishermen did not attempt to comply\nwith PTO 60 at any point throughout these proceedings. The magistrate judge\ntherefore correctly affirmed the denial of their claims.\n Despite the above, the Fishermen challenge the magistrate judge’s\ndecision on several grounds: (1) requiring compliance with PTO 60 was\ncontrary to the terms of the HESI Settlements; (2) PTO 60 did not apply to the\n 12\n\f Case: 18-30243 Document: 00515074428 Page: 13 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nFishermen; and (3) requiring compliance with PTO 60 violated the Fishermen’s\ndue process rights. Each of these arguments is unavailing.\n 1.\n The Fishermen first contend that requiring compliance with PTO 60 was\ncontrary to the terms of the HESI Settlements, arguing that the settlements\ndeem any claimant who fits within the class definition to have standing. Thus,\nthey maintain that they did not need to make a separate showing of standing\nby filing individual lawsuits to preserve their compensatory damages claims.\nAccording to the Fishermen, this was a “contractual concession” by the\nAppellees similar to BP’s contractual concession that proof of causation was\nnot required under the E&P Settlement. See In re Deepwater Horizon (Bon\nSecour Fisheries), 744 F.3d 370, 377 (5th Cir. 2014). The Fishermen also\nemphasize that “the law is not settled in this circuit” as to whether they have\nstanding, but the HESI Settlements nonetheless expressly include them in the\nclass definition. They argue that the HESI Settlements would not have\nincluded claimants whose standing is unclear in the class definition if a\nseparate showing of standing was required—instead, a claimant is entitled to\nrecover under the HESI Settlements merely by proving that he is a member of\nthe class.\n “The interpretation of a settlement agreement is a question of contract\nlaw that this [c]ourt reviews de novo.” In re Deepwater Horizon, 785 F.3d 1003,\n1011 (5th Cir. 2015). The primary provision of the HESI Settlements on which\nthe Fishermen rely to deem standing is the class description found in Section\n3: “It is the intent of the Parties to capture within the New Class definition all\npotential claimants . . . who may have valid maritime law standing to make a\nPunitive Damages Claim under general maritime law against [Appellees.]”\nHowever, the class definition in Section 4 does not include any language\n 13\n\f Case: 18-30243 Document: 00515074428 Page: 14 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nregarding standing. Nor does the quoted language from the class description\nunequivocally deem standing for class members as the Fishermen contend.\nInstead, the class description provision demonstrates that the parties\nrecognized that the class definition encompasses claimants whose standing is\nuncertain under existing law, without saying anything about whether a\nseparate showing of maritime standing is required for recovery under the\nsettlements. At best, this provision is silent as to whether class members must\nseparately prove standing.\n Helpfully, the class description in Section 3 is not the only provision in\nthe HESI Settlements that sheds light on whether claimants were deemed to\nhave standing such that compliance with PTO 60 was unnecessary. First, the\nHESI Settlements contain the statement that “this [settlement agreement]\nshall be interpreted in accord with general maritime law.” As we discussed\nabove, maritime law links a plaintiff’s recovery of punitive damages to his or\nher underlying compensatory damages claim. See Exxon Shipping Co., 554\nU.S. at 506–07.\n In addition, as we also noted above, the section of the HESI Settlements\nproviding for the creation of the Distribution Model by the Claims\nAdministrator, Section 8, contains the following provision: “The plan for\ndistribution of payments to the New Class recommended by the Claims\nAdministrator may, at his/her discretion, include . . . a standard to establish a\nclaim for commercial fishing loss.” This expressly recognizes that claimants\nmay be required to demonstrate that they have a claim for loss—in other\nwords, a claim seeking compensatory damages—in order to proceed under the\nHESI Settlements. By requiring compliance with PTO 60 as one possible way\nto establish such a claim, the Claims Administrator was exercising the\ndiscretion afforded him under this provision.\n 14\n\f Case: 18-30243 Document: 00515074428 Page: 15 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\n Finally, in Section 19, the HESI Settlements contain a series of\nprovisions stipulating that the parties will seek certain orders from the district\ncourt to effectuate the settlements. One of those provisions requires the parties\nto obtain an order that:\n Adopt[s] the interpretation as to the scope of Robins Dry Dock in\n the [district court’s] Order and Reasons [As to Motions to Dismiss\n the B1 Master Complaint] . . . by finding that the New Class as\n defined and described in sections 3 and 4 includes all potential\n claimants who have standing to bring claims under general\n maritime law as interpreted by Robins Dry Dock v. Flint, 275 U.S.\n 203 (1927), State of Louisiana ex. Rel. Guste v. M/V Testbank, 752\n F.2d 1019 (5th Cir. 1985), and their progeny[.]\n\nThus, the parties specifically bargained for an order by the district court\nlimiting the class of claimants who could recover under the HESI Settlements\nto “claimants who have standing to bring claims under general maritime law”\nas interpreted by the two named cases and their progeny.\n Robins Dry Dock stands for the proposition that a plaintiff who sustains\nonly economic loss unaccompanied by personal injury or property damage\ngenerally does not have standing to recover damages under maritime law. See\nRobins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 309 (1927); Wiltz v. Bayer\nCropScience, Ltd. P’ship, 645 F.3d 690, 695–96 (5th Cir. 2011). In M/V\nTestbank, we noted that “[a] substantial argument can be made that\ncommercial fishermen possess a proprietary interest in fish in waters they\nnormally harvest sufficient to allow recovery for their loss.” State of La. ex rel.\nGuste v. M/V Testbank, 752 F.2d 1019, 1027 n.10 (5th Cir. 1985). But we\ndeclined to decide whether commercial fishermen were an exception to the\nRobins Dry Dock rule. Id.\n The district court order referenced in the provision—the order on the\nmotions to dismiss the B1 complaint—interpreted these two cases, in\n 15\n\f Case: 18-30243 Document: 00515074428 Page: 16 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nconjunction with the district court’s decision in M/V Testbank, as creating an\nexception to Robins Dry Dock to allow commercial fishermen to sue for mere\neconomic loss arising out of the Deepwater Horizon oil spill. Order and Reasons\nGranting in Part, Denying in Part, Defendants’ Motions to Dismiss the B1\nMaster Complaint at 19–20, In re Oil Spill by the Oil Rig “Deepwater Horizon”\nin the Gulf of Mex. on Apr. 20, 2010, No. 2:10-md-2179-CJB-JCW (E.D. La.\nAug. 26, 2011), ECF No. 3830. In light of this interpretation, we read the\nabove-quoted provision to indicate that for the purposes of the HESI\nSettlements, the Fishermen are not barred from recovery by Robins Dry Dock\neven though we have not affirmatively established that they would have\nstanding under that rule. However, this provision does not purport to\neliminate standing issues unrelated to Robins Dry Dock, especially the\nfundamental requirement that a plaintiff has suffered injury in fact. See Lujan\nv. Defs. of Wildlife, 504 U.S. 555, 560 (1992).\n Thus, this case is distinguishable from Bon Secour Fisheries in that the\nsettlement at issue there—the familiar E&P Settlement—set out express\ncausation requirements that departed from the proof of causation a claimant\nwould have been required to provide under general tort law. 744 F.3d at 375–\n77. Here, the HESI Settlements contemplate that the class encompasses only\nclaimants “who have standing to bring claims under general maritime law”—\nsuggesting that claimants must make the same showing of standing to recover\nunder the settlements as they would under maritime law, subject to the district\ncourt’s interpretation of Robins Dry Dock and M/V Testbank. Unlike in Bon\nSecour Fisheries, the Appellees did not “contractually concede” standing under\nthe HESI Settlements.\n For the reasons described, we hold that requiring the Fishermen to\nestablish underlying compensatory damages claims by complying with PTO\n 16\n\f Case: 18-30243 Document: 00515074428 Page: 17 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\n60—in other words, requiring them to have standing to recover punitive\ndamages under maritime law—was not contrary to the terms of the HESI\nSettlements.\n 2.\n The Fishermen next argue that PTO 60 did not apply to them.\nSpecifically, they contend that the district court’s conclusion that PTO 60\napplied to unnamed class members in class action suits was incorrect because\nPTO 60 only mentions “mass joinder” plaintiffs, and class actions are distinct\nfrom mass joinder suits. Although the Fishermen acknowledge that we\naffirmed the district court’s dismissal of class action claims under PTO 60 in\nPerez, they “make a good-faith assertion that the Perez ruling was incorrect\nand should be reconsidered.” See In re Deepwater Horizon (Perez), 713 F. App’x\n360 (5th Cir. 2018).\n We review the district court’s docket management decisions for an abuse\nof discretion, affording “special deference” to a district court administering an\nMDL. Barrera, 907 F.3d at 234–35. In Perez, the appellants, who had filed a\nseries of class action suits in the BP MDL, challenged the district court’s\ndecision that they were required to comply with PTO 60 and file single-plaintiff\nlawsuits instead. 713 F. App’x at 362. Observing that PTO 60 applied to class\nactions, we affirmed the district court’s dismissal of the appellants’ class action\nclaims with prejudice. Id. The Supreme Court denied the appellants’ petition\nfor a writ of certiorari. Perez v. B.P., P.L.C., No. 18-59, 139 S. Ct. 231 (Oct. 1,\n2018). We see no reason to revisit Perez here: The district court did not err in\napplying PTO 60 to unnamed class members.\n 3.\n The Fishermen’s third basis for challenging the magistrate judge’s\ndecision is that requiring them to comply with PTO 60 violated their due\n 17\n\f Case: 18-30243 Document: 00515074428 Page: 18 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nprocess rights. Their core argument in this regard is that they “did not have\nconstitutionally adequate notice that they had to comply [with PTO 60] in\norder to receive compensation under the [HESI Settlements].” Whether a\nclaimant’s due process rights were violated is a question of law that this court\nreviews de novo. See Simi Inv. Co. v. Harris Cty., 236 F.3d 240, 249 (5th Cir.\n2000).\n On this issue, the Fishermen first point to the district court’s decision to\nexcuse noncompliance with PTO 60 for certain claimants due to a “notice gap.”\nThey also contend that the terms of PTO 60, the terms of the HESI\nSettlements, and the notices of those settlements sent to class members did\nnot adequately inform them that compliance with PTO 60 was a prerequisite\nto recovery under the settlements. Finally, while the Fishermen acknowledge\nthat the Distribution Model put them on notice of the requirement to file\nindividual lawsuits, they emphasize that the Distribution Model was not filed\nuntil after the deadline to comply with PTO 60 had expired.\n The Fishermen’s “notice gap” argument analogizes their situation to that\nof Zat’s Restaurant, a claimant that the district court excused from compliance\nwith PTO 60 because it had not received notice of that order. As addressed\nabove, we reject this argument because, unlike Zat’s, the Fishermen did not\nattempt to comply with PTO 60 once they did receive notice of it. In fact, we\nobserve that the Fishermen had numerous opportunities to comply with, object\nto, or otherwise challenge the PTO 60 compliance requirement before their\nclaims were denied by the Claims Administrator, but they failed to do so. First,\nthe Fishermen had an opportunity to respond to the district court’s show cause\norder with respect to PTO 60 after they unequivocally received notice via the\nDistribution Model that failure to comply with PTO 60 would bar their claims\nunder the HESI Settlements. Second, the Fishermen had an opportunity to\n 18\n\f Case: 18-30243 Document: 00515074428 Page: 19 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nobject to the Distribution Model itself based on the PTO 60 compliance\nrequirement. Third, the Fishermen had an opportunity to participate in a\nfairness hearing before the district court to challenge the Distribution Model\nbased on the PTO 60 compliance requirement. Fourth, the Fishermen had an\nopportunity to appeal the district court’s order approving the HESI\nSettlements and Distribution Model based on the PTO 60 compliance\nrequirement.\n Given the above, we cannot conclude that the Fishermen did not receive\nadequate notice or an opportunity to be heard on the PTO 60 compliance issue.\nSee Barrera, 907 F.3d at 236 (affirming dismissal of plaintiffs’ claims for failure\nto comply with PTO 60 “[g]iven the number of opportunities the district court\ngave Plaintiffs to either comply with PTO 60 [or] explain why they could not\ndo so”). Requiring compliance with PTO 60 to recover under the HESI\nSettlements did not violate the Fishermen’s due process rights.\n None of the Fishermen’s arguments convince us that the magistrate\njudge’s decision to affirm the denial of their claims was incorrect. We therefore\nhold that the magistrate judge did not err in applying PTO 60 to the\nFishermen’s claims under the HESI Settlements.\n C.\n The Fishermen also complain that the district court erred in declining to\nreview their objections to the magistrate judge’s decision. First, they note that\nthe district court’s order referring matters to the magistrate judge (the Referral\nOrder) only delegated “questions regarding the amount of payments.” This is\nnot correct. The Referral Order, which the parties agreed to, referred “all\nappeals of claim determinations by the HESI/Transocean settlements claims\nadministrator” to the magistrate judge. Thus, the Fishermen’s appeal from\n\n\n 19\n\f Case: 18-30243 Document: 00515074428 Page: 20 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\nthe denial of their claims was within the scope of the Referral Order and was\nproperly reviewed by the magistrate judge.\n Second, the Fishermen point to the district court’s statement in its order\napproving the HESI Settlements that objections to the PTO 60 compliance\nrequirement were “most properly considered in an appeal to [the district court]\nafter claim determinations [were] concluded.” In the Fishermen’s view, this\nstatement reserved the PTO 60 compliance issue for the district court’s review,\nso it should not have been delegated to the magistrate judge. However, the\nFishermen cite no authority for the proposition that this determination was\nnot delegable to the magistrate judge. On the contrary, that is precisely what\nthe parties agreed to in the Referral Order, which the district court issued after\nthe approval order in which it expressed that it would consider the PTO 60\ncompliance issue at a later time. Thus, as the magistrate judge recognized, his\ndecision in this case was the promised consideration of the PTO 60 compliance\nissue at a later stage of the proceedings. That the Fishermen disagree with\nthe magistrate judge’s decision on that issue does not permit them to\ncircumvent the Referral Order that they bargained for.\n D.\n Finally, the Fishermen contend that the district court erred in denying\ntheir Rule 60(b) motion, which they filed a year after the district court issued\nthe order approving the Distribution Model. This court reviews a district\ncourt’s denial of a Rule 60(b) motion for an abuse of discretion. Lowry Dev.,\nL.L.C. v. Groves & Assocs. Ins., Inc., 690 F.3d 382, 385 (5th Cir. 2012). As the\nFishermen explain, their Rule 60(b) motion raised the same arguments that\nthey raised in their appeal of the magistrate judge’s decision affirming the\ndenial of their claims. Because we conclude that the magistrate judge’s\n\n\n 20\n\f Case: 18-30243 Document: 00515074428 Page: 21 Date Filed: 08/13/2019\n\n\n\n No. 18-30243\n c/w 18-30413 & 18-30533\n\ndecision was correct, we hold that the district court did not err in denying the\nFishermen’s Rule 60(b) motion for the same reasons.\n IV.\n We recognize that, in the unique facts of this case, our holding leads to\nan unfortunate result for the Fishermen, who were unnamed, unrepresented\nclass members for much of these proceedings—the record is not clear as to\nwhen they became represented. As a result, as even the Appellees recognized\nat oral argument, affirming the denial of the Fishermen’s claims may appear\nunduly harsh. However, we are bound by our precedent, by the plain language\nof the HESI Settlements, and by the deferential standard of review applicable\nto several of the issues in this case. Under those standards, the magistrate\njudge correctly affirmed the denial of the Fishermen’s claims, the district court\ndid not err in declining to review the magistrate judge’s decision, and the\ndistrict court did not err in denying the Fishermen’s Rule 60(b) motion. We\nmust therefore AFFIRM the district court’s judgment.\n\n\n\n\n 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In RE: DEEPWATER HORIZON Lake Eugenie Land & Development, Incorporated ; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. John M. Petitjean, Individually and on Behalf of a Putative Class; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. Economic and Property Damages Settlement Class, in the Matter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated 12cv970, Plaintiff, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. in Re: Deepwater Horizon Lake Eugenie Land & Development, Incorporated ; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. John M. Petitjean, Individually and on Behalf of a Putative Class; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Halliburton Company, Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. John M. Petitjean, Individually and on Behalf of a Putative Class; Et Al, Plaintiffs, v. Triton Asset Leasing GmbH ; Transocean Deepwater, Incorporated ; Transocean Holdings, L.L.C. ; Transocean Offshore Deepwater Drilling, Incorporated, Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. Economic and Property Damages Settlement Class, in the Matter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated 12cv970, Plaintiff, v. Halliburton Energy Services, Incorporated, Defendant - Appellee, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. in Re: Deepwater Horizon Dobby Darna; Darrin Covert; Richard Delacey; Joseph Williamson; George Zirlott, Plaintiffs - Appellants, v. Halliburton Energy Services, Incorporated; Halliburton Company; Transocean Holdings, L.L.C. ; Triton Asset Leasing Gmbh ; Transocean Deepwater, Incorporated ; Transocean Offshore Deepwater Drilling, Incorporated, Defendants - Appellees.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-30243 Document: 00515074428 Page: 1 Date Filed: 08/13/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-30243 FILED\\n August 13, 2019\\n Lyle W. Cayce\\nIN RE: DEEPWATER HORIZON Clerk\\n____________________\\n\\nLAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; ET AL,\\n\\n Plaintiffs,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\\nHOLDINGS, L.L.C.,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n____________________\\n\\nJOHN M. PETITJEAN, individually and on behalf of a putative class; ET AL,\\n\\n Plaintiffs,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\\nHOLDINGS, L.L.C.,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\f Case: 18-30243 Document: 00515074428 Page: 2 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n____________________\\n\\nECONOMIC and PROPERTY DAMAGES SETTLEMENT CLASS, in the\\nmatter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated\\n12cv970,\\n\\n Plaintiff,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\\nHOLDINGS, L.L.C.,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n\\n\\nCONSOLIDATED WITH 18-30413\\n\\nIN RE: DEEPWATER HORIZON\\n____________________________\\n\\nLAKE EUGENIE LAND & DEVELOPMENT, INCORPORATED; ET AL,\\n\\n Plaintiffs,\\n\\nv.\\n\\n\\n\\n\\n 2\\n\\f Case: 18-30243 Document: 00515074428 Page: 3 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; TRANSOCEAN\\nHOLDINGS, L.L.C.,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n____________________________\\n\\nJOHN M. PETITJEAN, individually and on behalf of a putative class; ET AL,\\n\\n Plaintiffs,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; HALLIBURTON\\nCOMPANY,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n\\n___________________________\\n\\nJOHN M. PETITJEAN, individually and on behalf of a putative class; ET AL,\\n\\n Plaintiffs,\\n\\nv.\\n\\n\\n\\n 3\\n\\f Case: 18-30243 Document: 00515074428 Page: 4 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nTRITON ASSET LEASING GmbH; TRANSOCEAN DEEPWATER,\\nINCORPORATED; TRANSOCEAN HOLDINGS, L.L.C.; TRANSOCEAN\\nOFFSHORE DEEPWATER DRILLING, INCORPORATED,\\n\\n Defendants – Appellees,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n_____________________________\\n\\nECONOMIC and PROPERTY DAMAGES SETTLEMENT CLASS, in the\\nmatter of Bon Secour Fisheries v. BP Exploration & Production, Incorporated\\n12cv970,\\n\\n Plaintiff,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED,\\n\\n Defendant – Appellee,\\n\\nv.\\n\\nJULIUS BARBOUR; EDWARD BARNHILL, JR.; EDWARD BARNHILL,\\nSR.; KAREN BARNHILL; SCOTT BLACK; ET AL,\\n\\n Movants – Appellants.\\n\\n\\nCONSOLIDATED WITH 18-30533\\n\\nIn re: Deepwater Horizon\\n\\n--------------------------\\n\\n 4\\n\\f Case: 18-30243 Document: 00515074428 Page: 5 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nDOBBY DARNA; DARRIN COVERT; RICHARD DELACEY; JOSEPH\\nWILLIAMSON; GEORGE ZIRLOTT,\\n\\n Plaintiffs – Appellants,\\n\\nv.\\n\\nHALLIBURTON ENERGY SERVICES, INCORPORATED; HALLIBURTON\\nCOMPANY; TRANSOCEAN HOLDINGS, L.L.C.; TRITON ASSET LEASING\\nGMBH; TRANSOCEAN DEEPWATER, INCORPORATED; TRANSOCEAN\\nOFFSHORE DEEPWATER DRILLING, INCORPORATED,\\n\\n Defendants – Appellees.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Eastern District of Louisiana\\n Nos. 2:10-MD-2179, 2:12-CV-970, 2:15-CV-4143,\\n 2:15-CV-4146, and 2:15-CV-4654\\n\\n\\nBefore KING, ELROD, and ENGELHARDT, Circuit Judges.\\nPER CURIAM:\\n Following the Deepwater Horizon disaster, Halliburton Energy Services,\\nInc. and Transocean Holdings, L.L.C. each entered into a punitive damages\\nsettlement agreement with a class of claimants who alleged that they were\\nharmed by the oil spill. In these consolidated appeals, a group of menhaden\\nfishermen challenge the denial of their claims pursuant to those settlements.\\nBecause the magistrate judge properly affirmed the denial of the claims and\\nthe district court properly declined review, we AFFIRM.\\n\\n\\n\\n\\n 5\\n\\f Case: 18-30243 Document: 00515074428 Page: 6 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\n I.\\n Appellants are commercial menhaden fishermen (the Fishermen) who\\nallegedly suffered economic loss due to the Deepwater Horizon oil spill. The\\nFishermen did not file separate lawsuits against BP or any of the other entities\\ninvolved in the spill. However, they fell within the class definition in the class-\\naction portion of the B1 Master Complaint filed in the Deepwater Horizon\\nMDL. 1 The B1 Master Complaint sought compensatory and punitive damages\\non behalf of the B1 plaintiffs and class members.\\n The familiar Deepwater Horizon Economic and Property Damages\\nSettlement (E&P Settlement) eventually resolved the majority of the claims\\nasserted in the B1 Master Complaint. However, the terms of that agreement\\nspecifically excluded the Fishermen. Instead, the Fishermen entered into\\nsettlement agreements with the Appellees, Halliburton Energy Services, Inc.\\n(HESI) and Transocean Holdings, L.L.C. (Transocean). These class settlement\\nagreements (the HESI Settlements) created a fund to distribute among the\\nclaimants for punitive damages arising out of the oil spill, and the parties agree\\nthat the Fishermen fit within the class definition set out in the settlements. 2\\nThe HESI Settlements also include a provision limiting the claimants’ rights\\n\\n\\n\\n 1 As we explained in Graham, the district court divided the claims against BP,\\nTransocean, and the other entities into pleading bundles for ease of administration. In re\\nDeepwater Horizon (Graham), 922 F.3d 660, 664 (5th Cir. 2019). The B1 Master Complaint\\nasserted claims on behalf of plaintiffs in the B1 pleading bundle, which encompassed claims\\nfor “non-governmental economic loss and property damages.” The class-action portion of the\\ncomplaint defined the class as follows: “All individuals and entities residing or owning\\nproperty in the United States who claim economic losses, or damages to their occupations,\\nbusinesses, and/or property as a result of the April 20, 2010 explosions and fire aboard, and\\nsinking of, the Deepwater Horizon, and the resulting Spill.”\\n\\n 2The terms of the two HESI Settlements are substantially the same for purposes of\\nthis appeal, except where otherwise indicated.\\n\\n 6\\n\\f Case: 18-30243 Document: 00515074428 Page: 7 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nto appeal to this court. The HESI Settlements were entered into and filed with\\nthe district court on September 2, 2014 (HESI) and May 29, 2015\\n(Transocean). 3\\n While these settlements were awaiting district court approval, the\\ndistrict court issued Pretrial Order 60 (PTO 60) on March 29, 2016, which\\napplied to all claims in the B1 pleading bundle. Foreseeing “no further\\nadministrative or procedural benefit to maintaining” the B1 Master\\nComplaint, PTO 60 first dismissed that complaint. It then instructed\\n“[p]laintiffs [who] did not file an individual lawsuit, but instead filed a [short-\\nform joinder] and/or were part of a complaint with more than one plaintiff” to\\nfile an individual lawsuit with the district court by May 2, 2016. PTO 60\\nwarned that plaintiffs who failed to comply would “have their claims deemed\\ndismissed with prejudice without further notice.”\\n On April 12, 2016, the district court preliminarily approved the HESI\\nSettlements, and notice of their terms was given to class members, including\\nthe Fishermen. The April 12, 2016 order, inter alia, set deadlines for objecting\\nto (September 23, 2016) and opting out of (October 16, 2016) the proposed\\nsettlements and scheduled a fairness hearing to be held on October 20, 2016.\\nA few weeks later, on May 2, 2016, the deadline to comply with PTO 60 expired.\\nThe Fishermen did not file individual lawsuits, nor did they seek relief from\\nPTO 60 or additional time to comply. On June 7, 2016, the district court issued\\na show cause order to B1 plaintiffs who had failed to comply with PTO 60. The\\nFishermen did not respond to the order. Thereafter, on July 14, 2016, the\\ndistrict court found that “[a]ll remaining Plaintiffs in the B1 bundle . . . [were]\\ndeemed noncompliant with PTO 60” and dismissed their claims with prejudice.\\n\\n\\n 3 The HESI Settlement was amended on September 2, 2015.\\n 7\\n\\f Case: 18-30243 Document: 00515074428 Page: 8 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nOrder Re: Compliance with PTO 60 at 5, In re Oil Spill by the Oil Rig\\n“Deepwater Horizon” in the Gulf of Mex. on Apr. 20, 2010, No. 2:10-md-2179-\\nCJB-JCW (E.D. La. July 14, 2016), ECF No. 20996.\\n After the issuance of the June 7, 2016 show cause order but before the\\nJune 28, 2016 deadline to respond, the Claims Administrator for the HESI\\nSettlements filed a proposed Distribution Model on June 13, 2016 detailing\\nhow claims would be processed under the agreements. The Distribution Model\\nspecified that commercial fishermen, including menhaden fishermen, would be\\nrequired to provide “proof of [their] timely preservation of [their] rights to a\\nclaim for damages by compliance with [PTO 60].” Both the Distribution Model\\nand the attached Claim Form warned that claims would be assigned a value of\\n$0 if the claimant had failed to comply with PTO 60. Although other class\\nmembers filed objections to the Distribution Model on the ground that it\\nimproperly required claimants to comply with PTO 60, the Fishermen did not\\nobject. Nor did the Fishermen attend the “fairness hearing” that the district\\ncourt held in November 2016 to address objections to the Distribution Model.\\n On February 15, 2017, the district court gave its final approval of the\\nHESI Settlements and the Claims Administrator’s Distribution Model. In its\\napproval order, the district court declined to comment on the propriety of the\\nClaims Administrator’s interpretation of the HESI Settlements as requiring\\ncompliance with PTO 60. Instead, the district court observed that “[t]his\\nobjection [was] most properly considered in an appeal to [the district court]\\nafter claim determinations [were] concluded.” On February 14, 2018, a year\\nafter the district court issued the approval order, the Fishermen filed a Federal\\nRule of Civil Procedure 60(b) motion for relief from that order, arguing that the\\nDistribution Model was contrary to the terms of the HESI Settlements and\\n\\n\\n 8\\n\\f Case: 18-30243 Document: 00515074428 Page: 9 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nthat they had not received adequate notice of PTO 60 or its applicability to\\ntheir claims. The district court denied the motion.\\n The Fishermen submitted claims pursuant to the HESI Settlements, but\\nthe Claims Administrator denied them because the Fishermen had failed to\\ncomply with PTO 60. The Fishermen then appealed to the district court, which\\nhad referred “all appeals of claim determinations by the HESI/Transocean\\nsettlements claims administrator” to the magistrate judge pursuant to an\\nagreement between the parties. The magistrate judge affirmed the denial,\\nholding that requiring the Fishermen to comply with PTO 60 was consistent\\nwith the terms of the HESI Settlements and “the general maritime law precept\\nthat a claimant may obtain punitive damages only if that claimant has\\nunderlying compensatory damages.”\\n The Fishermen objected to the magistrate judge’s determination,\\ncomplaining that his reliance on PTO 60 was contrary to the terms of the HESI\\nSettlements and violated their due process rights. The district court overruled\\nthe objection on the ground that the claimants had waived their right to appeal\\nthe magistrate judge’s determination to any other court, including the Fifth\\nCircuit. The Fishermen then appealed to this court.\\n II.\\n As an initial matter, we address the Fishermen’s pending motion to take\\njudicial notice of the docket and complaint in Bruhmuller v. BP Exploration &\\nProduction Inc. Complaint, Bruhmuller v. BP Expl. & Prod. Inc., No. 2:13-CV-\\n97 (E.D. La. Jan. 18, 2013), ECF No. 1. We may take judicial notice of prior\\ncourt proceedings as matters of public record. ITT Rayonier Inc. v. United\\nStates, 651 F.2d 343, 345 n.2 (5th Cir. 1981) (“A court may . . . take judicial\\nnotice of its own records or of those of inferior courts.”). We GRANT the motion,\\nand we have considered these materials in our review of the case.\\n 9\\n\\f Case: 18-30243 Document: 00515074428 Page: 10 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\n III.\\n The Fishermen raise four issues on appeal: (1) whether this appeal is\\nbarred by the appeal waiver in the HESI Settlements; (2) whether the\\nmagistrate judge erred in affirming the denial of their claims; (3) whether the\\ndistrict court erred by declining to review the magistrate judge’s decision; and\\n(4) whether the district court erred in denying their Rule 60(b) motion.\\n A.\\n The appeal waiver in the HESI Settlement reads as follows:\\n [T]he Claims Administrator shall establish rules for\\n appealing the determinations of the Claims Administrator to the\\n [district] Court. The [district] Court’s decision on any such appeal\\n involving the amount of any payment to any individual claimant\\n (other than a determination that a claimant is not entitled to any\\n payment due to a failure to meet the class definition) shall be final\\n and binding, and there shall be no appeal to any other court\\n including the U.S. Court of Appeals for the Fifth Circuit.\\n\\nThe Transocean Settlement contains a similar provision, but it omits the\\nexception in parentheses.\\n The Fishermen argue that this appeal waiver does not foreclose our\\nreview because their appeal does not “involv[e] the amount of any payment to\\nany individual claimant” under the HESI Settlements—instead, the Claims\\nAdministrator determined that they were not eligible to recover at all.\\nAlternatively, they argue that their appeal fits within the parenthetical\\nexception for “a determination that a claimant is not entitled to any payment\\ndue to a failure to meet the class definition.” The Appellees respond that “the\\nClaims Administrator’s decision was that Appellants are entitled to receive $0,\\na clear determination as to ‘the amount of payment to any individual\\nclaimant.’”\\n\\n\\n 10\\n\\f Case: 18-30243 Document: 00515074428 Page: 11 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\n We have enforced appeal waivers in settlement agreements in prior\\nunpublished cases. See Hill v. Schilling, 495 F. App’x 480, 487–88 (5th Cir.\\n2012); Campbell Harrison & Dagley, L.L.P. v. Hill, 582 F. App’x 522, 523–24\\n(5th Cir. 2014). And in the context of the Deepwater Horizon settlements\\nspecifically, we have indicated that we would enforce an express waiver of the\\nright to appeal from the district court’s claim determinations. In re Deepwater\\nHorizon, 785 F.3d 986, 997 (5th Cir. 2015). But because we conclude that the\\nFishermen cannot prevail on the merits, we need not determine whether the\\nappeal waiver in the HESI Settlements bars their appeal. See United States\\nv. Story, 439 F.3d 226, 230 (5th Cir. 2006) (“[A]ppeal waivers . . . do not deprive\\nus of jurisdiction.”).\\n B.\\n We turn next to the issue of whether the magistrate judge erred in\\naffirming the denial of the Fishermen’s claims. We conclude that the\\nmagistrate judge’s decision was correct.\\n Under maritime law, a plaintiff’s recovery of punitive damages is tied to\\nhis or her underlying compensatory damages claim. See Exxon Shipping Co. v\\nBaker, 554 U.S. 471, 506–07 (2008). It is unsurprising, then, that the HESI\\nSettlements contemplated that claimants would need to “establish a claim for\\ncommercial fishing loss” to recover punitive damages. The Distribution Model\\nset out three methods by which claimants could establish a compensatory\\ndamages claim: (1) by filing a claim pursuant to the E&P Settlement; (2) by\\nfiling proof of a separate settlement with BP that did not release the claimant’s\\npunitive damages claims; or (3) by filing an individual lawsuit as required by\\nPTO 60. As we explained, the Fishermen were excluded from the E&P\\nSettlement, and they do not argue here that they entered into a separate\\ncompensatory damages settlement with BP. Consequently, to establish a\\n 11\\n\\f Case: 18-30243 Document: 00515074428 Page: 12 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\ncompensatory damages claim upon which to predicate their recovery of\\npunitive damages under the HESI Settlements, the Fishermen had to comply\\nwith PTO 60.\\n The Fishermen acknowledge that they received notice of this obligation\\nto comply with PTO 60 at the latest when the Claims Administrator filed the\\nDistribution Model in the district court on June 13, 2016. At that time,\\nalthough the deadline to comply with PTO 60 had passed, the district court’s\\nshow cause order was in effect, and the deadline to respond—June 28, 2016—\\nwas two weeks away. The Fishermen did not respond to the show cause order,\\nnor did they attempt at any point to file individual lawsuits or seek additional\\ntime to comply with PTO 60, although the district court had granted extensions\\nto other parties.\\n The circumstances of this case are quite similar to those in our recent\\ndecision in Barrera. In re Deepwater Horizon (Barrera), 907 F.3d 232 (5th Cir.\\n2018). There, although the plaintiff-fishermen received notice of PTO 60, they\\nfailed to comply, arguing that they were unable to file individual lawsuits\\nbecause they were working offshore. Id. at 234. The district court dismissed\\ntheir claims with prejudice, and we affirmed, observing that the plaintiffs had\\na “number of opportunities . . . to either comply with PTO 60 [or] explain why\\nthey could not do so.” Id. at 235–37. As in Barrera, the Fishermen here knew\\nof their obligation to comply with PTO 60 but still failed to file individual\\nlawsuits. And unlike in Barrera, the Fishermen did not attempt to comply\\nwith PTO 60 at any point throughout these proceedings. The magistrate judge\\ntherefore correctly affirmed the denial of their claims.\\n Despite the above, the Fishermen challenge the magistrate judge’s\\ndecision on several grounds: (1) requiring compliance with PTO 60 was\\ncontrary to the terms of the HESI Settlements; (2) PTO 60 did not apply to the\\n 12\\n\\f Case: 18-30243 Document: 00515074428 Page: 13 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nFishermen; and (3) requiring compliance with PTO 60 violated the Fishermen’s\\ndue process rights. Each of these arguments is unavailing.\\n 1.\\n The Fishermen first contend that requiring compliance with PTO 60 was\\ncontrary to the terms of the HESI Settlements, arguing that the settlements\\ndeem any claimant who fits within the class definition to have standing. Thus,\\nthey maintain that they did not need to make a separate showing of standing\\nby filing individual lawsuits to preserve their compensatory damages claims.\\nAccording to the Fishermen, this was a “contractual concession” by the\\nAppellees similar to BP’s contractual concession that proof of causation was\\nnot required under the E&P Settlement. See In re Deepwater Horizon (Bon\\nSecour Fisheries), 744 F.3d 370, 377 (5th Cir. 2014). The Fishermen also\\nemphasize that “the law is not settled in this circuit” as to whether they have\\nstanding, but the HESI Settlements nonetheless expressly include them in the\\nclass definition. They argue that the HESI Settlements would not have\\nincluded claimants whose standing is unclear in the class definition if a\\nseparate showing of standing was required—instead, a claimant is entitled to\\nrecover under the HESI Settlements merely by proving that he is a member of\\nthe class.\\n “The interpretation of a settlement agreement is a question of contract\\nlaw that this [c]ourt reviews de novo.” In re Deepwater Horizon, 785 F.3d 1003,\\n1011 (5th Cir. 2015). The primary provision of the HESI Settlements on which\\nthe Fishermen rely to deem standing is the class description found in Section\\n3: “It is the intent of the Parties to capture within the New Class definition all\\npotential claimants . . . who may have valid maritime law standing to make a\\nPunitive Damages Claim under general maritime law against [Appellees.]”\\nHowever, the class definition in Section 4 does not include any language\\n 13\\n\\f Case: 18-30243 Document: 00515074428 Page: 14 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nregarding standing. Nor does the quoted language from the class description\\nunequivocally deem standing for class members as the Fishermen contend.\\nInstead, the class description provision demonstrates that the parties\\nrecognized that the class definition encompasses claimants whose standing is\\nuncertain under existing law, without saying anything about whether a\\nseparate showing of maritime standing is required for recovery under the\\nsettlements. At best, this provision is silent as to whether class members must\\nseparately prove standing.\\n Helpfully, the class description in Section 3 is not the only provision in\\nthe HESI Settlements that sheds light on whether claimants were deemed to\\nhave standing such that compliance with PTO 60 was unnecessary. First, the\\nHESI Settlements contain the statement that “this [settlement agreement]\\nshall be interpreted in accord with general maritime law.” As we discussed\\nabove, maritime law links a plaintiff’s recovery of punitive damages to his or\\nher underlying compensatory damages claim. See Exxon Shipping Co., 554\\nU.S. at 506–07.\\n In addition, as we also noted above, the section of the HESI Settlements\\nproviding for the creation of the Distribution Model by the Claims\\nAdministrator, Section 8, contains the following provision: “The plan for\\ndistribution of payments to the New Class recommended by the Claims\\nAdministrator may, at his/her discretion, include . . . a standard to establish a\\nclaim for commercial fishing loss.” This expressly recognizes that claimants\\nmay be required to demonstrate that they have a claim for loss—in other\\nwords, a claim seeking compensatory damages—in order to proceed under the\\nHESI Settlements. By requiring compliance with PTO 60 as one possible way\\nto establish such a claim, the Claims Administrator was exercising the\\ndiscretion afforded him under this provision.\\n 14\\n\\f Case: 18-30243 Document: 00515074428 Page: 15 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\n Finally, in Section 19, the HESI Settlements contain a series of\\nprovisions stipulating that the parties will seek certain orders from the district\\ncourt to effectuate the settlements. One of those provisions requires the parties\\nto obtain an order that:\\n Adopt[s] the interpretation as to the scope of Robins Dry Dock in\\n the [district court’s] Order and Reasons [As to Motions to Dismiss\\n the B1 Master Complaint] . . . by finding that the New Class as\\n defined and described in sections 3 and 4 includes all potential\\n claimants who have standing to bring claims under general\\n maritime law as interpreted by Robins Dry Dock v. Flint, 275 U.S.\\n 203 (1927), State of Louisiana ex. Rel. Guste v. M/V Testbank, 752\\n F.2d 1019 (5th Cir. 1985), and their progeny[.]\\n\\nThus, the parties specifically bargained for an order by the district court\\nlimiting the class of claimants who could recover under the HESI Settlements\\nto “claimants who have standing to bring claims under general maritime law”\\nas interpreted by the two named cases and their progeny.\\n Robins Dry Dock stands for the proposition that a plaintiff who sustains\\nonly economic loss unaccompanied by personal injury or property damage\\ngenerally does not have standing to recover damages under maritime law. See\\nRobins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 309 (1927); Wiltz v. Bayer\\nCropScience, Ltd. P’ship, 645 F.3d 690, 695–96 (5th Cir. 2011). In M/V\\nTestbank, we noted that “[a] substantial argument can be made that\\ncommercial fishermen possess a proprietary interest in fish in waters they\\nnormally harvest sufficient to allow recovery for their loss.” State of La. ex rel.\\nGuste v. M/V Testbank, 752 F.2d 1019, 1027 n.10 (5th Cir. 1985). But we\\ndeclined to decide whether commercial fishermen were an exception to the\\nRobins Dry Dock rule. Id.\\n The district court order referenced in the provision—the order on the\\nmotions to dismiss the B1 complaint—interpreted these two cases, in\\n 15\\n\\f Case: 18-30243 Document: 00515074428 Page: 16 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nconjunction with the district court’s decision in M/V Testbank, as creating an\\nexception to Robins Dry Dock to allow commercial fishermen to sue for mere\\neconomic loss arising out of the Deepwater Horizon oil spill. Order and Reasons\\nGranting in Part, Denying in Part, Defendants’ Motions to Dismiss the B1\\nMaster Complaint at 19–20, In re Oil Spill by the Oil Rig “Deepwater Horizon”\\nin the Gulf of Mex. on Apr. 20, 2010, No. 2:10-md-2179-CJB-JCW (E.D. La.\\nAug. 26, 2011), ECF No. 3830. In light of this interpretation, we read the\\nabove-quoted provision to indicate that for the purposes of the HESI\\nSettlements, the Fishermen are not barred from recovery by Robins Dry Dock\\neven though we have not affirmatively established that they would have\\nstanding under that rule. However, this provision does not purport to\\neliminate standing issues unrelated to Robins Dry Dock, especially the\\nfundamental requirement that a plaintiff has suffered injury in fact. See Lujan\\nv. Defs. of Wildlife, 504 U.S. 555, 560 (1992).\\n Thus, this case is distinguishable from Bon Secour Fisheries in that the\\nsettlement at issue there—the familiar E&P Settlement—set out express\\ncausation requirements that departed from the proof of causation a claimant\\nwould have been required to provide under general tort law. 744 F.3d at 375–\\n77. Here, the HESI Settlements contemplate that the class encompasses only\\nclaimants “who have standing to bring claims under general maritime law”—\\nsuggesting that claimants must make the same showing of standing to recover\\nunder the settlements as they would under maritime law, subject to the district\\ncourt’s interpretation of Robins Dry Dock and M/V Testbank. Unlike in Bon\\nSecour Fisheries, the Appellees did not “contractually concede” standing under\\nthe HESI Settlements.\\n For the reasons described, we hold that requiring the Fishermen to\\nestablish underlying compensatory damages claims by complying with PTO\\n 16\\n\\f Case: 18-30243 Document: 00515074428 Page: 17 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\n60—in other words, requiring them to have standing to recover punitive\\ndamages under maritime law—was not contrary to the terms of the HESI\\nSettlements.\\n 2.\\n The Fishermen next argue that PTO 60 did not apply to them.\\nSpecifically, they contend that the district court’s conclusion that PTO 60\\napplied to unnamed class members in class action suits was incorrect because\\nPTO 60 only mentions “mass joinder” plaintiffs, and class actions are distinct\\nfrom mass joinder suits. Although the Fishermen acknowledge that we\\naffirmed the district court’s dismissal of class action claims under PTO 60 in\\nPerez, they “make a good-faith assertion that the Perez ruling was incorrect\\nand should be reconsidered.” See In re Deepwater Horizon (Perez), 713 F. App’x\\n360 (5th Cir. 2018).\\n We review the district court’s docket management decisions for an abuse\\nof discretion, affording “special deference” to a district court administering an\\nMDL. Barrera, 907 F.3d at 234–35. In Perez, the appellants, who had filed a\\nseries of class action suits in the BP MDL, challenged the district court’s\\ndecision that they were required to comply with PTO 60 and file single-plaintiff\\nlawsuits instead. 713 F. App’x at 362. Observing that PTO 60 applied to class\\nactions, we affirmed the district court’s dismissal of the appellants’ class action\\nclaims with prejudice. Id. The Supreme Court denied the appellants’ petition\\nfor a writ of certiorari. Perez v. B.P., P.L.C., No. 18-59, 139 S. Ct. 231 (Oct. 1,\\n2018). We see no reason to revisit Perez here: The district court did not err in\\napplying PTO 60 to unnamed class members.\\n 3.\\n The Fishermen’s third basis for challenging the magistrate judge’s\\ndecision is that requiring them to comply with PTO 60 violated their due\\n 17\\n\\f Case: 18-30243 Document: 00515074428 Page: 18 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nprocess rights. Their core argument in this regard is that they “did not have\\nconstitutionally adequate notice that they had to comply [with PTO 60] in\\norder to receive compensation under the [HESI Settlements].” Whether a\\nclaimant’s due process rights were violated is a question of law that this court\\nreviews de novo. See Simi Inv. Co. v. Harris Cty., 236 F.3d 240, 249 (5th Cir.\\n2000).\\n On this issue, the Fishermen first point to the district court’s decision to\\nexcuse noncompliance with PTO 60 for certain claimants due to a “notice gap.”\\nThey also contend that the terms of PTO 60, the terms of the HESI\\nSettlements, and the notices of those settlements sent to class members did\\nnot adequately inform them that compliance with PTO 60 was a prerequisite\\nto recovery under the settlements. Finally, while the Fishermen acknowledge\\nthat the Distribution Model put them on notice of the requirement to file\\nindividual lawsuits, they emphasize that the Distribution Model was not filed\\nuntil after the deadline to comply with PTO 60 had expired.\\n The Fishermen’s “notice gap” argument analogizes their situation to that\\nof Zat’s Restaurant, a claimant that the district court excused from compliance\\nwith PTO 60 because it had not received notice of that order. As addressed\\nabove, we reject this argument because, unlike Zat’s, the Fishermen did not\\nattempt to comply with PTO 60 once they did receive notice of it. In fact, we\\nobserve that the Fishermen had numerous opportunities to comply with, object\\nto, or otherwise challenge the PTO 60 compliance requirement before their\\nclaims were denied by the Claims Administrator, but they failed to do so. First,\\nthe Fishermen had an opportunity to respond to the district court’s show cause\\norder with respect to PTO 60 after they unequivocally received notice via the\\nDistribution Model that failure to comply with PTO 60 would bar their claims\\nunder the HESI Settlements. Second, the Fishermen had an opportunity to\\n 18\\n\\f Case: 18-30243 Document: 00515074428 Page: 19 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nobject to the Distribution Model itself based on the PTO 60 compliance\\nrequirement. Third, the Fishermen had an opportunity to participate in a\\nfairness hearing before the district court to challenge the Distribution Model\\nbased on the PTO 60 compliance requirement. Fourth, the Fishermen had an\\nopportunity to appeal the district court’s order approving the HESI\\nSettlements and Distribution Model based on the PTO 60 compliance\\nrequirement.\\n Given the above, we cannot conclude that the Fishermen did not receive\\nadequate notice or an opportunity to be heard on the PTO 60 compliance issue.\\nSee Barrera, 907 F.3d at 236 (affirming dismissal of plaintiffs’ claims for failure\\nto comply with PTO 60 “[g]iven the number of opportunities the district court\\ngave Plaintiffs to either comply with PTO 60 [or] explain why they could not\\ndo so”). Requiring compliance with PTO 60 to recover under the HESI\\nSettlements did not violate the Fishermen’s due process rights.\\n None of the Fishermen’s arguments convince us that the magistrate\\njudge’s decision to affirm the denial of their claims was incorrect. We therefore\\nhold that the magistrate judge did not err in applying PTO 60 to the\\nFishermen’s claims under the HESI Settlements.\\n C.\\n The Fishermen also complain that the district court erred in declining to\\nreview their objections to the magistrate judge’s decision. First, they note that\\nthe district court’s order referring matters to the magistrate judge (the Referral\\nOrder) only delegated “questions regarding the amount of payments.” This is\\nnot correct. The Referral Order, which the parties agreed to, referred “all\\nappeals of claim determinations by the HESI/Transocean settlements claims\\nadministrator” to the magistrate judge. Thus, the Fishermen’s appeal from\\n\\n\\n 19\\n\\f Case: 18-30243 Document: 00515074428 Page: 20 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\nthe denial of their claims was within the scope of the Referral Order and was\\nproperly reviewed by the magistrate judge.\\n Second, the Fishermen point to the district court’s statement in its order\\napproving the HESI Settlements that objections to the PTO 60 compliance\\nrequirement were “most properly considered in an appeal to [the district court]\\nafter claim determinations [were] concluded.” In the Fishermen’s view, this\\nstatement reserved the PTO 60 compliance issue for the district court’s review,\\nso it should not have been delegated to the magistrate judge. However, the\\nFishermen cite no authority for the proposition that this determination was\\nnot delegable to the magistrate judge. On the contrary, that is precisely what\\nthe parties agreed to in the Referral Order, which the district court issued after\\nthe approval order in which it expressed that it would consider the PTO 60\\ncompliance issue at a later time. Thus, as the magistrate judge recognized, his\\ndecision in this case was the promised consideration of the PTO 60 compliance\\nissue at a later stage of the proceedings. That the Fishermen disagree with\\nthe magistrate judge’s decision on that issue does not permit them to\\ncircumvent the Referral Order that they bargained for.\\n D.\\n Finally, the Fishermen contend that the district court erred in denying\\ntheir Rule 60(b) motion, which they filed a year after the district court issued\\nthe order approving the Distribution Model. This court reviews a district\\ncourt’s denial of a Rule 60(b) motion for an abuse of discretion. Lowry Dev.,\\nL.L.C. v. Groves & Assocs. Ins., Inc., 690 F.3d 382, 385 (5th Cir. 2012). As the\\nFishermen explain, their Rule 60(b) motion raised the same arguments that\\nthey raised in their appeal of the magistrate judge’s decision affirming the\\ndenial of their claims. Because we conclude that the magistrate judge’s\\n\\n\\n 20\\n\\f Case: 18-30243 Document: 00515074428 Page: 21 Date Filed: 08/13/2019\\n\\n\\n\\n No. 18-30243\\n c/w 18-30413 & 18-30533\\n\\ndecision was correct, we hold that the district court did not err in denying the\\nFishermen’s Rule 60(b) motion for the same reasons.\\n IV.\\n We recognize that, in the unique facts of this case, our holding leads to\\nan unfortunate result for the Fishermen, who were unnamed, unrepresented\\nclass members for much of these proceedings—the record is not clear as to\\nwhen they became represented. As a result, as even the Appellees recognized\\nat oral argument, affirming the denial of the Fishermen’s claims may appear\\nunduly harsh. However, we are bound by our precedent, by the plain language\\nof the HESI Settlements, and by the deferential standard of review applicable\\nto several of the issues in this case. Under those standards, the magistrate\\njudge correctly affirmed the denial of the Fishermen’s claims, the district court\\ndid not err in declining to review the magistrate judge’s decision, and the\\ndistrict court did not err in denying the Fishermen’s Rule 60(b) motion. We\\nmust therefore AFFIRM the district court’s judgment.\\n\\n\\n\\n\\n 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3660,"cells":{"id":{"kind":"number","value":4648397,"string":"4,648,397"},"name":{"kind":"string","value":"ARCHER AND WHITE SALES, INCORPORATED, Plaintiff - Appellee v. HENRY SCHEIN, INCORPORATED; Danaher Corporation; Instrumentarium Dental, Incorporation; Dental Equipment, L.L.C.; Kavo Dental Technologies, L.L.C.; Dental Imaging Technologies, Corporation, Defendants - Appellants"},"name_abbreviation":{"kind":"string","value":"Archer and White Sales, Inc. v. Henry Schein, Inco"},"decision_date":{"kind":"string","value":"2019-08-14"},"docket_number":{"kind":"string","value":"16-41674"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Higginbotham, Graves, Higginson\", \"parties\": \"\", \"opinions\": [{\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 16-41674 Document: 00515076566 Page: 1 Date Filed: 08/14/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 16-41674 August 14, 2019\\n Lyle W. Cayce\\nARCHER AND WHITE SALES, INCORPORATED, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nHENRY SCHEIN, INCORPORATED; DANAHER CORPORATION;\\nINSTRUMENTARIUM DENTAL, INCORPORATION; DENTAL\\nEQUIPMENT, L.L.C.; KAVO DENTAL TECHNOLOGIES, L.L.C.; DENTAL\\nIMAGING TECHNOLOGIES, CORPORATION,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Eastern District of Texas\\n\\n\\n ON REMAND FROM THE UNITED STATES SUPREME COURT\\n\\nBefore HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n In light of the Supreme Court’s decision, we consider anew the question\\nof whether the parties in this dispute delegated the threshold arbitrability\\ndetermination to an arbitrator. After being sued for antitrust violations,\\ndefendants in this suit sought to enforce an arbitration agreement. Initially,\\nthe magistrate judge granted a motion to compel arbitration, concluding that\\nthe question of arbitrability of the claims itself belonged to an arbitrator. The\\ndistrict court disagreed, holding that the arbitrability question was one for the\\n\\f Case: 16-41674 Document: 00515076566 Page: 2 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\ncourts. This panel affirmed. 1 We determined that we need not reach the issue\\nof whether the arbitration provision delegated the issue of arbitrability to an\\narbitrator because of a then-established narrow exception: where an assertion\\nof arbitrability was “wholly groundless,” a court was not required to submit the\\nissue of arbitrability to an arbitrator. Determining defendants’ arguments for\\narbitrability were wholly groundless, we affirmed the district court’s holding\\nthat the claims were not arbitrable.\\n The Supreme Court reversed, holding that the “wholly groundless”\\nexception was inconsistent with the Federal Arbitration Act. 2 The Court\\ndeclined to opine on whether the contract in this case in fact delegated the\\nthreshold arbitrability question to an arbitrator, remanding for this court to\\nmake that determination in the first instance. It reminded that “courts ‘should\\nnot assume that the parties agreed to arbitrate arbitrability unless there is\\nclear and unmistakable evidence that they did so.’” 3 Tasked with interpreting\\nthe arbitration clause anew, we conclude that the parties have not clearly and\\nunmistakably delegated the question of arbitrability to an arbitrator.\\nAccepting that the district court had the power to decide arbitrability, we now\\nhold that the district court correctly determined that this case is not subject to\\nthe arbitration clause and affirm.\\n I.\\n The origins of this dispute are well-known; the complaint in this case\\nwas filed nearly seven years ago. 4 Plaintiff-Appellee Archer and White Sales,\\nInc. is a family-owned company that distributes, sells, and services dental\\nequipment. It brought this antitrust suit against Defendant-Appellants Henry\\n\\n\\n 1 Archer & White Sales, Inc. v. Henry Schein, Inc., 878 F.3d 488 (2017), rev’d, 139 S.\\nCt. 524 (2019).\\n 2 Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 528 (2019).\\n 3 Id. at 531 (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).\\n 4 Id. at 528–29; Archer & White, 878 F.3d at 491.\\n\\n 2\\n\\f Case: 16-41674 Document: 00515076566 Page: 3 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nSchein, Inc., Danaher Corporation, and a number of subsidiaries who\\ndistribute and manufacture dental equipment. Archer claims that defendants\\nentered into an anticompetitive agreement to restrict Archer’s sales and to\\nboycott Archer. Archer’s complaint alleges violations of federal and Texas\\nantitrust law and seeks money damages and injunctive relief.\\n The contract between Archer and Pelton and Crane, one of the\\ndefendant’s predecessors-in-interest, (the “Dealer Agreement”) contains an\\narbitration clause that is at the heart of this dispute. It provides:\\n Disputes. This Agreement shall be governed by the\\n laws of the State of North Carolina. Any dispute\\n arising under or related to this Agreement (except for\\n actions seeking injunctive relief and disputes related\\n to trademarks, trade secrets, or other intellectual\\n property of Pelton & Crane), shall be resolved by\\n binding arbitration in accordance with the arbitration\\n rules of the American Arbitration Association [(AAA)].\\n The place of arbitration shall be in Charlotte, North\\n Carolina.\\n\\nAfter the case was referred to a magistrate judge, defendants invoked the\\nFederal Arbitration Act and moved to compel arbitration. Archer opposed that\\nmotion, arguing that its complaint sought injunctive relief and the arbitration\\nclause explicitly excluded actions seeking such relief.\\n The magistrate judge granted the motion, determining that the\\narbitrability question should be left to an arbitrator because the Dealer\\nAgreement incorporated the AAA rules and there was at least a “plausible\\nconstruction” that would compel arbitration. Three years later, the district\\ncourt vacated that order and held that the court could decide the threshold\\narbitrability question, reasoning that this action fell squarely within the\\narbitration clause’s express exclusion of actions seeking injunctive relief.\\n\\n\\n\\n 3\\n\\f Case: 16-41674 Document: 00515076566 Page: 4 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\n We affirmed. Relying on an exception then operative in at least four\\ncircuits, 5 we concluded that defendants’ argument for arbitration was wholly\\ngroundless. In our view, there was “no plausible argument that the arbitration\\nclause” applied to an action seeking injunctive relief. 6 Applying our precedent\\nin Douglas v. Regions Bank, 7 we determined that because the assertion of\\narbitrability was implausible, the threshold arbitrability question should be\\ndecided by the district court. 8 The Supreme Court reversed, eliminating that\\nexception and abrogating Douglas. Relying on the text of the Federal\\nArbitration Act, the Supreme Court held that if a “contract delegates the\\narbitrability question to an arbitrator, a court may not override the contract.” 9\\nThe Court reaffirmed its holding in First Options, that “parties may delegate\\nthreshold arbitrability questions to the arbitrator, so long as the parties’\\nagreement does so by ‘clear and unmistakable’ evidence.” 10 Sending the case\\nback to us, the Court instructed this court to determine whether clear and\\nunmistakable evidence of the parties’ delegation exists here. 11\\n II.\\n We review a ruling on a motion to compel arbitration de novo. 12 Our\\ninquiry proceeds in two steps. The first is a matter of contract formation—\\n“whether the parties entered into any arbitration agreement at all.” 13 Next we\\nturn to the question of contract interpretation and ask whether “this claim is\\n\\n\\n 5 See Henry Schein, 139 S. Ct. at 528–29 (collecting cases from the Fourth, Fifth, Sixth,\\nand Federal Circuits applying the exception).\\n 6 Archer, 878 F.3d at 497.\\n 7 757 F.3d 460 (2014).\\n 8 Archer, 878 F.3d at 497.\\n 9 Henry Schein, 139 S. Ct. at 529.\\n 10 Id. at 530 (quoting First Options, 514 U.S. at 944).\\n 11 While both parties read the tea leaves in the questions asked by the Justices at oral\\n\\nargument, attempting to shepherd them to support their own positions, the Court declined\\nto decide whether this agreement in fact delegated the arbitrability question.\\n 12 Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 201 (5th Cir. 2012).\\n 13 Id.\\n\\n 4\\n\\f Case: 16-41674 Document: 00515076566 Page: 5 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\ncovered by the arbitration agreement.” 14 While ordinarily both steps are\\nquestions for the court, 15 the parties can enter into an arbitration agreement\\nthat delegates to the arbitrator the power to decide whether a particular claim\\nis arbitrable. 16 The Supreme Court has repeatedly made clear that “parties can\\nagree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the\\nparties have agreed to arbitrate or whether their agreement covers a particular\\ncontroversy.” 17\\n When considering whether there was a valid delegation, “the court’s\\nanalysis is limited.” 18 As always, we ask if the parties entered into a valid\\nagreement. If they did, we turn to the delegation clause and ask “whether the\\npurported delegation clause is in fact a delegation clause—that is, if it evinces\\nan intent to have the arbitrator decide whether a given claim must be\\narbitrated.” 19 When determining that intent, “[c]ourts should not assume that\\nthe parties agreed to arbitrate arbitrability unless there is ‘clear and\\nunmistakable’ evidence that they did so.” 20 If there is a valid delegation, the\\ncourt must grant the motion to compel. 21\\n The parties agree that there is a valid arbitration clause. With respect\\nto delegation, the parties’ arguments on remand sing a familiar tune. Archer\\ncontends that there is no clear and unmistakable evidence that the parties\\ndelegated arbitrability disputes to an arbitrator. The way the agreement is\\n\\n\\n\\n 14 Id.\\n 15 Id. (citing Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 214 (5th Cir. 2003)).\\n 16 Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002).\\n 17 Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68–69 (2010) (citing Howsam, 537\\n\\nU.S. at 83–85).\\n 18 Kubala, 830 F.3d at 202.\\n 19 Id.\\n 20 First Options, 514 U.S. at 944 (internal citation and alterations omitted).\\n 21 Kubala, 830 F.3d at 202. Of course, Kubala’s statement that “the motion to compel\\n\\narbitration should be granted in almost all cases”—where the argument for arbitration was\\nnot wholly groundless—should now be read without the “almost.”\\n 5\\n\\f Case: 16-41674 Document: 00515076566 Page: 6 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nwritten, Archer asserts that the AAA rules (and resulting delegation) only\\napply to disputes that fall outside of the arbitration clause’s carve-out for\\nactions seeking injunctive relief. Under their reading, if a case falls within the\\ncarve-out, the agreement does not incorporate the AAA rules and the gateway\\narbitrability question is not delegated to an arbitrator. On the other hand,\\ndefendants argue that the agreement’s incorporation of the AAA rules ends the\\ninquiry. They maintain that the carve-out for actions seeking injunctive relief\\ndoes not trump the parties’ delegation. Defendants warn that to read the\\ncontract as Archer suggests would require the court to make a merits\\ndetermination about the scope of the carve-out—whether this is indeed an\\naction seeing injunctive relief—to answer the delegation question, precisely\\nthe category of inquiries a court is precluded from making in answering the\\ndelegation question.\\n “Unless the parties clearly and unmistakably provide otherwise, the\\nquestion of whether the parties agreed to arbitrate is to be decided by the court,\\nnot the arbitrator.” 22 A contract need not contain an express delegation clause\\nto meet this standard. As we held in Petrofac, an arbitration agreement that\\nincorporates the AAA Rules “presents clear and unmistakable evidence that\\nthe parties agreed to arbitrate arbitrability.” 23 Under AAA Rule 7(a), “[t]he\\narbitrator shall have the power to rule on his or her own jurisdiction, including\\nany objections with respect to the existence, scope, or validity of the arbitration\\nagreement or to the arbitrability of any claim or counterclaim.” 24\\n It is undisputed that the Dealer Agreement incorporates the AAA rules,\\ndelegating the threshold arbitrability inquiry to the arbitrator for at least some\\n\\n\\n 22 AT&T Technologies, Inc. v. Commc’n Workers of Am., 475 U.S. 643, 649 (1986).\\n 23 Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th\\nCir. 2012).\\n 24 AM. ARBITRATION ASS’N, COMMERCIAL ARBITRATION RULES AND MEDICATION\\n\\nPROCEDURES 13 (2013), https://www.adr.org/sites/default/files/Commercial%20Rules.pdf.\\n 6\\n\\f Case: 16-41674 Document: 00515076566 Page: 7 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\ncategory of cases. The parties dispute the relationship of the carve-out clause—\\nexempting actions seeking injunctive relief—and the incorporation of the AAA\\nrules. The agreement states that “[a]ny dispute arising under or related to this\\nAgreement (except for actions seeking injunctive relief and disputes related to\\ntrademarks, trade secrets, or other intellectual property of [the predecessor]),\\nshall be resolved by binding arbitration in accordance with the arbitration rules\\nof the American Arbitration Association.”\\n The agreement in Petrofac explicitly covered “all claims and disputes,”\\ncontaining no carve-out provision. 25 We have previously applied Petrofac to\\narbitration provisions that do contain carve-out provisions. In Crawford, we\\nconsidered an arbitration agreement that incorporated the AAA Rules and also\\ncontained a carve-out that nothing in the arbitration provision “shall prevent\\neither party from seeking injunctive relief for breach of th[e Agreement].” 26\\nWithout specifically discussing the carve-out, we held that the Crawford\\nagreement’s incorporation of the AAA rules was “clear and unmistakable\\nevidence that the parties to the [] Agreement agreed to arbitrate\\n\\n\\n\\n\\n 25 Petrofac, 687 F.3d at 674.\\n 26 Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 256 (5th Cir.\\n2014). In that case, the Provider Agreement read as follows:\\n Any and all disputes in connection with or arising out of the Provider\\n Agreement by the parties will be exclusively settled by arbitration before a\\n single arbitrator in accordance with the Rules of the American Arbitration\\n Association. The arbitrator must follow the rule of Law, and may only award\\n remedies provided for in the Provider Agreement . . . . Any such arbitration\\n must be conducted in Scottsdale, Arizona, and Provider agrees to such\\n jurisdiction, unless otherwise agreed to by the parties in writing. The expenses\\n of arbitration, including reasonable attorney's fees, will be paid for by the party\\n against whom the award of the arbitrator is rendered . . . . Arbitration shall be\\n the exclusive and final remedy for any dispute between the parties in\\n connection with or arising out of the Provider Agreement; provided, however,\\n that nothing in this provision shall prevent either party from seeking\\n injunctive relief for breach of this Provider Agreement in any state or federal\\n court of law . . . .\\n 7\\n\\f Case: 16-41674 Document: 00515076566 Page: 8 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\narbitrability.” 27 Under the terms of that agreement, the gateway arbitrability\\nquestion was delegated to the arbitrator. The Ninth Circuit considered a\\nsimilar agreement in Oracle Am., Inc. v. Myriad Group A.G. 28 The arbitration\\nclause adopted arbitration rules delegating arbitrability issues to the\\narbitrator and contained a carve-out for certain intellectual property and\\nlicensing claims. 29 Because the claims carved-out by that agreement “ar[ose]\\nout of or relat[ed] to” the Source License, and the agreement explicitly provided\\nthat any claim arising out of the Source License was subject to arbitration, the\\nNinth Circuit held that Oracle’s carve-out argument “conflate[ed] the scope of\\nthe arbitration clause . . . with the question of who decides arbitrability.” 30\\n The Second Circuit has also considered an arbitration clause that\\nincorporated the AAA rules and exempted certain claims from arbitration. 31\\n\\n\\n\\n 27 Id. at 263.\\n 28 724 F.3d 1069, 1072–75 (9th Cir. 2013).\\n 29 The agreement at issue stated, in relevant part:\\n\\n Any dispute arising out of or relating to this License shall be finally settled by\\n arbitration as set out herein, except that either party may bring any action, in\\n a court of competent jurisdiction (which jurisdiction shall be exclusive), with\\n respect to any dispute relating to such party’s Intellectual Property Rights or\\n with respect to Your compliance with the TCK license. Arbitration shall be\\n administered: (i) by the American Arbitration Association (AAA), (ii) in\\n accordance with the rules of the United Nations Commission on International\\n Trade Law (UNCITRAL) (the “Rules”) in effect at the time of arbitration as\\n modified herein; and (iii) the arbitrator will apply the substantive laws of\\n California and United States. Judgment upon the award rendered by the\\n arbitrator may be entered in any court having jurisdiction to enforce such\\n award.\\nId. at 1071.\\n 30 Oracle, 724 F.3d at 1076. The clause in Oracle provided that “any claim arising out\\n\\nof the Source License shall be settled by arbitration” but exempted “any dispute relating to\\nsuch party’s Intellectual Property Rights or with respect to [Myriad’s] compliance with the\\nTCK license.” Id. at 1075–76. The court noted that the issue with Oracle’s carve-out argument\\nwas that the two categories of exempted claims by definition were claims arising out of or\\nrelating to the Source License, which were explicitly subject to arbitration. Id. at 1076. No\\nsuch circularity exists in the contract at issue here.\\n 31 NASDAQ OMX Grp., Inc. v. UBS Securities, LLC, 770 F.3d 1010 (2d Cir. 2014).\\n\\nThat agreement provided in relevant part:\\n 8\\n\\f Case: 16-41674 Document: 00515076566 Page: 9 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nThe court noted that it had “found the ‘clear and unmistakable’ provision\\nsatisfied where a broad arbitration clause expressly commits all disputes to\\narbitration, concluding that all disputes necessarily includes disputes as to\\narbitrability.” 32 However, the parties in NASDAQ had not clearly and\\nunmistakably delegated arbitrability “where a broad arbitration clause is\\nsubject to a qualifying provision that at least arguably covers the present\\ndispute.” 33 Because there was ambiguity as to whether the parties intended to\\nhave arbitrability questions decided by an arbitrator—because the dispute\\narguably fell within the carve-out—the court held the arbitrability question\\nwas for the court to decide. 34\\n Defendants urge that Crawford controls and the only difference between\\nthat arbitration agreement and the one here is syntax—the ordering of words.\\nBut that is precisely the point—the placement of the carve-out here is\\ndispositive. We cannot re-write the words of the contract. The most natural\\nreading of the arbitration clause at issue here states that any dispute, except\\nactions seeking injunctive relief, shall be resolved in arbitration in accordance\\nwith the AAA rules. The plain language incorporates the AAA rules—and\\ntherefore delegates arbitrability—for all disputes except those under the carve-\\n\\n\\n\\n\\n A. Except as may be provided in the NASDAQ OMX Requirements, all claims,\\n disputes, controversies, and other matters in question between the Parties to this\\n Agreement and the Parties’ employees, directors, agents and associated persons\\n arising out of, or relating to this Agreement, or to the breach hereof, shall be settled\\n by final binding arbitration in accordance with this Agreement and the following\\n procedure or such other procedures as may be mutually agreed upon by the Parties.\\n B. Except as otherwise provided herein or by agreement of the Parties, any arbitration\\n proceeding shall be conducted in accordance with the Commercial Arbitration Rules\\n of the American Arbitration Association or in accordance with such other rules and\\n procedures as are agreed to by the Parties.\\nId. at 1016.\\n 32 Id. at 1031.\\n 33 Id.\\n 34 Id. at 1032.\\n\\n 9\\n\\f Case: 16-41674 Document: 00515076566 Page: 10 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nout. Given that carve-out, we cannot say that the Dealer Agreement evinces a\\n“clear and unmistakable” intent to delegate arbitrability.\\n We are mindful of the Court’s reminder that “[w]hen the parties’ contract\\ndelegates the arbitrability question to an arbitrator, the courts must respect\\nthe parties’ decision as embodied in the contract.” 35 But we must also heed its\\nwarning that “courts ‘should not assume that the parties agreed to arbitrate\\narbitrability unless there is clear and unmistakable evidence that they did\\nso.’” 36 The parties could have unambiguously delegated this question, but they\\ndid not, and we are not empowered to re-write their agreement.\\n III.\\n In addition to disputing whether an arbitrator must decide the gateway\\nquestion of arbitrability, the parties disagree about whether the underlying\\ndispute is arbitrable at all. Accepting that the district court had the power to\\ndecide arbitrability, we next examine whether it correctly determined that the\\ninstant action is not subject to the arbitration clause. We do so against the\\nbackdrop of a strong presumption in favor of arbitration, 37 yet we also remain\\nmindful of the fact that the FAA “does not require parties to arbitrate when\\nthey have not agreed to do so, nor does it prevent parties who do agree to\\narbitrate from excluding certain claims from the scope of their arbitration\\nagreement.” 38\\n The magistrate judge found that while “[o]n the most superficial level,\\nthis lawsuit is clearly an action seeking injunctive relief since it does seek that\\n\\n\\n\\n\\n 35 Henry Schein, Inc., 139 S. Ct. at 531.\\n 36 Id. (quoting First Options, 514 U.S. at 944).\\n 37 See, e.g., Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25\\n\\n(1983) (“[A]s a matter of federal law, any doubts concerning the scope of arbitrable issues\\nshould be resolved in favor of arbitration . . . .”).\\n 38 Volt Info. Scis., Inc. v. Bd. Of Trustees of Leland Stanford Junior Univ., 489 U.S.\\n\\n468, 478 (1989) (internal citations omitted).\\n 10\\n\\f Case: 16-41674 Document: 00515076566 Page: 11 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nrelief,” there was also “a plausible construction [of the Dealer Agreement]\\ncalling for arbitration.” The magistrate judge read the contract to leave open\\n“the question of whether the exception for actions seeking injunctive relief\\nshould be limited to actions for an injunction in aid of arbitration or to enforce\\nan arbitrator’s award.”\\n The district court, on the other hand, found that the carve-out for\\n“‘actions seeking injunctive relief’ is clear on its face—any action seeking\\ninjunctive relief is excluded from mandatory arbitration.” Thus, the provision’s\\nplain language includes all actions seeking injunctive relief, not a more limited\\ncategory of cases. 39 In so holding, the district court pointed out that the carve-\\nout clause is not part of the AAA’s suggested language, and that “[s]uch an\\nintentional drafting effort . . . is worthy of the court’s notice.” The court declined\\nto “re-write the terms of the Parties’ agreement to accommodate a party—\\nnotably the party that drafted the agreement—that could have negotiated for\\nmore precise language,” and held that the arguments for arbitrability were\\n“wholly without merit based on the plain language of the arbitration clause\\nitself.”\\n Defendants urge that, where an arbitration clause contains a carve-out\\nfor injunctive relief and one party files a complaint seeking both injunctive\\nrelief and damages, the court should read the carve-out to permit injunctive\\nrelief only as a preliminary matter to preserve the status quo pending\\narbitration or on a permanent basis after the plaintiff secures an arbitration\\naward in its favor. They suggest that the court must send the damages clause\\nto arbitration, even if it results in piecemeal litigation. In their view, that\\n\\n\\n\\n 39 The district court observed, “no textual basis exists for reading the phrase ‘actions\\nseeking injunctive relief’ as ‘actions seeking injunctive relief if such injunctions are in aid of\\narbitration.’ Further, the clause does not limit the exclusion to actions seeking ‘only’\\ninjunctive relief, and the Court also declines to read that limitation into the document.”\\n 11\\n\\f Case: 16-41674 Document: 00515076566 Page: 12 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nreading of the clause preserves the parties’ right to arbitrate the damages\\nclaims while preserving the court’s role in any injunctive proceedings. They\\nwarn that Archer’s interpretation allows a party to “tack on” a vague request\\nfor injunctive relief to evade arbitration.\\n Archer counters that the plain language of the clause makes clear that\\nthe parties did not agree to arbitrate actions that include a request for\\ninjunctive relief—therefore there is no plausible argument that the arbitration\\nclause applies. Archer emphasizes that arbitration agreements are as\\nenforceable as other contracts, but not more so, and the court cannot reach\\nbeyond the plain and unambiguous language in the agreement.\\n We note first that the arbitration clause creates a carve-out for “actions\\nseeking injunctive relief.” It does not limit the exclusion to “actions seeking\\nonly injunctive relief,” nor “actions for injunction in aid of an arbitrator’s\\naward.” Nor does it limit the carve-out to claims for injunctive relief. Such\\nreadings find no footing within the four corners of the contract. Under North\\nCarolina law, “[w]hen the language of a contract is clear and unambiguous,\\neffect must be given to its terms, and the court, under the guise of construction,\\ncannot reject what the parties inserted or insert what the parties elected to\\nomit.” 40 The mere fact that the arbitration clause permits Archer to avoid\\narbitration by adding a claim for injunctive relief does not change the clause’s\\nplain meaning. “While ambiguities in the language of the agreement should be\\nresolved in favor of arbitration, we do not override the clear intent of the\\nparties, or reach a result inconsistent with the plain text of the contract, simply\\n\\n\\n\\n\\n 40 Procar II, Inc. v. Dennis, 721 S.E.2d 369, 371 (N.C. Ct. App. 2012) (quoting Taylor\\nv. Gibbs, 268 N.C. 363, 365, (1966)).\\n 12\\n\\f Case: 16-41674 Document: 00515076566 Page: 13 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nbecause the policy favoring arbitration is implicated.” 41 Fundamentally,\\ndefendants ask us to rewrite the unambiguous arbitration clause. We cannot.\\n Defendants urge that this reading would lead to absurd results, where\\none party could unilaterally evade the agreement to arbitrate with an\\nattenuated request for injunctive relief. This argument overreaches. Even if\\nwe re-wrote the carve-out clause to apply only to actions seeking significant\\ninjunctive relief—which we cannot—this particular action would still fall\\nwithin that exception. Archer’s complaint alleges multiple continuing\\nviolations of federal and state antitrust laws. 42 As the district court correctly\\nnoted, the proper vehicle to argue Archer failed to state a claim for relief is a\\nmotion under Rule 12. We cannot address the underlying merits of Archer’s\\nclaim at this stage. It is enough to note that the current action is indeed an\\n“action seeking injunctive relief.”\\n\\n\\n\\n\\n 41 E.E.O.C. v. Waffle House, 534 U.S. 279, 294 (2002) (emphasis added) (internal\\ncitations omitted).\\n 42 In their initial briefing to this court and in their supplemental brief on remand,\\n\\ndefendants contend that Archer is no longer entitled to injunctive relief because, during the\\npendency of this litigation, their contractual relationship with Archer ended. In support of\\nthis proposition, defendants cite cases where this court has held that plaintiffs are no longer\\nentitled to injunctive relief. In Hendricks, the court held that enjoining a plaintiff’s former\\nemployer from future ERISA violations was not appropriate. Hendricks v. UBS Fin. Servs.,\\nInc., 546 F. App’x 514, 520 (5th Cir. 2013) (per curiam). In Glanville, a district court found\\nthe plaintiffs had no standing to pursue a claim for declaratory and injunctive relief based on\\ntheir purported misclassification as independent contractors because they no longer had any\\nemployment relationship with the defendants and thus could not allege future harm.\\nGlanville v. Dupar, Inc., 727 F.Supp.2d 596, 602 (S.D. Tex. 2010). In its initial brief, Archer\\nresponded that these cases are inapposite because they do not involve antitrust violations.\\nArcher notes that other circuits have upheld injunctive relief in private antitrust actions even\\nwhere the specific conspiracy alleged has ended. See Wilk v. Am. Med. Ass’n, 895 F.2d 352,\\n378 (7th Cir. 1990) (affirming the grant of an injunction aimed at remedying lasting effects\\nof an illegal boycott). We need not decide this question here, as the arbitrability question\\nturns only on whether the existing action as a whole constitutes an “action seeking injunctive\\nrelief.”\\n 13\\n\\f Case: 16-41674 Document: 00515076566 Page: 14 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\n IV.\\n Because this action is not subject to mandatory arbitration, we do not\\nreach Archer’s alternative argument that third parties to the arbitration clause\\ncannot enforce such an arbitration clause. We affirm the district court’s order\\ndenying defendants’ motions to compel arbitration.\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4425650/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648397/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: ARCHER AND WHITE SALES, INCORPORATED, Plaintiff - Appellee v. HENRY SCHEIN, INCORPORATED; Danaher Corporation; Instrumentarium Dental, Incorporation; Dental Equipment, L.L.C.; Kavo Dental Technologies, L.L.C.; Dental Imaging Technologies, Corporation, Defendants - Appellants\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-41674 Document: 00515076566 Page: 1 Date Filed: 08/14/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 16-41674 August 14, 2019\n Lyle W. Cayce\nARCHER AND WHITE SALES, INCORPORATED, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nHENRY SCHEIN, INCORPORATED; DANAHER CORPORATION;\nINSTRUMENTARIUM DENTAL, INCORPORATION; DENTAL\nEQUIPMENT, L.L.C.; KAVO DENTAL TECHNOLOGIES, L.L.C.; DENTAL\nIMAGING TECHNOLOGIES, CORPORATION,\n\n Defendants - Appellants\n\n\n\n\n Appeals from the United States District Court\n for the Eastern District of Texas\n\n\n ON REMAND FROM THE UNITED STATES SUPREME COURT\n\nBefore HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\n In light of the Supreme Court’s decision, we consider anew the question\nof whether the parties in this dispute delegated the threshold arbitrability\ndetermination to an arbitrator. After being sued for antitrust violations,\ndefendants in this suit sought to enforce an arbitration agreement. Initially,\nthe magistrate judge granted a motion to compel arbitration, concluding that\nthe question of arbitrability of the claims itself belonged to an arbitrator. The\ndistrict court disagreed, holding that the arbitrability question was one for the\n\f Case: 16-41674 Document: 00515076566 Page: 2 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\ncourts. This panel affirmed. 1 We determined that we need not reach the issue\nof whether the arbitration provision delegated the issue of arbitrability to an\narbitrator because of a then-established narrow exception: where an assertion\nof arbitrability was “wholly groundless,” a court was not required to submit the\nissue of arbitrability to an arbitrator. Determining defendants’ arguments for\narbitrability were wholly groundless, we affirmed the district court’s holding\nthat the claims were not arbitrable.\n The Supreme Court reversed, holding that the “wholly groundless”\nexception was inconsistent with the Federal Arbitration Act. 2 The Court\ndeclined to opine on whether the contract in this case in fact delegated the\nthreshold arbitrability question to an arbitrator, remanding for this court to\nmake that determination in the first instance. It reminded that “courts ‘should\nnot assume that the parties agreed to arbitrate arbitrability unless there is\nclear and unmistakable evidence that they did so.’” 3 Tasked with interpreting\nthe arbitration clause anew, we conclude that the parties have not clearly and\nunmistakably delegated the question of arbitrability to an arbitrator.\nAccepting that the district court had the power to decide arbitrability, we now\nhold that the district court correctly determined that this case is not subject to\nthe arbitration clause and affirm.\n I.\n The origins of this dispute are well-known; the complaint in this case\nwas filed nearly seven years ago. 4 Plaintiff-Appellee Archer and White Sales,\nInc. is a family-owned company that distributes, sells, and services dental\nequipment. It brought this antitrust suit against Defendant-Appellants Henry\n\n\n 1 Archer & White Sales, Inc. v. Henry Schein, Inc., 878 F.3d 488 (2017), rev’d, 139 S.\nCt. 524 (2019).\n 2 Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 528 (2019).\n 3 Id. at 531 (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).\n 4 Id. at 528–29; Archer & White, 878 F.3d at 491.\n\n 2\n\f Case: 16-41674 Document: 00515076566 Page: 3 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\nSchein, Inc., Danaher Corporation, and a number of subsidiaries who\ndistribute and manufacture dental equipment. Archer claims that defendants\nentered into an anticompetitive agreement to restrict Archer’s sales and to\nboycott Archer. Archer’s complaint alleges violations of federal and Texas\nantitrust law and seeks money damages and injunctive relief.\n The contract between Archer and Pelton and Crane, one of the\ndefendant’s predecessors-in-interest, (the “Dealer Agreement”) contains an\narbitration clause that is at the heart of this dispute. It provides:\n Disputes. This Agreement shall be governed by the\n laws of the State of North Carolina. Any dispute\n arising under or related to this Agreement (except for\n actions seeking injunctive relief and disputes related\n to trademarks, trade secrets, or other intellectual\n property of Pelton & Crane), shall be resolved by\n binding arbitration in accordance with the arbitration\n rules of the American Arbitration Association [(AAA)].\n The place of arbitration shall be in Charlotte, North\n Carolina.\n\nAfter the case was referred to a magistrate judge, defendants invoked the\nFederal Arbitration Act and moved to compel arbitration. Archer opposed that\nmotion, arguing that its complaint sought injunctive relief and the arbitration\nclause explicitly excluded actions seeking such relief.\n The magistrate judge granted the motion, determining that the\narbitrability question should be left to an arbitrator because the Dealer\nAgreement incorporated the AAA rules and there was at least a “plausible\nconstruction” that would compel arbitration. Three years later, the district\ncourt vacated that order and held that the court could decide the threshold\narbitrability question, reasoning that this action fell squarely within the\narbitration clause’s express exclusion of actions seeking injunctive relief.\n\n\n\n 3\n\f Case: 16-41674 Document: 00515076566 Page: 4 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\n We affirmed. Relying on an exception then operative in at least four\ncircuits, 5 we concluded that defendants’ argument for arbitration was wholly\ngroundless. In our view, there was “no plausible argument that the arbitration\nclause” applied to an action seeking injunctive relief. 6 Applying our precedent\nin Douglas v. Regions Bank, 7 we determined that because the assertion of\narbitrability was implausible, the threshold arbitrability question should be\ndecided by the district court. 8 The Supreme Court reversed, eliminating that\nexception and abrogating Douglas. Relying on the text of the Federal\nArbitration Act, the Supreme Court held that if a “contract delegates the\narbitrability question to an arbitrator, a court may not override the contract.” 9\nThe Court reaffirmed its holding in First Options, that “parties may delegate\nthreshold arbitrability questions to the arbitrator, so long as the parties’\nagreement does so by ‘clear and unmistakable’ evidence.” 10 Sending the case\nback to us, the Court instructed this court to determine whether clear and\nunmistakable evidence of the parties’ delegation exists here. 11\n II.\n We review a ruling on a motion to compel arbitration de novo. 12 Our\ninquiry proceeds in two steps. The first is a matter of contract formation—\n“whether the parties entered into any arbitration agreement at all.” 13 Next we\nturn to the question of contract interpretation and ask whether “this claim is\n\n\n 5 See Henry Schein, 139 S. Ct. at 528–29 (collecting cases from the Fourth, Fifth, Sixth,\nand Federal Circuits applying the exception).\n 6 Archer, 878 F.3d at 497.\n 7 757 F.3d 460 (2014).\n 8 Archer, 878 F.3d at 497.\n 9 Henry Schein, 139 S. Ct. at 529.\n 10 Id. at 530 (quoting First Options, 514 U.S. at 944).\n 11 While both parties read the tea leaves in the questions asked by the Justices at oral\n\nargument, attempting to shepherd them to support their own positions, the Court declined\nto decide whether this agreement in fact delegated the arbitrability question.\n 12 Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 201 (5th Cir. 2012).\n 13 Id.\n\n 4\n\f Case: 16-41674 Document: 00515076566 Page: 5 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\ncovered by the arbitration agreement.” 14 While ordinarily both steps are\nquestions for the court, 15 the parties can enter into an arbitration agreement\nthat delegates to the arbitrator the power to decide whether a particular claim\nis arbitrable. 16 The Supreme Court has repeatedly made clear that “parties can\nagree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the\nparties have agreed to arbitrate or whether their agreement covers a particular\ncontroversy.” 17\n When considering whether there was a valid delegation, “the court’s\nanalysis is limited.” 18 As always, we ask if the parties entered into a valid\nagreement. If they did, we turn to the delegation clause and ask “whether the\npurported delegation clause is in fact a delegation clause—that is, if it evinces\nan intent to have the arbitrator decide whether a given claim must be\narbitrated.” 19 When determining that intent, “[c]ourts should not assume that\nthe parties agreed to arbitrate arbitrability unless there is ‘clear and\nunmistakable’ evidence that they did so.” 20 If there is a valid delegation, the\ncourt must grant the motion to compel. 21\n The parties agree that there is a valid arbitration clause. With respect\nto delegation, the parties’ arguments on remand sing a familiar tune. Archer\ncontends that there is no clear and unmistakable evidence that the parties\ndelegated arbitrability disputes to an arbitrator. The way the agreement is\n\n\n\n 14 Id.\n 15 Id. (citing Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 214 (5th Cir. 2003)).\n 16 Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002).\n 17 Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68–69 (2010) (citing Howsam, 537\n\nU.S. at 83–85).\n 18 Kubala, 830 F.3d at 202.\n 19 Id.\n 20 First Options, 514 U.S. at 944 (internal citation and alterations omitted).\n 21 Kubala, 830 F.3d at 202. Of course, Kubala’s statement that “the motion to compel\n\narbitration should be granted in almost all cases”—where the argument for arbitration was\nnot wholly groundless—should now be read without the “almost.”\n 5\n\f Case: 16-41674 Document: 00515076566 Page: 6 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\nwritten, Archer asserts that the AAA rules (and resulting delegation) only\napply to disputes that fall outside of the arbitration clause’s carve-out for\nactions seeking injunctive relief. Under their reading, if a case falls within the\ncarve-out, the agreement does not incorporate the AAA rules and the gateway\narbitrability question is not delegated to an arbitrator. On the other hand,\ndefendants argue that the agreement’s incorporation of the AAA rules ends the\ninquiry. They maintain that the carve-out for actions seeking injunctive relief\ndoes not trump the parties’ delegation. Defendants warn that to read the\ncontract as Archer suggests would require the court to make a merits\ndetermination about the scope of the carve-out—whether this is indeed an\naction seeing injunctive relief—to answer the delegation question, precisely\nthe category of inquiries a court is precluded from making in answering the\ndelegation question.\n “Unless the parties clearly and unmistakably provide otherwise, the\nquestion of whether the parties agreed to arbitrate is to be decided by the court,\nnot the arbitrator.” 22 A contract need not contain an express delegation clause\nto meet this standard. As we held in Petrofac, an arbitration agreement that\nincorporates the AAA Rules “presents clear and unmistakable evidence that\nthe parties agreed to arbitrate arbitrability.” 23 Under AAA Rule 7(a), “[t]he\narbitrator shall have the power to rule on his or her own jurisdiction, including\nany objections with respect to the existence, scope, or validity of the arbitration\nagreement or to the arbitrability of any claim or counterclaim.” 24\n It is undisputed that the Dealer Agreement incorporates the AAA rules,\ndelegating the threshold arbitrability inquiry to the arbitrator for at least some\n\n\n 22 AT&T Technologies, Inc. v. Commc’n Workers of Am., 475 U.S. 643, 649 (1986).\n 23 Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th\nCir. 2012).\n 24 AM. ARBITRATION ASS’N, COMMERCIAL ARBITRATION RULES AND MEDICATION\n\nPROCEDURES 13 (2013), https://www.adr.org/sites/default/files/Commercial%20Rules.pdf.\n 6\n\f Case: 16-41674 Document: 00515076566 Page: 7 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\ncategory of cases. The parties dispute the relationship of the carve-out clause—\nexempting actions seeking injunctive relief—and the incorporation of the AAA\nrules. The agreement states that “[a]ny dispute arising under or related to this\nAgreement (except for actions seeking injunctive relief and disputes related to\ntrademarks, trade secrets, or other intellectual property of [the predecessor]),\nshall be resolved by binding arbitration in accordance with the arbitration rules\nof the American Arbitration Association.”\n The agreement in Petrofac explicitly covered “all claims and disputes,”\ncontaining no carve-out provision. 25 We have previously applied Petrofac to\narbitration provisions that do contain carve-out provisions. In Crawford, we\nconsidered an arbitration agreement that incorporated the AAA Rules and also\ncontained a carve-out that nothing in the arbitration provision “shall prevent\neither party from seeking injunctive relief for breach of th[e Agreement].” 26\nWithout specifically discussing the carve-out, we held that the Crawford\nagreement’s incorporation of the AAA rules was “clear and unmistakable\nevidence that the parties to the [] Agreement agreed to arbitrate\n\n\n\n\n 25 Petrofac, 687 F.3d at 674.\n 26 Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 256 (5th Cir.\n2014). In that case, the Provider Agreement read as follows:\n Any and all disputes in connection with or arising out of the Provider\n Agreement by the parties will be exclusively settled by arbitration before a\n single arbitrator in accordance with the Rules of the American Arbitration\n Association. The arbitrator must follow the rule of Law, and may only award\n remedies provided for in the Provider Agreement . . . . Any such arbitration\n must be conducted in Scottsdale, Arizona, and Provider agrees to such\n jurisdiction, unless otherwise agreed to by the parties in writing. The expenses\n of arbitration, including reasonable attorney's fees, will be paid for by the party\n against whom the award of the arbitrator is rendered . . . . Arbitration shall be\n the exclusive and final remedy for any dispute between the parties in\n connection with or arising out of the Provider Agreement; provided, however,\n that nothing in this provision shall prevent either party from seeking\n injunctive relief for breach of this Provider Agreement in any state or federal\n court of law . . . .\n 7\n\f Case: 16-41674 Document: 00515076566 Page: 8 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\narbitrability.” 27 Under the terms of that agreement, the gateway arbitrability\nquestion was delegated to the arbitrator. The Ninth Circuit considered a\nsimilar agreement in Oracle Am., Inc. v. Myriad Group A.G. 28 The arbitration\nclause adopted arbitration rules delegating arbitrability issues to the\narbitrator and contained a carve-out for certain intellectual property and\nlicensing claims. 29 Because the claims carved-out by that agreement “ar[ose]\nout of or relat[ed] to” the Source License, and the agreement explicitly provided\nthat any claim arising out of the Source License was subject to arbitration, the\nNinth Circuit held that Oracle’s carve-out argument “conflate[ed] the scope of\nthe arbitration clause . . . with the question of who decides arbitrability.” 30\n The Second Circuit has also considered an arbitration clause that\nincorporated the AAA rules and exempted certain claims from arbitration. 31\n\n\n\n 27 Id. at 263.\n 28 724 F.3d 1069, 1072–75 (9th Cir. 2013).\n 29 The agreement at issue stated, in relevant part:\n\n Any dispute arising out of or relating to this License shall be finally settled by\n arbitration as set out herein, except that either party may bring any action, in\n a court of competent jurisdiction (which jurisdiction shall be exclusive), with\n respect to any dispute relating to such party’s Intellectual Property Rights or\n with respect to Your compliance with the TCK license. Arbitration shall be\n administered: (i) by the American Arbitration Association (AAA), (ii) in\n accordance with the rules of the United Nations Commission on International\n Trade Law (UNCITRAL) (the “Rules”) in effect at the time of arbitration as\n modified herein; and (iii) the arbitrator will apply the substantive laws of\n California and United States. Judgment upon the award rendered by the\n arbitrator may be entered in any court having jurisdiction to enforce such\n award.\nId. at 1071.\n 30 Oracle, 724 F.3d at 1076. The clause in Oracle provided that “any claim arising out\n\nof the Source License shall be settled by arbitration” but exempted “any dispute relating to\nsuch party’s Intellectual Property Rights or with respect to [Myriad’s] compliance with the\nTCK license.” Id. at 1075–76. The court noted that the issue with Oracle’s carve-out argument\nwas that the two categories of exempted claims by definition were claims arising out of or\nrelating to the Source License, which were explicitly subject to arbitration. Id. at 1076. No\nsuch circularity exists in the contract at issue here.\n 31 NASDAQ OMX Grp., Inc. v. UBS Securities, LLC, 770 F.3d 1010 (2d Cir. 2014).\n\nThat agreement provided in relevant part:\n 8\n\f Case: 16-41674 Document: 00515076566 Page: 9 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\nThe court noted that it had “found the ‘clear and unmistakable’ provision\nsatisfied where a broad arbitration clause expressly commits all disputes to\narbitration, concluding that all disputes necessarily includes disputes as to\narbitrability.” 32 However, the parties in NASDAQ had not clearly and\nunmistakably delegated arbitrability “where a broad arbitration clause is\nsubject to a qualifying provision that at least arguably covers the present\ndispute.” 33 Because there was ambiguity as to whether the parties intended to\nhave arbitrability questions decided by an arbitrator—because the dispute\narguably fell within the carve-out—the court held the arbitrability question\nwas for the court to decide. 34\n Defendants urge that Crawford controls and the only difference between\nthat arbitration agreement and the one here is syntax—the ordering of words.\nBut that is precisely the point—the placement of the carve-out here is\ndispositive. We cannot re-write the words of the contract. The most natural\nreading of the arbitration clause at issue here states that any dispute, except\nactions seeking injunctive relief, shall be resolved in arbitration in accordance\nwith the AAA rules. The plain language incorporates the AAA rules—and\ntherefore delegates arbitrability—for all disputes except those under the carve-\n\n\n\n\n A. Except as may be provided in the NASDAQ OMX Requirements, all claims,\n disputes, controversies, and other matters in question between the Parties to this\n Agreement and the Parties’ employees, directors, agents and associated persons\n arising out of, or relating to this Agreement, or to the breach hereof, shall be settled\n by final binding arbitration in accordance with this Agreement and the following\n procedure or such other procedures as may be mutually agreed upon by the Parties.\n B. Except as otherwise provided herein or by agreement of the Parties, any arbitration\n proceeding shall be conducted in accordance with the Commercial Arbitration Rules\n of the American Arbitration Association or in accordance with such other rules and\n procedures as are agreed to by the Parties.\nId. at 1016.\n 32 Id. at 1031.\n 33 Id.\n 34 Id. at 1032.\n\n 9\n\f Case: 16-41674 Document: 00515076566 Page: 10 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\nout. Given that carve-out, we cannot say that the Dealer Agreement evinces a\n“clear and unmistakable” intent to delegate arbitrability.\n We are mindful of the Court’s reminder that “[w]hen the parties’ contract\ndelegates the arbitrability question to an arbitrator, the courts must respect\nthe parties’ decision as embodied in the contract.” 35 But we must also heed its\nwarning that “courts ‘should not assume that the parties agreed to arbitrate\narbitrability unless there is clear and unmistakable evidence that they did\nso.’” 36 The parties could have unambiguously delegated this question, but they\ndid not, and we are not empowered to re-write their agreement.\n III.\n In addition to disputing whether an arbitrator must decide the gateway\nquestion of arbitrability, the parties disagree about whether the underlying\ndispute is arbitrable at all. Accepting that the district court had the power to\ndecide arbitrability, we next examine whether it correctly determined that the\ninstant action is not subject to the arbitration clause. We do so against the\nbackdrop of a strong presumption in favor of arbitration, 37 yet we also remain\nmindful of the fact that the FAA “does not require parties to arbitrate when\nthey have not agreed to do so, nor does it prevent parties who do agree to\narbitrate from excluding certain claims from the scope of their arbitration\nagreement.” 38\n The magistrate judge found that while “[o]n the most superficial level,\nthis lawsuit is clearly an action seeking injunctive relief since it does seek that\n\n\n\n\n 35 Henry Schein, Inc., 139 S. Ct. at 531.\n 36 Id. (quoting First Options, 514 U.S. at 944).\n 37 See, e.g., Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25\n\n(1983) (“[A]s a matter of federal law, any doubts concerning the scope of arbitrable issues\nshould be resolved in favor of arbitration . . . .”).\n 38 Volt Info. Scis., Inc. v. Bd. Of Trustees of Leland Stanford Junior Univ., 489 U.S.\n\n468, 478 (1989) (internal citations omitted).\n 10\n\f Case: 16-41674 Document: 00515076566 Page: 11 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\nrelief,” there was also “a plausible construction [of the Dealer Agreement]\ncalling for arbitration.” The magistrate judge read the contract to leave open\n“the question of whether the exception for actions seeking injunctive relief\nshould be limited to actions for an injunction in aid of arbitration or to enforce\nan arbitrator’s award.”\n The district court, on the other hand, found that the carve-out for\n“‘actions seeking injunctive relief’ is clear on its face—any action seeking\ninjunctive relief is excluded from mandatory arbitration.” Thus, the provision’s\nplain language includes all actions seeking injunctive relief, not a more limited\ncategory of cases. 39 In so holding, the district court pointed out that the carve-\nout clause is not part of the AAA’s suggested language, and that “[s]uch an\nintentional drafting effort . . . is worthy of the court’s notice.” The court declined\nto “re-write the terms of the Parties’ agreement to accommodate a party—\nnotably the party that drafted the agreement—that could have negotiated for\nmore precise language,” and held that the arguments for arbitrability were\n“wholly without merit based on the plain language of the arbitration clause\nitself.”\n Defendants urge that, where an arbitration clause contains a carve-out\nfor injunctive relief and one party files a complaint seeking both injunctive\nrelief and damages, the court should read the carve-out to permit injunctive\nrelief only as a preliminary matter to preserve the status quo pending\narbitration or on a permanent basis after the plaintiff secures an arbitration\naward in its favor. They suggest that the court must send the damages clause\nto arbitration, even if it results in piecemeal litigation. In their view, that\n\n\n\n 39 The district court observed, “no textual basis exists for reading the phrase ‘actions\nseeking injunctive relief’ as ‘actions seeking injunctive relief if such injunctions are in aid of\narbitration.’ Further, the clause does not limit the exclusion to actions seeking ‘only’\ninjunctive relief, and the Court also declines to read that limitation into the document.”\n 11\n\f Case: 16-41674 Document: 00515076566 Page: 12 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\nreading of the clause preserves the parties’ right to arbitrate the damages\nclaims while preserving the court’s role in any injunctive proceedings. They\nwarn that Archer’s interpretation allows a party to “tack on” a vague request\nfor injunctive relief to evade arbitration.\n Archer counters that the plain language of the clause makes clear that\nthe parties did not agree to arbitrate actions that include a request for\ninjunctive relief—therefore there is no plausible argument that the arbitration\nclause applies. Archer emphasizes that arbitration agreements are as\nenforceable as other contracts, but not more so, and the court cannot reach\nbeyond the plain and unambiguous language in the agreement.\n We note first that the arbitration clause creates a carve-out for “actions\nseeking injunctive relief.” It does not limit the exclusion to “actions seeking\nonly injunctive relief,” nor “actions for injunction in aid of an arbitrator’s\naward.” Nor does it limit the carve-out to claims for injunctive relief. Such\nreadings find no footing within the four corners of the contract. Under North\nCarolina law, “[w]hen the language of a contract is clear and unambiguous,\neffect must be given to its terms, and the court, under the guise of construction,\ncannot reject what the parties inserted or insert what the parties elected to\nomit.” 40 The mere fact that the arbitration clause permits Archer to avoid\narbitration by adding a claim for injunctive relief does not change the clause’s\nplain meaning. “While ambiguities in the language of the agreement should be\nresolved in favor of arbitration, we do not override the clear intent of the\nparties, or reach a result inconsistent with the plain text of the contract, simply\n\n\n\n\n 40 Procar II, Inc. v. Dennis, 721 S.E.2d 369, 371 (N.C. Ct. App. 2012) (quoting Taylor\nv. Gibbs, 268 N.C. 363, 365, (1966)).\n 12\n\f Case: 16-41674 Document: 00515076566 Page: 13 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\nbecause the policy favoring arbitration is implicated.” 41 Fundamentally,\ndefendants ask us to rewrite the unambiguous arbitration clause. We cannot.\n Defendants urge that this reading would lead to absurd results, where\none party could unilaterally evade the agreement to arbitrate with an\nattenuated request for injunctive relief. This argument overreaches. Even if\nwe re-wrote the carve-out clause to apply only to actions seeking significant\ninjunctive relief—which we cannot—this particular action would still fall\nwithin that exception. Archer’s complaint alleges multiple continuing\nviolations of federal and state antitrust laws. 42 As the district court correctly\nnoted, the proper vehicle to argue Archer failed to state a claim for relief is a\nmotion under Rule 12. We cannot address the underlying merits of Archer’s\nclaim at this stage. It is enough to note that the current action is indeed an\n“action seeking injunctive relief.”\n\n\n\n\n 41 E.E.O.C. v. Waffle House, 534 U.S. 279, 294 (2002) (emphasis added) (internal\ncitations omitted).\n 42 In their initial briefing to this court and in their supplemental brief on remand,\n\ndefendants contend that Archer is no longer entitled to injunctive relief because, during the\npendency of this litigation, their contractual relationship with Archer ended. In support of\nthis proposition, defendants cite cases where this court has held that plaintiffs are no longer\nentitled to injunctive relief. In Hendricks, the court held that enjoining a plaintiff’s former\nemployer from future ERISA violations was not appropriate. Hendricks v. UBS Fin. Servs.,\nInc., 546 F. App’x 514, 520 (5th Cir. 2013) (per curiam). In Glanville, a district court found\nthe plaintiffs had no standing to pursue a claim for declaratory and injunctive relief based on\ntheir purported misclassification as independent contractors because they no longer had any\nemployment relationship with the defendants and thus could not allege future harm.\nGlanville v. Dupar, Inc., 727 F.Supp.2d 596, 602 (S.D. Tex. 2010). In its initial brief, Archer\nresponded that these cases are inapposite because they do not involve antitrust violations.\nArcher notes that other circuits have upheld injunctive relief in private antitrust actions even\nwhere the specific conspiracy alleged has ended. See Wilk v. Am. Med. Ass’n, 895 F.2d 352,\n378 (7th Cir. 1990) (affirming the grant of an injunction aimed at remedying lasting effects\nof an illegal boycott). We need not decide this question here, as the arbitrability question\nturns only on whether the existing action as a whole constitutes an “action seeking injunctive\nrelief.”\n 13\n\f Case: 16-41674 Document: 00515076566 Page: 14 Date Filed: 08/14/2019\n\n\n\n No. 16-41674\n IV.\n Because this action is not subject to mandatory arbitration, we do not\nreach Archer’s alternative argument that third parties to the arbitration clause\ncannot enforce such an arbitration clause. We affirm the district court’s order\ndenying defendants’ motions to compel arbitration.\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: ARCHER AND WHITE SALES, INCORPORATED, Plaintiff - Appellee v. HENRY SCHEIN, INCORPORATED; Danaher Corporation; Instrumentarium Dental, Incorporation; Dental Equipment, L.L.C.; Kavo Dental Technologies, L.L.C.; Dental Imaging Technologies, Corporation, Defendants - Appellants\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-14\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-41674 Document: 00515076566 Page: 1 Date Filed: 08/14/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 16-41674 August 14, 2019\\n Lyle W. Cayce\\nARCHER AND WHITE SALES, INCORPORATED, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nHENRY SCHEIN, INCORPORATED; DANAHER CORPORATION;\\nINSTRUMENTARIUM DENTAL, INCORPORATION; DENTAL\\nEQUIPMENT, L.L.C.; KAVO DENTAL TECHNOLOGIES, L.L.C.; DENTAL\\nIMAGING TECHNOLOGIES, CORPORATION,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Eastern District of Texas\\n\\n\\n ON REMAND FROM THE UNITED STATES SUPREME COURT\\n\\nBefore HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n In light of the Supreme Court’s decision, we consider anew the question\\nof whether the parties in this dispute delegated the threshold arbitrability\\ndetermination to an arbitrator. After being sued for antitrust violations,\\ndefendants in this suit sought to enforce an arbitration agreement. Initially,\\nthe magistrate judge granted a motion to compel arbitration, concluding that\\nthe question of arbitrability of the claims itself belonged to an arbitrator. The\\ndistrict court disagreed, holding that the arbitrability question was one for the\\n\\f Case: 16-41674 Document: 00515076566 Page: 2 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\ncourts. This panel affirmed. 1 We determined that we need not reach the issue\\nof whether the arbitration provision delegated the issue of arbitrability to an\\narbitrator because of a then-established narrow exception: where an assertion\\nof arbitrability was “wholly groundless,” a court was not required to submit the\\nissue of arbitrability to an arbitrator. Determining defendants’ arguments for\\narbitrability were wholly groundless, we affirmed the district court’s holding\\nthat the claims were not arbitrable.\\n The Supreme Court reversed, holding that the “wholly groundless”\\nexception was inconsistent with the Federal Arbitration Act. 2 The Court\\ndeclined to opine on whether the contract in this case in fact delegated the\\nthreshold arbitrability question to an arbitrator, remanding for this court to\\nmake that determination in the first instance. It reminded that “courts ‘should\\nnot assume that the parties agreed to arbitrate arbitrability unless there is\\nclear and unmistakable evidence that they did so.’” 3 Tasked with interpreting\\nthe arbitration clause anew, we conclude that the parties have not clearly and\\nunmistakably delegated the question of arbitrability to an arbitrator.\\nAccepting that the district court had the power to decide arbitrability, we now\\nhold that the district court correctly determined that this case is not subject to\\nthe arbitration clause and affirm.\\n I.\\n The origins of this dispute are well-known; the complaint in this case\\nwas filed nearly seven years ago. 4 Plaintiff-Appellee Archer and White Sales,\\nInc. is a family-owned company that distributes, sells, and services dental\\nequipment. It brought this antitrust suit against Defendant-Appellants Henry\\n\\n\\n 1 Archer & White Sales, Inc. v. Henry Schein, Inc., 878 F.3d 488 (2017), rev’d, 139 S.\\nCt. 524 (2019).\\n 2 Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 528 (2019).\\n 3 Id. at 531 (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).\\n 4 Id. at 528–29; Archer & White, 878 F.3d at 491.\\n\\n 2\\n\\f Case: 16-41674 Document: 00515076566 Page: 3 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nSchein, Inc., Danaher Corporation, and a number of subsidiaries who\\ndistribute and manufacture dental equipment. Archer claims that defendants\\nentered into an anticompetitive agreement to restrict Archer’s sales and to\\nboycott Archer. Archer’s complaint alleges violations of federal and Texas\\nantitrust law and seeks money damages and injunctive relief.\\n The contract between Archer and Pelton and Crane, one of the\\ndefendant’s predecessors-in-interest, (the “Dealer Agreement”) contains an\\narbitration clause that is at the heart of this dispute. It provides:\\n Disputes. This Agreement shall be governed by the\\n laws of the State of North Carolina. Any dispute\\n arising under or related to this Agreement (except for\\n actions seeking injunctive relief and disputes related\\n to trademarks, trade secrets, or other intellectual\\n property of Pelton & Crane), shall be resolved by\\n binding arbitration in accordance with the arbitration\\n rules of the American Arbitration Association [(AAA)].\\n The place of arbitration shall be in Charlotte, North\\n Carolina.\\n\\nAfter the case was referred to a magistrate judge, defendants invoked the\\nFederal Arbitration Act and moved to compel arbitration. Archer opposed that\\nmotion, arguing that its complaint sought injunctive relief and the arbitration\\nclause explicitly excluded actions seeking such relief.\\n The magistrate judge granted the motion, determining that the\\narbitrability question should be left to an arbitrator because the Dealer\\nAgreement incorporated the AAA rules and there was at least a “plausible\\nconstruction” that would compel arbitration. Three years later, the district\\ncourt vacated that order and held that the court could decide the threshold\\narbitrability question, reasoning that this action fell squarely within the\\narbitration clause’s express exclusion of actions seeking injunctive relief.\\n\\n\\n\\n 3\\n\\f Case: 16-41674 Document: 00515076566 Page: 4 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\n We affirmed. Relying on an exception then operative in at least four\\ncircuits, 5 we concluded that defendants’ argument for arbitration was wholly\\ngroundless. In our view, there was “no plausible argument that the arbitration\\nclause” applied to an action seeking injunctive relief. 6 Applying our precedent\\nin Douglas v. Regions Bank, 7 we determined that because the assertion of\\narbitrability was implausible, the threshold arbitrability question should be\\ndecided by the district court. 8 The Supreme Court reversed, eliminating that\\nexception and abrogating Douglas. Relying on the text of the Federal\\nArbitration Act, the Supreme Court held that if a “contract delegates the\\narbitrability question to an arbitrator, a court may not override the contract.” 9\\nThe Court reaffirmed its holding in First Options, that “parties may delegate\\nthreshold arbitrability questions to the arbitrator, so long as the parties’\\nagreement does so by ‘clear and unmistakable’ evidence.” 10 Sending the case\\nback to us, the Court instructed this court to determine whether clear and\\nunmistakable evidence of the parties’ delegation exists here. 11\\n II.\\n We review a ruling on a motion to compel arbitration de novo. 12 Our\\ninquiry proceeds in two steps. The first is a matter of contract formation—\\n“whether the parties entered into any arbitration agreement at all.” 13 Next we\\nturn to the question of contract interpretation and ask whether “this claim is\\n\\n\\n 5 See Henry Schein, 139 S. Ct. at 528–29 (collecting cases from the Fourth, Fifth, Sixth,\\nand Federal Circuits applying the exception).\\n 6 Archer, 878 F.3d at 497.\\n 7 757 F.3d 460 (2014).\\n 8 Archer, 878 F.3d at 497.\\n 9 Henry Schein, 139 S. Ct. at 529.\\n 10 Id. at 530 (quoting First Options, 514 U.S. at 944).\\n 11 While both parties read the tea leaves in the questions asked by the Justices at oral\\n\\nargument, attempting to shepherd them to support their own positions, the Court declined\\nto decide whether this agreement in fact delegated the arbitrability question.\\n 12 Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 201 (5th Cir. 2012).\\n 13 Id.\\n\\n 4\\n\\f Case: 16-41674 Document: 00515076566 Page: 5 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\ncovered by the arbitration agreement.” 14 While ordinarily both steps are\\nquestions for the court, 15 the parties can enter into an arbitration agreement\\nthat delegates to the arbitrator the power to decide whether a particular claim\\nis arbitrable. 16 The Supreme Court has repeatedly made clear that “parties can\\nagree to arbitrate ‘gateway’ questions of ‘arbitrability,’ such as whether the\\nparties have agreed to arbitrate or whether their agreement covers a particular\\ncontroversy.” 17\\n When considering whether there was a valid delegation, “the court’s\\nanalysis is limited.” 18 As always, we ask if the parties entered into a valid\\nagreement. If they did, we turn to the delegation clause and ask “whether the\\npurported delegation clause is in fact a delegation clause—that is, if it evinces\\nan intent to have the arbitrator decide whether a given claim must be\\narbitrated.” 19 When determining that intent, “[c]ourts should not assume that\\nthe parties agreed to arbitrate arbitrability unless there is ‘clear and\\nunmistakable’ evidence that they did so.” 20 If there is a valid delegation, the\\ncourt must grant the motion to compel. 21\\n The parties agree that there is a valid arbitration clause. With respect\\nto delegation, the parties’ arguments on remand sing a familiar tune. Archer\\ncontends that there is no clear and unmistakable evidence that the parties\\ndelegated arbitrability disputes to an arbitrator. The way the agreement is\\n\\n\\n\\n 14 Id.\\n 15 Id. (citing Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 214 (5th Cir. 2003)).\\n 16 Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002).\\n 17 Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68–69 (2010) (citing Howsam, 537\\n\\nU.S. at 83–85).\\n 18 Kubala, 830 F.3d at 202.\\n 19 Id.\\n 20 First Options, 514 U.S. at 944 (internal citation and alterations omitted).\\n 21 Kubala, 830 F.3d at 202. Of course, Kubala’s statement that “the motion to compel\\n\\narbitration should be granted in almost all cases”—where the argument for arbitration was\\nnot wholly groundless—should now be read without the “almost.”\\n 5\\n\\f Case: 16-41674 Document: 00515076566 Page: 6 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nwritten, Archer asserts that the AAA rules (and resulting delegation) only\\napply to disputes that fall outside of the arbitration clause’s carve-out for\\nactions seeking injunctive relief. Under their reading, if a case falls within the\\ncarve-out, the agreement does not incorporate the AAA rules and the gateway\\narbitrability question is not delegated to an arbitrator. On the other hand,\\ndefendants argue that the agreement’s incorporation of the AAA rules ends the\\ninquiry. They maintain that the carve-out for actions seeking injunctive relief\\ndoes not trump the parties’ delegation. Defendants warn that to read the\\ncontract as Archer suggests would require the court to make a merits\\ndetermination about the scope of the carve-out—whether this is indeed an\\naction seeing injunctive relief—to answer the delegation question, precisely\\nthe category of inquiries a court is precluded from making in answering the\\ndelegation question.\\n “Unless the parties clearly and unmistakably provide otherwise, the\\nquestion of whether the parties agreed to arbitrate is to be decided by the court,\\nnot the arbitrator.” 22 A contract need not contain an express delegation clause\\nto meet this standard. As we held in Petrofac, an arbitration agreement that\\nincorporates the AAA Rules “presents clear and unmistakable evidence that\\nthe parties agreed to arbitrate arbitrability.” 23 Under AAA Rule 7(a), “[t]he\\narbitrator shall have the power to rule on his or her own jurisdiction, including\\nany objections with respect to the existence, scope, or validity of the arbitration\\nagreement or to the arbitrability of any claim or counterclaim.” 24\\n It is undisputed that the Dealer Agreement incorporates the AAA rules,\\ndelegating the threshold arbitrability inquiry to the arbitrator for at least some\\n\\n\\n 22 AT&T Technologies, Inc. v. Commc’n Workers of Am., 475 U.S. 643, 649 (1986).\\n 23 Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th\\nCir. 2012).\\n 24 AM. ARBITRATION ASS’N, COMMERCIAL ARBITRATION RULES AND MEDICATION\\n\\nPROCEDURES 13 (2013), https://www.adr.org/sites/default/files/Commercial%20Rules.pdf.\\n 6\\n\\f Case: 16-41674 Document: 00515076566 Page: 7 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\ncategory of cases. The parties dispute the relationship of the carve-out clause—\\nexempting actions seeking injunctive relief—and the incorporation of the AAA\\nrules. The agreement states that “[a]ny dispute arising under or related to this\\nAgreement (except for actions seeking injunctive relief and disputes related to\\ntrademarks, trade secrets, or other intellectual property of [the predecessor]),\\nshall be resolved by binding arbitration in accordance with the arbitration rules\\nof the American Arbitration Association.”\\n The agreement in Petrofac explicitly covered “all claims and disputes,”\\ncontaining no carve-out provision. 25 We have previously applied Petrofac to\\narbitration provisions that do contain carve-out provisions. In Crawford, we\\nconsidered an arbitration agreement that incorporated the AAA Rules and also\\ncontained a carve-out that nothing in the arbitration provision “shall prevent\\neither party from seeking injunctive relief for breach of th[e Agreement].” 26\\nWithout specifically discussing the carve-out, we held that the Crawford\\nagreement’s incorporation of the AAA rules was “clear and unmistakable\\nevidence that the parties to the [] Agreement agreed to arbitrate\\n\\n\\n\\n\\n 25 Petrofac, 687 F.3d at 674.\\n 26 Crawford Prof’l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 256 (5th Cir.\\n2014). In that case, the Provider Agreement read as follows:\\n Any and all disputes in connection with or arising out of the Provider\\n Agreement by the parties will be exclusively settled by arbitration before a\\n single arbitrator in accordance with the Rules of the American Arbitration\\n Association. The arbitrator must follow the rule of Law, and may only award\\n remedies provided for in the Provider Agreement . . . . Any such arbitration\\n must be conducted in Scottsdale, Arizona, and Provider agrees to such\\n jurisdiction, unless otherwise agreed to by the parties in writing. The expenses\\n of arbitration, including reasonable attorney's fees, will be paid for by the party\\n against whom the award of the arbitrator is rendered . . . . Arbitration shall be\\n the exclusive and final remedy for any dispute between the parties in\\n connection with or arising out of the Provider Agreement; provided, however,\\n that nothing in this provision shall prevent either party from seeking\\n injunctive relief for breach of this Provider Agreement in any state or federal\\n court of law . . . .\\n 7\\n\\f Case: 16-41674 Document: 00515076566 Page: 8 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\narbitrability.” 27 Under the terms of that agreement, the gateway arbitrability\\nquestion was delegated to the arbitrator. The Ninth Circuit considered a\\nsimilar agreement in Oracle Am., Inc. v. Myriad Group A.G. 28 The arbitration\\nclause adopted arbitration rules delegating arbitrability issues to the\\narbitrator and contained a carve-out for certain intellectual property and\\nlicensing claims. 29 Because the claims carved-out by that agreement “ar[ose]\\nout of or relat[ed] to” the Source License, and the agreement explicitly provided\\nthat any claim arising out of the Source License was subject to arbitration, the\\nNinth Circuit held that Oracle’s carve-out argument “conflate[ed] the scope of\\nthe arbitration clause . . . with the question of who decides arbitrability.” 30\\n The Second Circuit has also considered an arbitration clause that\\nincorporated the AAA rules and exempted certain claims from arbitration. 31\\n\\n\\n\\n 27 Id. at 263.\\n 28 724 F.3d 1069, 1072–75 (9th Cir. 2013).\\n 29 The agreement at issue stated, in relevant part:\\n\\n Any dispute arising out of or relating to this License shall be finally settled by\\n arbitration as set out herein, except that either party may bring any action, in\\n a court of competent jurisdiction (which jurisdiction shall be exclusive), with\\n respect to any dispute relating to such party’s Intellectual Property Rights or\\n with respect to Your compliance with the TCK license. Arbitration shall be\\n administered: (i) by the American Arbitration Association (AAA), (ii) in\\n accordance with the rules of the United Nations Commission on International\\n Trade Law (UNCITRAL) (the “Rules”) in effect at the time of arbitration as\\n modified herein; and (iii) the arbitrator will apply the substantive laws of\\n California and United States. Judgment upon the award rendered by the\\n arbitrator may be entered in any court having jurisdiction to enforce such\\n award.\\nId. at 1071.\\n 30 Oracle, 724 F.3d at 1076. The clause in Oracle provided that “any claim arising out\\n\\nof the Source License shall be settled by arbitration” but exempted “any dispute relating to\\nsuch party’s Intellectual Property Rights or with respect to [Myriad’s] compliance with the\\nTCK license.” Id. at 1075–76. The court noted that the issue with Oracle’s carve-out argument\\nwas that the two categories of exempted claims by definition were claims arising out of or\\nrelating to the Source License, which were explicitly subject to arbitration. Id. at 1076. No\\nsuch circularity exists in the contract at issue here.\\n 31 NASDAQ OMX Grp., Inc. v. UBS Securities, LLC, 770 F.3d 1010 (2d Cir. 2014).\\n\\nThat agreement provided in relevant part:\\n 8\\n\\f Case: 16-41674 Document: 00515076566 Page: 9 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nThe court noted that it had “found the ‘clear and unmistakable’ provision\\nsatisfied where a broad arbitration clause expressly commits all disputes to\\narbitration, concluding that all disputes necessarily includes disputes as to\\narbitrability.” 32 However, the parties in NASDAQ had not clearly and\\nunmistakably delegated arbitrability “where a broad arbitration clause is\\nsubject to a qualifying provision that at least arguably covers the present\\ndispute.” 33 Because there was ambiguity as to whether the parties intended to\\nhave arbitrability questions decided by an arbitrator—because the dispute\\narguably fell within the carve-out—the court held the arbitrability question\\nwas for the court to decide. 34\\n Defendants urge that Crawford controls and the only difference between\\nthat arbitration agreement and the one here is syntax—the ordering of words.\\nBut that is precisely the point—the placement of the carve-out here is\\ndispositive. We cannot re-write the words of the contract. The most natural\\nreading of the arbitration clause at issue here states that any dispute, except\\nactions seeking injunctive relief, shall be resolved in arbitration in accordance\\nwith the AAA rules. The plain language incorporates the AAA rules—and\\ntherefore delegates arbitrability—for all disputes except those under the carve-\\n\\n\\n\\n\\n A. Except as may be provided in the NASDAQ OMX Requirements, all claims,\\n disputes, controversies, and other matters in question between the Parties to this\\n Agreement and the Parties’ employees, directors, agents and associated persons\\n arising out of, or relating to this Agreement, or to the breach hereof, shall be settled\\n by final binding arbitration in accordance with this Agreement and the following\\n procedure or such other procedures as may be mutually agreed upon by the Parties.\\n B. Except as otherwise provided herein or by agreement of the Parties, any arbitration\\n proceeding shall be conducted in accordance with the Commercial Arbitration Rules\\n of the American Arbitration Association or in accordance with such other rules and\\n procedures as are agreed to by the Parties.\\nId. at 1016.\\n 32 Id. at 1031.\\n 33 Id.\\n 34 Id. at 1032.\\n\\n 9\\n\\f Case: 16-41674 Document: 00515076566 Page: 10 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nout. Given that carve-out, we cannot say that the Dealer Agreement evinces a\\n“clear and unmistakable” intent to delegate arbitrability.\\n We are mindful of the Court’s reminder that “[w]hen the parties’ contract\\ndelegates the arbitrability question to an arbitrator, the courts must respect\\nthe parties’ decision as embodied in the contract.” 35 But we must also heed its\\nwarning that “courts ‘should not assume that the parties agreed to arbitrate\\narbitrability unless there is clear and unmistakable evidence that they did\\nso.’” 36 The parties could have unambiguously delegated this question, but they\\ndid not, and we are not empowered to re-write their agreement.\\n III.\\n In addition to disputing whether an arbitrator must decide the gateway\\nquestion of arbitrability, the parties disagree about whether the underlying\\ndispute is arbitrable at all. Accepting that the district court had the power to\\ndecide arbitrability, we next examine whether it correctly determined that the\\ninstant action is not subject to the arbitration clause. We do so against the\\nbackdrop of a strong presumption in favor of arbitration, 37 yet we also remain\\nmindful of the fact that the FAA “does not require parties to arbitrate when\\nthey have not agreed to do so, nor does it prevent parties who do agree to\\narbitrate from excluding certain claims from the scope of their arbitration\\nagreement.” 38\\n The magistrate judge found that while “[o]n the most superficial level,\\nthis lawsuit is clearly an action seeking injunctive relief since it does seek that\\n\\n\\n\\n\\n 35 Henry Schein, Inc., 139 S. Ct. at 531.\\n 36 Id. (quoting First Options, 514 U.S. at 944).\\n 37 See, e.g., Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25\\n\\n(1983) (“[A]s a matter of federal law, any doubts concerning the scope of arbitrable issues\\nshould be resolved in favor of arbitration . . . .”).\\n 38 Volt Info. Scis., Inc. v. Bd. Of Trustees of Leland Stanford Junior Univ., 489 U.S.\\n\\n468, 478 (1989) (internal citations omitted).\\n 10\\n\\f Case: 16-41674 Document: 00515076566 Page: 11 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nrelief,” there was also “a plausible construction [of the Dealer Agreement]\\ncalling for arbitration.” The magistrate judge read the contract to leave open\\n“the question of whether the exception for actions seeking injunctive relief\\nshould be limited to actions for an injunction in aid of arbitration or to enforce\\nan arbitrator’s award.”\\n The district court, on the other hand, found that the carve-out for\\n“‘actions seeking injunctive relief’ is clear on its face—any action seeking\\ninjunctive relief is excluded from mandatory arbitration.” Thus, the provision’s\\nplain language includes all actions seeking injunctive relief, not a more limited\\ncategory of cases. 39 In so holding, the district court pointed out that the carve-\\nout clause is not part of the AAA’s suggested language, and that “[s]uch an\\nintentional drafting effort . . . is worthy of the court’s notice.” The court declined\\nto “re-write the terms of the Parties’ agreement to accommodate a party—\\nnotably the party that drafted the agreement—that could have negotiated for\\nmore precise language,” and held that the arguments for arbitrability were\\n“wholly without merit based on the plain language of the arbitration clause\\nitself.”\\n Defendants urge that, where an arbitration clause contains a carve-out\\nfor injunctive relief and one party files a complaint seeking both injunctive\\nrelief and damages, the court should read the carve-out to permit injunctive\\nrelief only as a preliminary matter to preserve the status quo pending\\narbitration or on a permanent basis after the plaintiff secures an arbitration\\naward in its favor. They suggest that the court must send the damages clause\\nto arbitration, even if it results in piecemeal litigation. In their view, that\\n\\n\\n\\n 39 The district court observed, “no textual basis exists for reading the phrase ‘actions\\nseeking injunctive relief’ as ‘actions seeking injunctive relief if such injunctions are in aid of\\narbitration.’ Further, the clause does not limit the exclusion to actions seeking ‘only’\\ninjunctive relief, and the Court also declines to read that limitation into the document.”\\n 11\\n\\f Case: 16-41674 Document: 00515076566 Page: 12 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nreading of the clause preserves the parties’ right to arbitrate the damages\\nclaims while preserving the court’s role in any injunctive proceedings. They\\nwarn that Archer’s interpretation allows a party to “tack on” a vague request\\nfor injunctive relief to evade arbitration.\\n Archer counters that the plain language of the clause makes clear that\\nthe parties did not agree to arbitrate actions that include a request for\\ninjunctive relief—therefore there is no plausible argument that the arbitration\\nclause applies. Archer emphasizes that arbitration agreements are as\\nenforceable as other contracts, but not more so, and the court cannot reach\\nbeyond the plain and unambiguous language in the agreement.\\n We note first that the arbitration clause creates a carve-out for “actions\\nseeking injunctive relief.” It does not limit the exclusion to “actions seeking\\nonly injunctive relief,” nor “actions for injunction in aid of an arbitrator’s\\naward.” Nor does it limit the carve-out to claims for injunctive relief. Such\\nreadings find no footing within the four corners of the contract. Under North\\nCarolina law, “[w]hen the language of a contract is clear and unambiguous,\\neffect must be given to its terms, and the court, under the guise of construction,\\ncannot reject what the parties inserted or insert what the parties elected to\\nomit.” 40 The mere fact that the arbitration clause permits Archer to avoid\\narbitration by adding a claim for injunctive relief does not change the clause’s\\nplain meaning. “While ambiguities in the language of the agreement should be\\nresolved in favor of arbitration, we do not override the clear intent of the\\nparties, or reach a result inconsistent with the plain text of the contract, simply\\n\\n\\n\\n\\n 40 Procar II, Inc. v. Dennis, 721 S.E.2d 369, 371 (N.C. Ct. App. 2012) (quoting Taylor\\nv. Gibbs, 268 N.C. 363, 365, (1966)).\\n 12\\n\\f Case: 16-41674 Document: 00515076566 Page: 13 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\nbecause the policy favoring arbitration is implicated.” 41 Fundamentally,\\ndefendants ask us to rewrite the unambiguous arbitration clause. We cannot.\\n Defendants urge that this reading would lead to absurd results, where\\none party could unilaterally evade the agreement to arbitrate with an\\nattenuated request for injunctive relief. This argument overreaches. Even if\\nwe re-wrote the carve-out clause to apply only to actions seeking significant\\ninjunctive relief—which we cannot—this particular action would still fall\\nwithin that exception. Archer’s complaint alleges multiple continuing\\nviolations of federal and state antitrust laws. 42 As the district court correctly\\nnoted, the proper vehicle to argue Archer failed to state a claim for relief is a\\nmotion under Rule 12. We cannot address the underlying merits of Archer’s\\nclaim at this stage. It is enough to note that the current action is indeed an\\n“action seeking injunctive relief.”\\n\\n\\n\\n\\n 41 E.E.O.C. v. Waffle House, 534 U.S. 279, 294 (2002) (emphasis added) (internal\\ncitations omitted).\\n 42 In their initial briefing to this court and in their supplemental brief on remand,\\n\\ndefendants contend that Archer is no longer entitled to injunctive relief because, during the\\npendency of this litigation, their contractual relationship with Archer ended. In support of\\nthis proposition, defendants cite cases where this court has held that plaintiffs are no longer\\nentitled to injunctive relief. In Hendricks, the court held that enjoining a plaintiff’s former\\nemployer from future ERISA violations was not appropriate. Hendricks v. UBS Fin. Servs.,\\nInc., 546 F. App’x 514, 520 (5th Cir. 2013) (per curiam). In Glanville, a district court found\\nthe plaintiffs had no standing to pursue a claim for declaratory and injunctive relief based on\\ntheir purported misclassification as independent contractors because they no longer had any\\nemployment relationship with the defendants and thus could not allege future harm.\\nGlanville v. Dupar, Inc., 727 F.Supp.2d 596, 602 (S.D. Tex. 2010). In its initial brief, Archer\\nresponded that these cases are inapposite because they do not involve antitrust violations.\\nArcher notes that other circuits have upheld injunctive relief in private antitrust actions even\\nwhere the specific conspiracy alleged has ended. See Wilk v. Am. Med. Ass’n, 895 F.2d 352,\\n378 (7th Cir. 1990) (affirming the grant of an injunction aimed at remedying lasting effects\\nof an illegal boycott). We need not decide this question here, as the arbitrability question\\nturns only on whether the existing action as a whole constitutes an “action seeking injunctive\\nrelief.”\\n 13\\n\\f Case: 16-41674 Document: 00515076566 Page: 14 Date Filed: 08/14/2019\\n\\n\\n\\n No. 16-41674\\n IV.\\n Because this action is not subject to mandatory arbitration, we do not\\nreach Archer’s alternative argument that third parties to the arbitration clause\\ncannot enforce such an arbitration clause. We affirm the district court’s order\\ndenying defendants’ motions to compel arbitration.\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3661,"cells":{"id":{"kind":"number","value":4648705,"string":"4,648,705"},"name":{"kind":"string","value":"In RE: Dexter JOHNSON, Movant Dexter Johnson, Petitioner - Appellant v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee"},"name_abbreviation":{"kind":"string","value":"Johnson v. Davis (In Re Johnson)"},"decision_date":{"kind":"string","value":"2019-08-14"},"docket_number":{"kind":"string","value":"19-20552; C/w 19-70013"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Southwick, Graves, Higginson\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 19-20552 Document: 00515077003 Page: 1 Date Filed: 08/14/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 19-20552 August 14, 2019\\n Lyle W. Cayce\\nIn re: DEXTER JOHNSON, Clerk\\n\\n\\n Movant\\n--------------------------------------------------------------\\nConsolidated with 19-70013\\n\\nDEXTER JOHNSON,\\n\\n Petitioner - Appellant\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent - Appellee\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Dexter Johnson was convicted of the murder of Maria Aparece in the\\ncourse of committing attempted robbery on June 13, 2007, and was sentenced\\nto death. Far greater detail is given of the offense in Johnson v. Stephens, 617\\n\\f Case: 19-20552 Document: 00515077003 Page: 2 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nF. App’x 293 (5th Cir. 2015). His conviction and sentence were affirmed on\\ndirect appeal.\\n Johnson was appointed state habeas counsel, Patrick McCann. Johnson\\nfiled a state application for writ of habeas corpus while his direct appeal was\\npending. His state habeas claims were denied, and McCann did not raise an\\nineffective assistance of trial counsel (IATC) claim. That application also did\\nnot include an Atkins v. Virginia, 536 U.S. 304 (2002), claim. McCann\\ncontinued to represent Johnson in federal habeas proceedings, filing an\\napplication one year later that was duplicative of the state habeas claims, plus\\none claim that Johnson was interrogated in violation of Edwards v. Arizona,\\n451 U.S. 477 (1981). It also did not include an Atkins claim.\\n After Martinez v. Ryan, 566 U.S. 1 (2012), was decided, McCann filed a\\nmotion to stay and to abey Johnson’s proceeding to allow exhaustion of his\\nIATC claims or to amend his application under Martinez to add those claims.\\nThat claim alleged that trial counsel were ineffective for failing to present\\nevidence of Johnson’s brain damage and mental illness during the guilt phase\\nto show he could not form intent for murder and that appeal counsel were\\nineffective for failing to raise IATC claims.\\n The district court ordered supplemental briefing on Trevino v. Thaler,\\n569 U.S. 413 (2013), and ultimately denied Johnson’s motion to stay and abey\\nor amend the federal application and Johnson’s request for habeas relief. The\\ndistrict court granted a COA on Johnson’s claim that his custodial statement\\nwas admitted in violation of his Fifth Amendment rights. We then affirmed\\nthe denial of habeas relief on his Fifth Amendment claim and denied an\\nadditional request for a COA. Johnson, 617 F. App’x at 305. Johnson sought\\nSupreme Court review, which was denied. Johnson v. Stephens, 136 S. Ct. 980\\n(2016).\\n 2\\n\\f Case: 19-20552 Document: 00515077003 Page: 3 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n On June 4, 2017, Johnson filed a motion in the federal district court\\nrequesting a new trial. The court denied the motion and his motion for\\nreconsideration. Johnson requested a COA, which was denied by this court.\\nJohnson v. Davis, 746 F. App’x 375, 381 (5th Cir. 2018) (per curiam). The\\nSupreme Court again denied him a writ of certiorari.\\n On January 18, 2019, Johnson, pro se, requested a Federal Public\\nDefender (FPD) be appointed in his case because of the conflict of interest\\nbetween himself and McCann established after Martinez and Trevino.\\nMcCann filed an opposition under seal. Johnson then filed a pro se motion on\\nFebruary 1, 2019, again asking for independent counsel. On February 5, 2019,\\nthe court appointed a FPD, but kept McCann’s appointment. The FPD\\nrequested removal of McCann, which was opposed by the State and McCann.\\n Six days after the motion to remove McCann, McCann filed a single-issue\\nsuccessive habeas application in state court, which was denied April 29, 2019.\\nMcCann also filed a clemency petition. On April 30, 2019, the district court\\nstayed Johnson’s execution, noting “troubling concerns” about McCann.\\nMcCann withdrew two days later.\\n On June 24, 2019 Johnson filed a motion for relief from judgment\\npursuant to Federal Rule of Civil Procedure 60(b). The district court denied\\nthe motion on August 12, 2019.\\n On August 6, 2019, Johnson moved to strike his second successive state\\nhabeas application, alleging that it was filed by McCann without his\\npermission. He also filed a successive habeas application with the motion to\\nstrike on the same day. This motion was denied “as an abuse of the writ\\nwithout reviewing the merits of the claims raised” on August 13, 2019.\\n\\n\\n\\n\\n 3\\n\\f Case: 19-20552 Document: 00515077003 Page: 4 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n Separately, Johnson moved in this court for an order authorizing the\\ndistrict court to consider a second or successive application for a writ of habeas\\ncorpus under 28 U.S.C. § 2244 based on an Atkins claim on August 8, 2019.\\n Before us now are Johnson’s Motion for a Certificate of Appealability\\n(COA) relating to the district court’s denial of relief under Rule 60(b) and also\\nJohnson’s motion for an order authorizing a successive application for habeas\\ncorpus. We address Johnson’s motion for a COA first.\\n\\n\\n DISCUSSION\\nI. Motion for COA on Rule 60(b)\\n “At the COA stage, the only question is whether the applicant has shown\\nthat ‘jurists of reason could disagree with the district court’s resolution of his\\nconstitutional claims or that jurists could conclude the issues presented are\\nadequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S.\\nCt. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).\\nThis court reviews the district court’s order denying a Rule 60(b) motion for an\\nabuse of discretion, so on a COA this court must determine whether reasonable\\njurists could conclude the district court abused its discretion. Id. at 777. While\\na full merits inquiry is not proper in the COA analysis, we conduct a threshold\\ninquiry to determine if the district court’s decision was debatable. Id. at 774.\\n “[R]elief under Rule 60(b)(6) is available only in ‘extraordinary\\ncircumstances.’” Id. at 777 (quoting Gonzales v. Crosby, 545 U.S. 524, 535\\n(2005)). Extraordinary circumstances “will rarely occur in the habeas context.”\\nGonzalez, 545 U.S. at 535. The district court is permitted to consider a “wide\\nrange of factors” in determining whether extraordinary circumstances are\\npresent. Buck, 137 S. Ct. at 778. “These may include, in an appropriate case,\\n‘the risk of injustice to the parties’ and ‘the risk of undermining the public’s\\n 4\\n\\f Case: 19-20552 Document: 00515077003 Page: 5 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nconfidence in the judicial process.’” Id. (quoting Liljeberg v. Health Servs.\\nAcquisition Corp., 486 U.S. 847, 863-64 (1988)). “Moreover, a Rule 60(b)(6)\\nmovant must show that he can assert ‘a good claim or defense’ if his case is\\nreopened.” Ramirez v. Davis, 19-70004, 2019 WL 2622147, at *6 (5th Cir. June\\n26, 2019) (quoting Buck, 137 S. Ct. at 780).\\n The district court concluded that Johnson’s motion was a “true” Rule\\n60(b) motion because it attacked a defect in the integrity of the federal habeas\\nproceeding and did not “seek[] to add a new ground for relief’ or ‘attack[] the\\nfederal court’s previous resolution of a claim on the merits,’” which “is the\\n‘functional equivalent of [an] unauthorized successive § 2254 petition[].’”\\nQuoting Gilkers v. Vannoy, 904 F.3d 336, 344 (5th Cir. 2018). That defect was\\nMcCann’s deficient performance and conflicts of interest. We do not find that\\njurists of reason would conclude that the district court abused its discretion in\\nfinding Johnson’s motion to be a true Rule 60(b) motion.\\n The district court also determined that Johnson’s motion was timely\\nbecause newly appointed counsel filed the motion within six months after\\nappointment as co-counsel and very shortly after original habeas counsel was\\nremoved. The question of timeliness is based on the “facts and circumstances\\nof the case.” Ramirez, 2019 WL 2622147, at *5 (quotation omitted).\\n Johnson challenges here the district court’s denial of his Rule 60(b)\\nmotion based on its finding that there were not extraordinary circumstances\\njustifying reopening the judgment. The district court determined that Johnson\\nhad properly alleged a defect in the integrity of his proceeding but concluded\\nthat he had failed to demonstrate extraordinary circumstances, basing its\\nopinion primarily on Johnson’s failure to plead any meritorious defaulted IATC\\nclaims. Johnson claims that the district court unnecessarily narrowed the wide\\nrange of factors that should have been considered, focusing only on whether\\n 5\\n\\f Case: 19-20552 Document: 00515077003 Page: 6 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nJohnson described a meritorious IATC claim that was defaulted and whether\\nJohnson had pled that his federal habeas proceeding was deficient.\\n Johnson claims that under the COA standard, jurists of reason could\\ndebate whether the district court abused its discretion in concluding that\\nJohnson failed to demonstrate extraordinary circumstances because he did not\\nplead the merits of a defaulted IATC claim. Johnson argues that the question\\nunder Rule 60(b) is not whether there is a meritorious habeas claim if he was\\nrepresented by conflict-free counsel, but whether his previous counsel\\nMcCann’s performance was so deficient that he failed to provide the quality of\\nrepresentation that 18 U.S.C. § 3599 guarantees. Johnson’s claim is that\\nMcCann’s representation fell so far below the standards of Section 3599 that\\nhis case presents extraordinary circumstances.\\n Johnson also claims that the district court, which based its decision on\\nthe lack of any debatable defaulted IATC claim, has placed habeas applicants\\nin an impossible situation. Johnson argues that requiring him to identify and\\nlitigate the substantive merit and procedural defenses of defaulted IATC\\nclaims would effectively require Mr. Johnson to transform his Rule 60(b)\\nmotion into a successive petition.\\n Finally, Johnson argues that reasonable jurists could debate whether the\\ndistrict court abused its discretion by failing to address McCann’s ethical\\nviolations. Johnson claims that McCann violated multiple ethical rules,\\nincluding the duty of candor for not explaining his conflict of interest and the\\nduty of loyalty for not remedying the conflict.\\n Responding to these arguments, we point out that having conflicted\\ncounsel is not enough to obtain relief under Rule 60(b). See Raby v. Davis, 907\\nF.3d 880, 884 (5th Cir. 2018). The Supreme Court explained that even if it is\\nshown to be debatable that state habeas counsel was constitutionally\\n 6\\n\\f Case: 19-20552 Document: 00515077003 Page: 7 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nineffective, there is another “significant element” of a Rule 60(b)(6) motion: the\\nclaim must have “some merit.” Buck, 137 S. Ct. at 780. The Court elaborated\\nthat this means that the movant must show “a good claim or defense” because\\nthat “is a precondition of Rule 60(b)(6) relief.” Id. (second quotation from 11\\nWRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2857).\\n The district court properly held that Johnson fell short on this significant\\nrequirement. Current counsel mentioned a few potentially meritorious claims\\nthat were previously defaulted in his reply brief but failed to brief them in any\\ndetail whatsoever. The district court noted that it directed Johnson’s conflict-\\nfree attorneys to “scour the record” for Strickland claims that meet the\\nprerequisites for Martinez and Trevino but that there were no identified\\n“procedural default[s] that would otherwise bar a federal habeas court from\\nhearing a substantial claim of ineffective assistance at trial.” Jennings, 760 F.\\nApp’x 319, 324 (5th Cir. 2019) (citations omitted). Our finding here is\\nconsistent with Buck’s directive that we not delve too deeply into the\\nunderlying merits of a claim, because none was presented. 137 S. Ct. at 774.\\nFurthermore, in a deficient representation case such as this, there needed to\\nbe some factor besides the representation. See Id. at 777-780 (finding that\\nMartinez/Trevino was one significant element but relying in significant part on\\nother circumstances such as race being a basis for the verdict). Johnson failed\\nto brief these claims, and so we find that reasonable jurists would not debate\\nthe district court’s decision that Johnson’s Martinez and Trevino conflict\\narguments were inadequate to show exceptional circumstances.\\n As to Johnson’s argument that the district court ignored his claims about\\nMcCann’s alleged deficient performance, the district court stated that Rule\\n60(b) relief is ordinarily not appropriate in the habeas context. Buck, 137 S.\\nCt. at 777. If there were no underlying meritorious waived claims, then it can\\n 7\\n\\f Case: 19-20552 Document: 00515077003 Page: 8 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nhardly be argued that there is a “risk of injustice” to Johnson because he did\\nnot argue he would be entitled to any form of relief if his case were reopened.\\nSee Liljeberg, 486 U.S. at 863-864 (cited in Buck, 137 S. Ct. at 778).\\nFurthermore, in other cases where habeas counsel was deficient for omitting\\ncertain claims, the Supreme Court has stated that such an attack “ordinarily\\ndoes not go to the integrity of the proceedings.” Gonzales v. Crosby, 545 U.S.\\nat 532 n.5. Although Johnson attempts to recast McCann’s actions as choices,\\nnot omissions, the thrust of the logic still applies: McCann’s alleged deficient\\nperformance was not itself sufficient to constitute exceptional circumstances.\\n Reasonable jurists would not debate that the district court did not abuse\\nits discretion in concluding that Johnson’s claims did not present extraordinary\\ncircumstances. This is because Johnson failed to brief any waived claims\\nsufficient to allow the district court to determine whether extraordinary\\ncircumstances that might “risk . . . undermining the public’s confidence in the\\njudicial process” were present. Liljeberg, 486 U.S. at 864. Johnson also fails\\nto provide us any authority that Section 3599 has ever provided relief pursuant\\nto Rule 60(b). In sum, we conclude that reasonable jurists would not debate\\nthat the district court did not abuse its discretion in denying Johnson’s Rule\\n60(b) motion.\\n Johnson’s motion for a COA is DENIED.\\n\\n\\nII. Motion for Successive Application\\n We review an application for the filing of a successive habeas application\\nto determine if the applicant makes a prima facie showing that he has met the\\nrequirements of Section 2244. 28 U.S.C. § 2244(b)(3)(C). A prima facie\\nshowing is “simply a sufficient showing of possible merit to warrant a fuller\\n\\n\\n 8\\n\\f Case: 19-20552 Document: 00515077003 Page: 9 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nexploration by the district court.” In re Morris, 328 F.3d 739, 740 (5th Cir.\\n2003) (quoting Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997)).\\n A person in custody under a state-court judgment who seeks to file a\\nsuccessive application for a writ of habeas corpus in federal court must satisfy\\nthese requirements:\\n (1) A claim presented in a second or successive habeas\\n corpus application under section 2254 that was presented in a\\n prior application shall be dismissed.\\n (2) A claim presented in a second or successive habeas corpus\\n application under section 2254 that was not presented in a prior\\n application shall be dismissed unless-\\n (A) the applicant shows that the claim relies on a new\\n rule of constitutional law, made retroactive to cases on\\n collateral review by the Supreme Court, that was previously\\n unavailable; or\\n (B)(i) the factual predicate for the claim could not have\\n been discovered previously through the exercise of due\\n diligence; and\\n (ii) the facts underlying the claim, if proven and\\n viewed in light of the evidence as a whole, would be sufficient\\n to establish by clear and convincing evidence that, but for\\n constitutional error, no reasonable factfinder would have\\n found the applicant guilty of the underlying offense.\\n28 U.S.C. § 2244(b).\\n Johnson’s two primary arguments in support of his Atkins claim are that\\nhis only recently discharged counsel had a conflict of interest because he is the\\none whose ineffectiveness in state habeas needed to be challenged, and that\\nrecent changes to the medical standards for determining mental disability\\nbenefit him. Applying Section 2244(b)(2)(A), Johnson argues that Atkins is a\\nnew rule of constitutional law that is retroactive and that his claim was\\n\\n\\n\\n 9\\n\\f Case: 19-20552 Document: 00515077003 Page: 10 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\npreviously unavailable because the latest professional diagnostic manual\\nchanged the framework for intellectual disability. 1\\n At trial, Johnson was found not to be intellectually disabled. This was\\nunder an earlier professional manual, DSM-IV-TR, which relied on Johnson’s\\nIQ score that was above 70. 2 The latest DSM-5 manual changed the diagnostic\\nframework for intellectual disability. Higher IQ scores no longer bar a\\ndiagnosis of an intellectual disability. Dr. Daniel A. Martell concluded that as\\nof July 31, 2019, Johnson “meets the criteria for a diagnosis of Intellectual\\nDisability” under the DSM-5. In 2019, Johnson scored 70 on a full-scale WAIS-\\nIV IQ test.\\n First, Johnson must show that his claim was not presented in a prior\\nfederal application. 28 U.S.C. § 2244(b)(1). The State concedes that he did not.\\nThus, Johnson has met the requirements of Section 2244(b)(1).\\n Second, “Atkins created a new rule of constitutional law . . . made\\nretroactive to cases on collateral review by the Supreme Court.” In re\\nCampbell, 750 F.3d 523, 530 (5th Cir. 2014). As is obvious, though, Atkins was\\ndecided long before Johnson even committed his crimes. A meaningful hurdle\\nfor Johnson is to demonstrate why we should consider that case to be\\nretroactive as to him. The State argues that it is not. We hold to the contrary,\\ncounterintuitively perhaps, but not unreasonably, with the full weight of our\\n\\n\\n\\n\\n 1 Johnson also argues that his claim satisfies Section 2244(b)(2)(B), dealing with the\\nfactual predicates for his claims, but we need not, and do not, discuss that argument.\\n 2 The manuals express current medical standards for defining intellectual disability.\\n\\n“Reflecting improved understanding over time, . . . current manuals offer ‘the best available\\ndescription of how mental disorders are expressed and can be recognized by trained\\nclinicians.’” Moore v. Texas, 137 S. Ct. 1039, 1053 (2017) (quoting the DSM-5 and noting that\\ncurrent medical standards constrain a state’s definition of what is an intellectual disability).\\n 10\\n\\f Case: 19-20552 Document: 00515077003 Page: 11 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nconclusion being borne by this court’s recent decision in In re Cathey, 857 F.3d\\n221 (5th Cir. 2017). We discuss that case next.\\n\\n A. Claim was previously unavailable\\n We analyze whether Johnson’s “claim relies on a new rule of\\nconstitutional law, made retroactive to cases on collateral review by the\\nSupreme Court, that was previously unavailable.” § 2244(b)(2)(A). In the\\nCathey precedent on which we rely, the applicant’s IQ initially was thought to\\nbe too high for intellectual disability. In re Cathey, 857 F.3d at 230. Upon his\\nadmission to prison, which was pre-Atkins, an IQ test was given to him that\\nsupported that his IQ was within the range for sufficient mental disability to\\nbe exempt from the death penalty. Id. at 232. For reasons that were disputed,\\nthe documents for that test did not become available to the inmate and counsel\\nuntil 12 years after his conviction. Id. In addition, it was 6 years after Cathey’s\\nconviction that a litigation theory bearing on the accuracy of IQ scores called\\nthe Flynn Effect was recognized by courts. Id. at 227, 229-33. Thus, when\\nCathey filed his initial state and federal habeas applications, there was not a\\nclaim “with some possibility of merit” under Atkins to be made and there\\nremained no such claim for several years. Id. at 232.\\n Those facts amounted at least to a prima facie showing that Atkins was\\npreviously unavailable as required by Section 2244(b)(2)(A). Id. at 233. We\\ndid not separately analyze whether it was enough that Atkins in a generic\\nsense was a rule of constitutional law, made retroactive to cases on collateral\\nreview by the Supreme Court, even though it was not so clearly retroactive in\\nits application to Cathey. We accept that the conclusions in Cathey necessarily\\ndecided that latter point as well and move on here.\\n We see the facts relevant to Johnson to be quite similar. In 2013, six\\nyears after Johnson’s conviction, a new diagnostic manual called the DSM-5\\n 11\\n\\f Case: 19-20552 Document: 00515077003 Page: 12 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nfor mental disability was released. The new diagnostic guidelines included\\nsignificant changes in the diagnosis of intellectual disability, which changed\\nthe focus from specific IQ scores to clinical judgment. The DSM-5 recognizes\\nthat an individual with an IQ score over 70 may still qualify as intellectually\\ndisabled. The previous diagnostic manual, in effect when Johnson filed his\\ninitial federal habeas petition, did not classify Johnson as intellectually\\ndisabled because of his IQ. Further bolstering that his claim was unavailable\\nuntil now, Johnson under a current full-scale IQ testing scored 70, within the\\nAtkins range. Johnson also argues that although the DSM-5 was published\\nbefore his habeas petition was denied for the first time in federal court, the\\nDSM-5 was published only 17 days before the denial, which renders his claim\\nnot feasible as an amendment to his first petition.\\n The State’s principal argument about Cathey is that it was “effectively\\noverruled by the Supreme Court in in Shoop v. Hill, 139 S. Ct. 504, 507-08\\n(2019) (per curiam).” The court in Cathey relied significantly on Moore in\\nevaluating the prima facie showing of Cathey’s intellectual disability. In re\\nCathey, 857 F.3d at 234-36. The Supreme Court in Moore had reviewed a Texas\\nCourt of Criminal Appeals decision which had not applied updated medical\\nstandards in evaluating an Atkins claim. Moore, 137 S. Ct. at 1053. Later, the\\nSupreme Court in Shoop determined that Moore was not clearly established\\nlaw for the purposes of deciding whether a state court, whose decision was\\nreached before Moore was decided, had unreasonably applied established law\\nto a habeas claim. Shoop, 139 S. Ct. at 507-08 (citing 28 U.S.C. § 2254(d)(1)).\\nShoop, which concerns the relitigation bar of Section 2254(d)(1), did not\\noverrule Cathey, which concerns a prima facie showing under Section 2244.\\n The State gives us little else on which to evaluate Cathey. Its sole\\nsecondary argument is an effort to distinguish the present case from Cathey\\n 12\\n\\f Case: 19-20552 Document: 00515077003 Page: 13 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nfor these reasons: Cathey’s conviction was final before Atkins was decided,\\nwhile Johnson committed his crimes after Atkins was decided; by the time\\nCathey was seeking Section 2254 relief, Atkins had been decided but it was\\nunclear how to present the claim, uncertainties that did not apply to Johnson’s\\ninitial pursuit of federal habeas; and Cathey showed greater diligence in\\nbringing the Atkins claim than did Johnson. We cannot say these distinctions\\nresolve this case in the State’s favor. The central problem here is that both the\\ncounsel for Cathey and now the one for Johnson were presented — after all the\\nevents which the State argues are distinctions — with reasons that made an\\nAtkins claim possibly meritorious when it had not previously been. The State\\nseemingly recognizes that central problem, as after describing the ostensible\\ndistinctions, it returns to the argument that Cathey has been overruled by\\nShoop.\\n What opens the door for Johnson is the Cathey decision, which has\\nprecedentially determined that it is correct to equate legal availability with\\nchanges in the standards for psychiatric evaluation of the key intellectual\\ndisability factual issues raised by Atkins. We are applying that decision to a\\nnew, but not meaningfully distinguishable, set of facts.\\n\\n B. Prima facie showing of disability\\n The requirement of a prima facie showing comes from Section\\n2244(b)(3)(C). Part of the showing is not only that his claim relies on\\nretroactive Supreme Court precedent that was previously unavailable, but also\\na prima facie showing that his claim has merit. See In re Cathey, 857 F.3d at\\n226. To be intellectually disabled, an individual must establish intellectual-\\nfunctioning deficits, adaptive deficits, and onset of those deficits when the\\nindividual is a minor. See id. at 235. Dr. Daniel Martell concluded after\\nextensive evaluation of Johnson, including IQ scores, neuropsychological\\n 13\\n\\f Case: 19-20552 Document: 00515077003 Page: 14 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\ntesting, and interviews with witnesses and Johnson that Johnson has deficits\\nin intellectual functioning. This is “confirmed by his IQ score of 70 on the\\nWAIS-IV, IQ scores from tests administered pretrial, and the clear cognitive\\ndeficits displayed on multiple neuropsychological tests.” Dr. Martell concluded\\nalso that Johnson is at or below the bottom two percent of the population with\\nregard to verbal learning and memory, that Johnson has frontal lobe\\nimpairment, and that he has right hemisphere brain dysfunction.\\nFurthermore, Dr. Watson, the trial expert, averred that he would no longer\\ntestify that Johnson is not intellectually disabled based on Johnson’s IQ test\\nscores from that time.\\n Dr. Martell also concluded that Johnson exhibited deficits in all three\\ndomains of adaptive functioning. Johnson repeated the second grade and\\nstruggled with reading comprehension and problem solving. He also struggled\\nto articulate words. In high school, Johnson functioned at the sixth-grade\\nlevel. Johnson also exhibited deficits in the social domain, as he struggled to\\nmake friends, was immature compared to peers, could not make eye contact,\\ncould not hold a conversation, struggled to control his emotions, and could not\\nread the emotions of others. Johnson’s deficiency in the practical domain was\\nevidenced by his inability to follow bus or walking directions, struggles with\\npersonal hygiene, and inability to manage money or his own affairs.\\n Finally, Dr. Martell concluded that the onset of Johnson’s disability was\\nduring the developmental period, through witness declarations, trial\\ntestimony, and records.\\n The State contends that we must review whether the Texas Court of\\nCriminal Appeals “unreasonably determined that the facts set forth in\\n[applicant]’s petition, if true, would not establish by clear and convincing\\nevidence that no rational factfinder would fail to find [applicant] intellectually\\n 14\\n\\f Case: 19-20552 Document: 00515077003 Page: 15 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\ndisabled.” Busby v. Davis, 925 F.3d 699, 716 (5th Cir. 2019). The State\\ncontends Johnson’s application here lacks merit because we should defer to the\\nTexas Court of Criminal Appeals’ decisions. There are actually two state court\\ndenials of Johnson’s Atkins claim. One was on April 29, 2019, the other on\\nAugust 13, 2019. Both orders from the Court of Criminal Appeals stated that\\nthe court dismissed the “application as an abuse of the writ without reviewing\\nthe merits of the claims raised.” Both orders post-date Moore.\\n Whether the decisions were on the merits is affected by recent caselaw\\nthat recasts a similarly-phrased Texas decision as a merits one “when a\\ndefendant who was convicted post-Atkins raises an Atkins claim for the first\\ntime in a successive habeas application[; that is because] the Texas court must\\ndetermine whether the defendant has asserted facts, which if true, would\\nsufficiently state an Atkins claim to permit consideration of the successive\\npetition.” Busby, 925 F.3d at 707. We understand the Busby court to be\\nreferring to the analysis the Texas court is to undertake in considering a\\nsuccessive application under Texas Code of Criminal Procedure article 11.071,\\nsection 5(a), and labeling that as merits-based. Regardless of what the best\\nreading of Busby may be, the initial decision in this case is for the district court.\\n We now consider whether Johnson must overcome the relitigation bar of\\nSection 2254(d). Section 2244(b)(3)(C) states that a court “may authorize the\\nfiling of a second or successive application only if it determines that the\\napplication makes a prima facie showing that the application satisfies the\\nrequirements of this subsection.” It makes no mention of Section 2254(d),\\nwhich is in a different subsection. In re Cathey discussed this issue. 857 F.3d\\nat 236. It recognized that Cathey’s Atkins claim was previously brought in a\\nsuccessive habeas petition before the state court, but the court did not analyze\\nthe relitigation bar of Section 2254(d) in making its Section 2244 analysis. Id.\\n 15\\n\\f Case: 19-20552 Document: 00515077003 Page: 16 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nWe held that “the state court findings concerning the Atkins claim are wholly\\nirrelevant to our inquiry as to whether [the petitioner] has made a prima facie\\nshowing of entitlement to proceed with his federal habeas application, which is\\nan inquiry distinct from the burden that [the petitioner] must bear in proving\\nhis claim in the district court.” Id. (alteration in original) (quoting In re Wilson,\\n442 F.3d 872, 878 (5th Cir. 2006)). We therefore conclude that Johnson is not\\nrequired at this stage to address the Texas court’s decisions.\\n Having determined that Johnson at this stage is not required to show\\nthat the state court unreasonably determined the facts, we find that Johnson\\nhas at least made a prima facie showing of intellectual disability.\\n\\n C. Timeliness\\n Johnson also must show that his application is timely. There is a one-\\nyear statute of limitations on applications for a writ of habeas corpus running\\nfrom the latest of:\\n (A) the date on which the judgment became final by the conclusion\\n of direct review or the expiration of the time for seeking such\\n review;\\n (B) the date on which the impediment to filing an application\\n created by State action in violation of the Constitution or laws of\\n the United States is removed, if the applicant was prevented from\\n filing by such State action;\\n (C) the date on which the constitutional right asserted was initially\\n recognized by the Supreme Court, if the right has been newly\\n recognized by the Supreme Court and made retroactively\\n applicable to cases on collateral review; or\\n (D) the date on which the factual predicate of the claim or claims\\n presented could have been discovered through the exercise of due\\n diligence.\\n28 U.S.C. § 2244(d)(1).\\n\\n\\n\\n 16\\n\\f Case: 19-20552 Document: 00515077003 Page: 17 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n Johnson devotes his argument to the equitable tolling of the statute of\\nlimitations, which he claims began to run on the date which the factual\\npredicate of the claim or claims presented could have been discovered through\\nthe exercise of due diligence. § 2244(d)(1)(D). The date that factual predicate\\nbecame available was the publication of the DSM-5, which was on May 18,\\n2013. As that does not meet the one-year statute of limitations, Johnson\\nargues that he is entitled to equitable tolling under Holland v. Florida, 560\\nU.S. 631, 649 (2010). “To establish his entitlement to equitable tolling, a\\npetitioner must ‘sho[w] (1) that he has been pursuing his rights diligently, and\\n(2) that some extraordinary circumstances stood in his way and prevented\\ntimely filing.’” Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012) (quoting\\nHolland, 560 U.S. at 649). As to diligence, Johnson claims that he was diligent\\nin seeking counsel that was not conflicted. He requested, pro se, conflict-free\\ncounsel once he was aware of the conflict. He has also filed this motion within\\nsix months of appointment of conflict-free counsel.\\n Johnson argues that the conflicts of his counsel were the extraordinary\\ncircumstances sufficient to justify his delay. The Supreme Court held that “at\\nleast sometimes, professional misconduct that fails to meet [a circuit court’s]\\nstandard could nonetheless amount to egregious behavior and create an\\nextraordinary circumstance that warrants equitable tolling.” Holland, 560\\nU.S. at 651. Johnson also argues that equitable tolling is best decided at an\\nevidentiary hearing because of its fact-bound nature. “[W]e also recognize the\\nprudence, when faced with an equitable, often fact-intensive inquiry, of\\nallowing the lower courts to undertake it in the first instance.” Id. at 654\\n(quotation marks and citation omitted).\\n Similarly, we have held that questions of equitable tolling are best left\\nto the district court for the initial analysis. In re Cathey, 857 F.3d at 240-41.\\n 17\\n\\f Case: 19-20552 Document: 00515077003 Page: 18 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nWe stated that the delay there gave us pause but determined further factual\\ndevelopment was needed. Id. The district court is better positioned than are\\nwe to determine the timeliness of Johnson’s motion for a successive application.\\n Having found that Johnson has at this stage made a prima facie showing\\nthat his successive petition satisfies 28 U.S.C. § 2244(b)(2)(A), we GRANT\\nJohnson’s motion for authorization and STAY the execution.\\n\\n\\n\\n\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4425958/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SOUTHWICK"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648705/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In RE: Dexter JOHNSON, Movant Dexter Johnson, Petitioner - Appellant v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 19-20552 Document: 00515077003 Page: 1 Date Filed: 08/14/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 19-20552 August 14, 2019\n Lyle W. Cayce\nIn re: DEXTER JOHNSON, Clerk\n\n\n Movant\n--------------------------------------------------------------\nConsolidated with 19-70013\n\nDEXTER JOHNSON,\n\n Petitioner - Appellant\n\nv.\n\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\n\n Respondent - Appellee\n\n\n\n\n Appeals from the United States District Court\n for the Southern District of Texas\n\n\nBefore SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n FACTUAL AND PROCEDURAL BACKGROUND\n Dexter Johnson was convicted of the murder of Maria Aparece in the\ncourse of committing attempted robbery on June 13, 2007, and was sentenced\nto death. Far greater detail is given of the offense in Johnson v. Stephens, 617\n\f Case: 19-20552 Document: 00515077003 Page: 2 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nF. App’x 293 (5th Cir. 2015). His conviction and sentence were affirmed on\ndirect appeal.\n Johnson was appointed state habeas counsel, Patrick McCann. Johnson\nfiled a state application for writ of habeas corpus while his direct appeal was\npending. His state habeas claims were denied, and McCann did not raise an\nineffective assistance of trial counsel (IATC) claim. That application also did\nnot include an Atkins v. Virginia, 536 U.S. 304 (2002), claim. McCann\ncontinued to represent Johnson in federal habeas proceedings, filing an\napplication one year later that was duplicative of the state habeas claims, plus\none claim that Johnson was interrogated in violation of Edwards v. Arizona,\n451 U.S. 477 (1981). It also did not include an Atkins claim.\n After Martinez v. Ryan, 566 U.S. 1 (2012), was decided, McCann filed a\nmotion to stay and to abey Johnson’s proceeding to allow exhaustion of his\nIATC claims or to amend his application under Martinez to add those claims.\nThat claim alleged that trial counsel were ineffective for failing to present\nevidence of Johnson’s brain damage and mental illness during the guilt phase\nto show he could not form intent for murder and that appeal counsel were\nineffective for failing to raise IATC claims.\n The district court ordered supplemental briefing on Trevino v. Thaler,\n569 U.S. 413 (2013), and ultimately denied Johnson’s motion to stay and abey\nor amend the federal application and Johnson’s request for habeas relief. The\ndistrict court granted a COA on Johnson’s claim that his custodial statement\nwas admitted in violation of his Fifth Amendment rights. We then affirmed\nthe denial of habeas relief on his Fifth Amendment claim and denied an\nadditional request for a COA. Johnson, 617 F. App’x at 305. Johnson sought\nSupreme Court review, which was denied. Johnson v. Stephens, 136 S. Ct. 980\n(2016).\n 2\n\f Case: 19-20552 Document: 00515077003 Page: 3 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\n On June 4, 2017, Johnson filed a motion in the federal district court\nrequesting a new trial. The court denied the motion and his motion for\nreconsideration. Johnson requested a COA, which was denied by this court.\nJohnson v. Davis, 746 F. App’x 375, 381 (5th Cir. 2018) (per curiam). The\nSupreme Court again denied him a writ of certiorari.\n On January 18, 2019, Johnson, pro se, requested a Federal Public\nDefender (FPD) be appointed in his case because of the conflict of interest\nbetween himself and McCann established after Martinez and Trevino.\nMcCann filed an opposition under seal. Johnson then filed a pro se motion on\nFebruary 1, 2019, again asking for independent counsel. On February 5, 2019,\nthe court appointed a FPD, but kept McCann’s appointment. The FPD\nrequested removal of McCann, which was opposed by the State and McCann.\n Six days after the motion to remove McCann, McCann filed a single-issue\nsuccessive habeas application in state court, which was denied April 29, 2019.\nMcCann also filed a clemency petition. On April 30, 2019, the district court\nstayed Johnson’s execution, noting “troubling concerns” about McCann.\nMcCann withdrew two days later.\n On June 24, 2019 Johnson filed a motion for relief from judgment\npursuant to Federal Rule of Civil Procedure 60(b). The district court denied\nthe motion on August 12, 2019.\n On August 6, 2019, Johnson moved to strike his second successive state\nhabeas application, alleging that it was filed by McCann without his\npermission. He also filed a successive habeas application with the motion to\nstrike on the same day. This motion was denied “as an abuse of the writ\nwithout reviewing the merits of the claims raised” on August 13, 2019.\n\n\n\n\n 3\n\f Case: 19-20552 Document: 00515077003 Page: 4 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\n Separately, Johnson moved in this court for an order authorizing the\ndistrict court to consider a second or successive application for a writ of habeas\ncorpus under 28 U.S.C. § 2244 based on an Atkins claim on August 8, 2019.\n Before us now are Johnson’s Motion for a Certificate of Appealability\n(COA) relating to the district court’s denial of relief under Rule 60(b) and also\nJohnson’s motion for an order authorizing a successive application for habeas\ncorpus. We address Johnson’s motion for a COA first.\n\n\n DISCUSSION\nI. Motion for COA on Rule 60(b)\n “At the COA stage, the only question is whether the applicant has shown\nthat ‘jurists of reason could disagree with the district court’s resolution of his\nconstitutional claims or that jurists could conclude the issues presented are\nadequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S.\nCt. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).\nThis court reviews the district court’s order denying a Rule 60(b) motion for an\nabuse of discretion, so on a COA this court must determine whether reasonable\njurists could conclude the district court abused its discretion. Id. at 777. While\na full merits inquiry is not proper in the COA analysis, we conduct a threshold\ninquiry to determine if the district court’s decision was debatable. Id. at 774.\n “[R]elief under Rule 60(b)(6) is available only in ‘extraordinary\ncircumstances.’” Id. at 777 (quoting Gonzales v. Crosby, 545 U.S. 524, 535\n(2005)). Extraordinary circumstances “will rarely occur in the habeas context.”\nGonzalez, 545 U.S. at 535. The district court is permitted to consider a “wide\nrange of factors” in determining whether extraordinary circumstances are\npresent. Buck, 137 S. Ct. at 778. “These may include, in an appropriate case,\n‘the risk of injustice to the parties’ and ‘the risk of undermining the public’s\n 4\n\f Case: 19-20552 Document: 00515077003 Page: 5 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nconfidence in the judicial process.’” Id. (quoting Liljeberg v. Health Servs.\nAcquisition Corp., 486 U.S. 847, 863-64 (1988)). “Moreover, a Rule 60(b)(6)\nmovant must show that he can assert ‘a good claim or defense’ if his case is\nreopened.” Ramirez v. Davis, 19-70004, 2019 WL 2622147, at *6 (5th Cir. June\n26, 2019) (quoting Buck, 137 S. Ct. at 780).\n The district court concluded that Johnson’s motion was a “true” Rule\n60(b) motion because it attacked a defect in the integrity of the federal habeas\nproceeding and did not “seek[] to add a new ground for relief’ or ‘attack[] the\nfederal court’s previous resolution of a claim on the merits,’” which “is the\n‘functional equivalent of [an] unauthorized successive § 2254 petition[].’”\nQuoting Gilkers v. Vannoy, 904 F.3d 336, 344 (5th Cir. 2018). That defect was\nMcCann’s deficient performance and conflicts of interest. We do not find that\njurists of reason would conclude that the district court abused its discretion in\nfinding Johnson’s motion to be a true Rule 60(b) motion.\n The district court also determined that Johnson’s motion was timely\nbecause newly appointed counsel filed the motion within six months after\nappointment as co-counsel and very shortly after original habeas counsel was\nremoved. The question of timeliness is based on the “facts and circumstances\nof the case.” Ramirez, 2019 WL 2622147, at *5 (quotation omitted).\n Johnson challenges here the district court’s denial of his Rule 60(b)\nmotion based on its finding that there were not extraordinary circumstances\njustifying reopening the judgment. The district court determined that Johnson\nhad properly alleged a defect in the integrity of his proceeding but concluded\nthat he had failed to demonstrate extraordinary circumstances, basing its\nopinion primarily on Johnson’s failure to plead any meritorious defaulted IATC\nclaims. Johnson claims that the district court unnecessarily narrowed the wide\nrange of factors that should have been considered, focusing only on whether\n 5\n\f Case: 19-20552 Document: 00515077003 Page: 6 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nJohnson described a meritorious IATC claim that was defaulted and whether\nJohnson had pled that his federal habeas proceeding was deficient.\n Johnson claims that under the COA standard, jurists of reason could\ndebate whether the district court abused its discretion in concluding that\nJohnson failed to demonstrate extraordinary circumstances because he did not\nplead the merits of a defaulted IATC claim. Johnson argues that the question\nunder Rule 60(b) is not whether there is a meritorious habeas claim if he was\nrepresented by conflict-free counsel, but whether his previous counsel\nMcCann’s performance was so deficient that he failed to provide the quality of\nrepresentation that 18 U.S.C. § 3599 guarantees. Johnson’s claim is that\nMcCann’s representation fell so far below the standards of Section 3599 that\nhis case presents extraordinary circumstances.\n Johnson also claims that the district court, which based its decision on\nthe lack of any debatable defaulted IATC claim, has placed habeas applicants\nin an impossible situation. Johnson argues that requiring him to identify and\nlitigate the substantive merit and procedural defenses of defaulted IATC\nclaims would effectively require Mr. Johnson to transform his Rule 60(b)\nmotion into a successive petition.\n Finally, Johnson argues that reasonable jurists could debate whether the\ndistrict court abused its discretion by failing to address McCann’s ethical\nviolations. Johnson claims that McCann violated multiple ethical rules,\nincluding the duty of candor for not explaining his conflict of interest and the\nduty of loyalty for not remedying the conflict.\n Responding to these arguments, we point out that having conflicted\ncounsel is not enough to obtain relief under Rule 60(b). See Raby v. Davis, 907\nF.3d 880, 884 (5th Cir. 2018). The Supreme Court explained that even if it is\nshown to be debatable that state habeas counsel was constitutionally\n 6\n\f Case: 19-20552 Document: 00515077003 Page: 7 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nineffective, there is another “significant element” of a Rule 60(b)(6) motion: the\nclaim must have “some merit.” Buck, 137 S. Ct. at 780. The Court elaborated\nthat this means that the movant must show “a good claim or defense” because\nthat “is a precondition of Rule 60(b)(6) relief.” Id. (second quotation from 11\nWRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2857).\n The district court properly held that Johnson fell short on this significant\nrequirement. Current counsel mentioned a few potentially meritorious claims\nthat were previously defaulted in his reply brief but failed to brief them in any\ndetail whatsoever. The district court noted that it directed Johnson’s conflict-\nfree attorneys to “scour the record” for Strickland claims that meet the\nprerequisites for Martinez and Trevino but that there were no identified\n“procedural default[s] that would otherwise bar a federal habeas court from\nhearing a substantial claim of ineffective assistance at trial.” Jennings, 760 F.\nApp’x 319, 324 (5th Cir. 2019) (citations omitted). Our finding here is\nconsistent with Buck’s directive that we not delve too deeply into the\nunderlying merits of a claim, because none was presented. 137 S. Ct. at 774.\nFurthermore, in a deficient representation case such as this, there needed to\nbe some factor besides the representation. See Id. at 777-780 (finding that\nMartinez/Trevino was one significant element but relying in significant part on\nother circumstances such as race being a basis for the verdict). Johnson failed\nto brief these claims, and so we find that reasonable jurists would not debate\nthe district court’s decision that Johnson’s Martinez and Trevino conflict\narguments were inadequate to show exceptional circumstances.\n As to Johnson’s argument that the district court ignored his claims about\nMcCann’s alleged deficient performance, the district court stated that Rule\n60(b) relief is ordinarily not appropriate in the habeas context. Buck, 137 S.\nCt. at 777. If there were no underlying meritorious waived claims, then it can\n 7\n\f Case: 19-20552 Document: 00515077003 Page: 8 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nhardly be argued that there is a “risk of injustice” to Johnson because he did\nnot argue he would be entitled to any form of relief if his case were reopened.\nSee Liljeberg, 486 U.S. at 863-864 (cited in Buck, 137 S. Ct. at 778).\nFurthermore, in other cases where habeas counsel was deficient for omitting\ncertain claims, the Supreme Court has stated that such an attack “ordinarily\ndoes not go to the integrity of the proceedings.” Gonzales v. Crosby, 545 U.S.\nat 532 n.5. Although Johnson attempts to recast McCann’s actions as choices,\nnot omissions, the thrust of the logic still applies: McCann’s alleged deficient\nperformance was not itself sufficient to constitute exceptional circumstances.\n Reasonable jurists would not debate that the district court did not abuse\nits discretion in concluding that Johnson’s claims did not present extraordinary\ncircumstances. This is because Johnson failed to brief any waived claims\nsufficient to allow the district court to determine whether extraordinary\ncircumstances that might “risk . . . undermining the public’s confidence in the\njudicial process” were present. Liljeberg, 486 U.S. at 864. Johnson also fails\nto provide us any authority that Section 3599 has ever provided relief pursuant\nto Rule 60(b). In sum, we conclude that reasonable jurists would not debate\nthat the district court did not abuse its discretion in denying Johnson’s Rule\n60(b) motion.\n Johnson’s motion for a COA is DENIED.\n\n\nII. Motion for Successive Application\n We review an application for the filing of a successive habeas application\nto determine if the applicant makes a prima facie showing that he has met the\nrequirements of Section 2244. 28 U.S.C. § 2244(b)(3)(C). A prima facie\nshowing is “simply a sufficient showing of possible merit to warrant a fuller\n\n\n 8\n\f Case: 19-20552 Document: 00515077003 Page: 9 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nexploration by the district court.” In re Morris, 328 F.3d 739, 740 (5th Cir.\n2003) (quoting Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997)).\n A person in custody under a state-court judgment who seeks to file a\nsuccessive application for a writ of habeas corpus in federal court must satisfy\nthese requirements:\n (1) A claim presented in a second or successive habeas\n corpus application under section 2254 that was presented in a\n prior application shall be dismissed.\n (2) A claim presented in a second or successive habeas corpus\n application under section 2254 that was not presented in a prior\n application shall be dismissed unless-\n (A) the applicant shows that the claim relies on a new\n rule of constitutional law, made retroactive to cases on\n collateral review by the Supreme Court, that was previously\n unavailable; or\n (B)(i) the factual predicate for the claim could not have\n been discovered previously through the exercise of due\n diligence; and\n (ii) the facts underlying the claim, if proven and\n viewed in light of the evidence as a whole, would be sufficient\n to establish by clear and convincing evidence that, but for\n constitutional error, no reasonable factfinder would have\n found the applicant guilty of the underlying offense.\n28 U.S.C. § 2244(b).\n Johnson’s two primary arguments in support of his Atkins claim are that\nhis only recently discharged counsel had a conflict of interest because he is the\none whose ineffectiveness in state habeas needed to be challenged, and that\nrecent changes to the medical standards for determining mental disability\nbenefit him. Applying Section 2244(b)(2)(A), Johnson argues that Atkins is a\nnew rule of constitutional law that is retroactive and that his claim was\n\n\n\n 9\n\f Case: 19-20552 Document: 00515077003 Page: 10 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\npreviously unavailable because the latest professional diagnostic manual\nchanged the framework for intellectual disability. 1\n At trial, Johnson was found not to be intellectually disabled. This was\nunder an earlier professional manual, DSM-IV-TR, which relied on Johnson’s\nIQ score that was above 70. 2 The latest DSM-5 manual changed the diagnostic\nframework for intellectual disability. Higher IQ scores no longer bar a\ndiagnosis of an intellectual disability. Dr. Daniel A. Martell concluded that as\nof July 31, 2019, Johnson “meets the criteria for a diagnosis of Intellectual\nDisability” under the DSM-5. In 2019, Johnson scored 70 on a full-scale WAIS-\nIV IQ test.\n First, Johnson must show that his claim was not presented in a prior\nfederal application. 28 U.S.C. § 2244(b)(1). The State concedes that he did not.\nThus, Johnson has met the requirements of Section 2244(b)(1).\n Second, “Atkins created a new rule of constitutional law . . . made\nretroactive to cases on collateral review by the Supreme Court.” In re\nCampbell, 750 F.3d 523, 530 (5th Cir. 2014). As is obvious, though, Atkins was\ndecided long before Johnson even committed his crimes. A meaningful hurdle\nfor Johnson is to demonstrate why we should consider that case to be\nretroactive as to him. The State argues that it is not. We hold to the contrary,\ncounterintuitively perhaps, but not unreasonably, with the full weight of our\n\n\n\n\n 1 Johnson also argues that his claim satisfies Section 2244(b)(2)(B), dealing with the\nfactual predicates for his claims, but we need not, and do not, discuss that argument.\n 2 The manuals express current medical standards for defining intellectual disability.\n\n“Reflecting improved understanding over time, . . . current manuals offer ‘the best available\ndescription of how mental disorders are expressed and can be recognized by trained\nclinicians.’” Moore v. Texas, 137 S. Ct. 1039, 1053 (2017) (quoting the DSM-5 and noting that\ncurrent medical standards constrain a state’s definition of what is an intellectual disability).\n 10\n\f Case: 19-20552 Document: 00515077003 Page: 11 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nconclusion being borne by this court’s recent decision in In re Cathey, 857 F.3d\n221 (5th Cir. 2017). We discuss that case next.\n\n A. Claim was previously unavailable\n We analyze whether Johnson’s “claim relies on a new rule of\nconstitutional law, made retroactive to cases on collateral review by the\nSupreme Court, that was previously unavailable.” § 2244(b)(2)(A). In the\nCathey precedent on which we rely, the applicant’s IQ initially was thought to\nbe too high for intellectual disability. In re Cathey, 857 F.3d at 230. Upon his\nadmission to prison, which was pre-Atkins, an IQ test was given to him that\nsupported that his IQ was within the range for sufficient mental disability to\nbe exempt from the death penalty. Id. at 232. For reasons that were disputed,\nthe documents for that test did not become available to the inmate and counsel\nuntil 12 years after his conviction. Id. In addition, it was 6 years after Cathey’s\nconviction that a litigation theory bearing on the accuracy of IQ scores called\nthe Flynn Effect was recognized by courts. Id. at 227, 229-33. Thus, when\nCathey filed his initial state and federal habeas applications, there was not a\nclaim “with some possibility of merit” under Atkins to be made and there\nremained no such claim for several years. Id. at 232.\n Those facts amounted at least to a prima facie showing that Atkins was\npreviously unavailable as required by Section 2244(b)(2)(A). Id. at 233. We\ndid not separately analyze whether it was enough that Atkins in a generic\nsense was a rule of constitutional law, made retroactive to cases on collateral\nreview by the Supreme Court, even though it was not so clearly retroactive in\nits application to Cathey. We accept that the conclusions in Cathey necessarily\ndecided that latter point as well and move on here.\n We see the facts relevant to Johnson to be quite similar. In 2013, six\nyears after Johnson’s conviction, a new diagnostic manual called the DSM-5\n 11\n\f Case: 19-20552 Document: 00515077003 Page: 12 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nfor mental disability was released. The new diagnostic guidelines included\nsignificant changes in the diagnosis of intellectual disability, which changed\nthe focus from specific IQ scores to clinical judgment. The DSM-5 recognizes\nthat an individual with an IQ score over 70 may still qualify as intellectually\ndisabled. The previous diagnostic manual, in effect when Johnson filed his\ninitial federal habeas petition, did not classify Johnson as intellectually\ndisabled because of his IQ. Further bolstering that his claim was unavailable\nuntil now, Johnson under a current full-scale IQ testing scored 70, within the\nAtkins range. Johnson also argues that although the DSM-5 was published\nbefore his habeas petition was denied for the first time in federal court, the\nDSM-5 was published only 17 days before the denial, which renders his claim\nnot feasible as an amendment to his first petition.\n The State’s principal argument about Cathey is that it was “effectively\noverruled by the Supreme Court in in Shoop v. Hill, 139 S. Ct. 504, 507-08\n(2019) (per curiam).” The court in Cathey relied significantly on Moore in\nevaluating the prima facie showing of Cathey’s intellectual disability. In re\nCathey, 857 F.3d at 234-36. The Supreme Court in Moore had reviewed a Texas\nCourt of Criminal Appeals decision which had not applied updated medical\nstandards in evaluating an Atkins claim. Moore, 137 S. Ct. at 1053. Later, the\nSupreme Court in Shoop determined that Moore was not clearly established\nlaw for the purposes of deciding whether a state court, whose decision was\nreached before Moore was decided, had unreasonably applied established law\nto a habeas claim. Shoop, 139 S. Ct. at 507-08 (citing 28 U.S.C. § 2254(d)(1)).\nShoop, which concerns the relitigation bar of Section 2254(d)(1), did not\noverrule Cathey, which concerns a prima facie showing under Section 2244.\n The State gives us little else on which to evaluate Cathey. Its sole\nsecondary argument is an effort to distinguish the present case from Cathey\n 12\n\f Case: 19-20552 Document: 00515077003 Page: 13 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nfor these reasons: Cathey’s conviction was final before Atkins was decided,\nwhile Johnson committed his crimes after Atkins was decided; by the time\nCathey was seeking Section 2254 relief, Atkins had been decided but it was\nunclear how to present the claim, uncertainties that did not apply to Johnson’s\ninitial pursuit of federal habeas; and Cathey showed greater diligence in\nbringing the Atkins claim than did Johnson. We cannot say these distinctions\nresolve this case in the State’s favor. The central problem here is that both the\ncounsel for Cathey and now the one for Johnson were presented — after all the\nevents which the State argues are distinctions — with reasons that made an\nAtkins claim possibly meritorious when it had not previously been. The State\nseemingly recognizes that central problem, as after describing the ostensible\ndistinctions, it returns to the argument that Cathey has been overruled by\nShoop.\n What opens the door for Johnson is the Cathey decision, which has\nprecedentially determined that it is correct to equate legal availability with\nchanges in the standards for psychiatric evaluation of the key intellectual\ndisability factual issues raised by Atkins. We are applying that decision to a\nnew, but not meaningfully distinguishable, set of facts.\n\n B. Prima facie showing of disability\n The requirement of a prima facie showing comes from Section\n2244(b)(3)(C). Part of the showing is not only that his claim relies on\nretroactive Supreme Court precedent that was previously unavailable, but also\na prima facie showing that his claim has merit. See In re Cathey, 857 F.3d at\n226. To be intellectually disabled, an individual must establish intellectual-\nfunctioning deficits, adaptive deficits, and onset of those deficits when the\nindividual is a minor. See id. at 235. Dr. Daniel Martell concluded after\nextensive evaluation of Johnson, including IQ scores, neuropsychological\n 13\n\f Case: 19-20552 Document: 00515077003 Page: 14 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\ntesting, and interviews with witnesses and Johnson that Johnson has deficits\nin intellectual functioning. This is “confirmed by his IQ score of 70 on the\nWAIS-IV, IQ scores from tests administered pretrial, and the clear cognitive\ndeficits displayed on multiple neuropsychological tests.” Dr. Martell concluded\nalso that Johnson is at or below the bottom two percent of the population with\nregard to verbal learning and memory, that Johnson has frontal lobe\nimpairment, and that he has right hemisphere brain dysfunction.\nFurthermore, Dr. Watson, the trial expert, averred that he would no longer\ntestify that Johnson is not intellectually disabled based on Johnson’s IQ test\nscores from that time.\n Dr. Martell also concluded that Johnson exhibited deficits in all three\ndomains of adaptive functioning. Johnson repeated the second grade and\nstruggled with reading comprehension and problem solving. He also struggled\nto articulate words. In high school, Johnson functioned at the sixth-grade\nlevel. Johnson also exhibited deficits in the social domain, as he struggled to\nmake friends, was immature compared to peers, could not make eye contact,\ncould not hold a conversation, struggled to control his emotions, and could not\nread the emotions of others. Johnson’s deficiency in the practical domain was\nevidenced by his inability to follow bus or walking directions, struggles with\npersonal hygiene, and inability to manage money or his own affairs.\n Finally, Dr. Martell concluded that the onset of Johnson’s disability was\nduring the developmental period, through witness declarations, trial\ntestimony, and records.\n The State contends that we must review whether the Texas Court of\nCriminal Appeals “unreasonably determined that the facts set forth in\n[applicant]’s petition, if true, would not establish by clear and convincing\nevidence that no rational factfinder would fail to find [applicant] intellectually\n 14\n\f Case: 19-20552 Document: 00515077003 Page: 15 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\ndisabled.” Busby v. Davis, 925 F.3d 699, 716 (5th Cir. 2019). The State\ncontends Johnson’s application here lacks merit because we should defer to the\nTexas Court of Criminal Appeals’ decisions. There are actually two state court\ndenials of Johnson’s Atkins claim. One was on April 29, 2019, the other on\nAugust 13, 2019. Both orders from the Court of Criminal Appeals stated that\nthe court dismissed the “application as an abuse of the writ without reviewing\nthe merits of the claims raised.” Both orders post-date Moore.\n Whether the decisions were on the merits is affected by recent caselaw\nthat recasts a similarly-phrased Texas decision as a merits one “when a\ndefendant who was convicted post-Atkins raises an Atkins claim for the first\ntime in a successive habeas application[; that is because] the Texas court must\ndetermine whether the defendant has asserted facts, which if true, would\nsufficiently state an Atkins claim to permit consideration of the successive\npetition.” Busby, 925 F.3d at 707. We understand the Busby court to be\nreferring to the analysis the Texas court is to undertake in considering a\nsuccessive application under Texas Code of Criminal Procedure article 11.071,\nsection 5(a), and labeling that as merits-based. Regardless of what the best\nreading of Busby may be, the initial decision in this case is for the district court.\n We now consider whether Johnson must overcome the relitigation bar of\nSection 2254(d). Section 2244(b)(3)(C) states that a court “may authorize the\nfiling of a second or successive application only if it determines that the\napplication makes a prima facie showing that the application satisfies the\nrequirements of this subsection.” It makes no mention of Section 2254(d),\nwhich is in a different subsection. In re Cathey discussed this issue. 857 F.3d\nat 236. It recognized that Cathey’s Atkins claim was previously brought in a\nsuccessive habeas petition before the state court, but the court did not analyze\nthe relitigation bar of Section 2254(d) in making its Section 2244 analysis. Id.\n 15\n\f Case: 19-20552 Document: 00515077003 Page: 16 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nWe held that “the state court findings concerning the Atkins claim are wholly\nirrelevant to our inquiry as to whether [the petitioner] has made a prima facie\nshowing of entitlement to proceed with his federal habeas application, which is\nan inquiry distinct from the burden that [the petitioner] must bear in proving\nhis claim in the district court.” Id. (alteration in original) (quoting In re Wilson,\n442 F.3d 872, 878 (5th Cir. 2006)). We therefore conclude that Johnson is not\nrequired at this stage to address the Texas court’s decisions.\n Having determined that Johnson at this stage is not required to show\nthat the state court unreasonably determined the facts, we find that Johnson\nhas at least made a prima facie showing of intellectual disability.\n\n C. Timeliness\n Johnson also must show that his application is timely. There is a one-\nyear statute of limitations on applications for a writ of habeas corpus running\nfrom the latest of:\n (A) the date on which the judgment became final by the conclusion\n of direct review or the expiration of the time for seeking such\n review;\n (B) the date on which the impediment to filing an application\n created by State action in violation of the Constitution or laws of\n the United States is removed, if the applicant was prevented from\n filing by such State action;\n (C) the date on which the constitutional right asserted was initially\n recognized by the Supreme Court, if the right has been newly\n recognized by the Supreme Court and made retroactively\n applicable to cases on collateral review; or\n (D) the date on which the factual predicate of the claim or claims\n presented could have been discovered through the exercise of due\n diligence.\n28 U.S.C. § 2244(d)(1).\n\n\n\n 16\n\f Case: 19-20552 Document: 00515077003 Page: 17 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\n Johnson devotes his argument to the equitable tolling of the statute of\nlimitations, which he claims began to run on the date which the factual\npredicate of the claim or claims presented could have been discovered through\nthe exercise of due diligence. § 2244(d)(1)(D). The date that factual predicate\nbecame available was the publication of the DSM-5, which was on May 18,\n2013. As that does not meet the one-year statute of limitations, Johnson\nargues that he is entitled to equitable tolling under Holland v. Florida, 560\nU.S. 631, 649 (2010). “To establish his entitlement to equitable tolling, a\npetitioner must ‘sho[w] (1) that he has been pursuing his rights diligently, and\n(2) that some extraordinary circumstances stood in his way and prevented\ntimely filing.’” Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012) (quoting\nHolland, 560 U.S. at 649). As to diligence, Johnson claims that he was diligent\nin seeking counsel that was not conflicted. He requested, pro se, conflict-free\ncounsel once he was aware of the conflict. He has also filed this motion within\nsix months of appointment of conflict-free counsel.\n Johnson argues that the conflicts of his counsel were the extraordinary\ncircumstances sufficient to justify his delay. The Supreme Court held that “at\nleast sometimes, professional misconduct that fails to meet [a circuit court’s]\nstandard could nonetheless amount to egregious behavior and create an\nextraordinary circumstance that warrants equitable tolling.” Holland, 560\nU.S. at 651. Johnson also argues that equitable tolling is best decided at an\nevidentiary hearing because of its fact-bound nature. “[W]e also recognize the\nprudence, when faced with an equitable, often fact-intensive inquiry, of\nallowing the lower courts to undertake it in the first instance.” Id. at 654\n(quotation marks and citation omitted).\n Similarly, we have held that questions of equitable tolling are best left\nto the district court for the initial analysis. In re Cathey, 857 F.3d at 240-41.\n 17\n\f Case: 19-20552 Document: 00515077003 Page: 18 Date Filed: 08/14/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nWe stated that the delay there gave us pause but determined further factual\ndevelopment was needed. Id. The district court is better positioned than are\nwe to determine the timeliness of Johnson’s motion for a successive application.\n Having found that Johnson has at this stage made a prima facie showing\nthat his successive petition satisfies 28 U.S.C. § 2244(b)(2)(A), we GRANT\nJohnson’s motion for authorization and STAY the execution.\n\n\n\n\n 18\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In RE: Dexter JOHNSON, Movant Dexter Johnson, Petitioner - Appellant v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-14\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 19-20552 Document: 00515077003 Page: 1 Date Filed: 08/14/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 19-20552 August 14, 2019\\n Lyle W. Cayce\\nIn re: DEXTER JOHNSON, Clerk\\n\\n\\n Movant\\n--------------------------------------------------------------\\nConsolidated with 19-70013\\n\\nDEXTER JOHNSON,\\n\\n Petitioner - Appellant\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent - Appellee\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Dexter Johnson was convicted of the murder of Maria Aparece in the\\ncourse of committing attempted robbery on June 13, 2007, and was sentenced\\nto death. Far greater detail is given of the offense in Johnson v. Stephens, 617\\n\\f Case: 19-20552 Document: 00515077003 Page: 2 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nF. App’x 293 (5th Cir. 2015). His conviction and sentence were affirmed on\\ndirect appeal.\\n Johnson was appointed state habeas counsel, Patrick McCann. Johnson\\nfiled a state application for writ of habeas corpus while his direct appeal was\\npending. His state habeas claims were denied, and McCann did not raise an\\nineffective assistance of trial counsel (IATC) claim. That application also did\\nnot include an Atkins v. Virginia, 536 U.S. 304 (2002), claim. McCann\\ncontinued to represent Johnson in federal habeas proceedings, filing an\\napplication one year later that was duplicative of the state habeas claims, plus\\none claim that Johnson was interrogated in violation of Edwards v. Arizona,\\n451 U.S. 477 (1981). It also did not include an Atkins claim.\\n After Martinez v. Ryan, 566 U.S. 1 (2012), was decided, McCann filed a\\nmotion to stay and to abey Johnson’s proceeding to allow exhaustion of his\\nIATC claims or to amend his application under Martinez to add those claims.\\nThat claim alleged that trial counsel were ineffective for failing to present\\nevidence of Johnson’s brain damage and mental illness during the guilt phase\\nto show he could not form intent for murder and that appeal counsel were\\nineffective for failing to raise IATC claims.\\n The district court ordered supplemental briefing on Trevino v. Thaler,\\n569 U.S. 413 (2013), and ultimately denied Johnson’s motion to stay and abey\\nor amend the federal application and Johnson’s request for habeas relief. The\\ndistrict court granted a COA on Johnson’s claim that his custodial statement\\nwas admitted in violation of his Fifth Amendment rights. We then affirmed\\nthe denial of habeas relief on his Fifth Amendment claim and denied an\\nadditional request for a COA. Johnson, 617 F. App’x at 305. Johnson sought\\nSupreme Court review, which was denied. Johnson v. Stephens, 136 S. Ct. 980\\n(2016).\\n 2\\n\\f Case: 19-20552 Document: 00515077003 Page: 3 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n On June 4, 2017, Johnson filed a motion in the federal district court\\nrequesting a new trial. The court denied the motion and his motion for\\nreconsideration. Johnson requested a COA, which was denied by this court.\\nJohnson v. Davis, 746 F. App’x 375, 381 (5th Cir. 2018) (per curiam). The\\nSupreme Court again denied him a writ of certiorari.\\n On January 18, 2019, Johnson, pro se, requested a Federal Public\\nDefender (FPD) be appointed in his case because of the conflict of interest\\nbetween himself and McCann established after Martinez and Trevino.\\nMcCann filed an opposition under seal. Johnson then filed a pro se motion on\\nFebruary 1, 2019, again asking for independent counsel. On February 5, 2019,\\nthe court appointed a FPD, but kept McCann’s appointment. The FPD\\nrequested removal of McCann, which was opposed by the State and McCann.\\n Six days after the motion to remove McCann, McCann filed a single-issue\\nsuccessive habeas application in state court, which was denied April 29, 2019.\\nMcCann also filed a clemency petition. On April 30, 2019, the district court\\nstayed Johnson’s execution, noting “troubling concerns” about McCann.\\nMcCann withdrew two days later.\\n On June 24, 2019 Johnson filed a motion for relief from judgment\\npursuant to Federal Rule of Civil Procedure 60(b). The district court denied\\nthe motion on August 12, 2019.\\n On August 6, 2019, Johnson moved to strike his second successive state\\nhabeas application, alleging that it was filed by McCann without his\\npermission. He also filed a successive habeas application with the motion to\\nstrike on the same day. This motion was denied “as an abuse of the writ\\nwithout reviewing the merits of the claims raised” on August 13, 2019.\\n\\n\\n\\n\\n 3\\n\\f Case: 19-20552 Document: 00515077003 Page: 4 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n Separately, Johnson moved in this court for an order authorizing the\\ndistrict court to consider a second or successive application for a writ of habeas\\ncorpus under 28 U.S.C. § 2244 based on an Atkins claim on August 8, 2019.\\n Before us now are Johnson’s Motion for a Certificate of Appealability\\n(COA) relating to the district court’s denial of relief under Rule 60(b) and also\\nJohnson’s motion for an order authorizing a successive application for habeas\\ncorpus. We address Johnson’s motion for a COA first.\\n\\n\\n DISCUSSION\\nI. Motion for COA on Rule 60(b)\\n “At the COA stage, the only question is whether the applicant has shown\\nthat ‘jurists of reason could disagree with the district court’s resolution of his\\nconstitutional claims or that jurists could conclude the issues presented are\\nadequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S.\\nCt. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).\\nThis court reviews the district court’s order denying a Rule 60(b) motion for an\\nabuse of discretion, so on a COA this court must determine whether reasonable\\njurists could conclude the district court abused its discretion. Id. at 777. While\\na full merits inquiry is not proper in the COA analysis, we conduct a threshold\\ninquiry to determine if the district court’s decision was debatable. Id. at 774.\\n “[R]elief under Rule 60(b)(6) is available only in ‘extraordinary\\ncircumstances.’” Id. at 777 (quoting Gonzales v. Crosby, 545 U.S. 524, 535\\n(2005)). Extraordinary circumstances “will rarely occur in the habeas context.”\\nGonzalez, 545 U.S. at 535. The district court is permitted to consider a “wide\\nrange of factors” in determining whether extraordinary circumstances are\\npresent. Buck, 137 S. Ct. at 778. “These may include, in an appropriate case,\\n‘the risk of injustice to the parties’ and ‘the risk of undermining the public’s\\n 4\\n\\f Case: 19-20552 Document: 00515077003 Page: 5 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nconfidence in the judicial process.’” Id. (quoting Liljeberg v. Health Servs.\\nAcquisition Corp., 486 U.S. 847, 863-64 (1988)). “Moreover, a Rule 60(b)(6)\\nmovant must show that he can assert ‘a good claim or defense’ if his case is\\nreopened.” Ramirez v. Davis, 19-70004, 2019 WL 2622147, at *6 (5th Cir. June\\n26, 2019) (quoting Buck, 137 S. Ct. at 780).\\n The district court concluded that Johnson’s motion was a “true” Rule\\n60(b) motion because it attacked a defect in the integrity of the federal habeas\\nproceeding and did not “seek[] to add a new ground for relief’ or ‘attack[] the\\nfederal court’s previous resolution of a claim on the merits,’” which “is the\\n‘functional equivalent of [an] unauthorized successive § 2254 petition[].’”\\nQuoting Gilkers v. Vannoy, 904 F.3d 336, 344 (5th Cir. 2018). That defect was\\nMcCann’s deficient performance and conflicts of interest. We do not find that\\njurists of reason would conclude that the district court abused its discretion in\\nfinding Johnson’s motion to be a true Rule 60(b) motion.\\n The district court also determined that Johnson’s motion was timely\\nbecause newly appointed counsel filed the motion within six months after\\nappointment as co-counsel and very shortly after original habeas counsel was\\nremoved. The question of timeliness is based on the “facts and circumstances\\nof the case.” Ramirez, 2019 WL 2622147, at *5 (quotation omitted).\\n Johnson challenges here the district court’s denial of his Rule 60(b)\\nmotion based on its finding that there were not extraordinary circumstances\\njustifying reopening the judgment. The district court determined that Johnson\\nhad properly alleged a defect in the integrity of his proceeding but concluded\\nthat he had failed to demonstrate extraordinary circumstances, basing its\\nopinion primarily on Johnson’s failure to plead any meritorious defaulted IATC\\nclaims. Johnson claims that the district court unnecessarily narrowed the wide\\nrange of factors that should have been considered, focusing only on whether\\n 5\\n\\f Case: 19-20552 Document: 00515077003 Page: 6 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nJohnson described a meritorious IATC claim that was defaulted and whether\\nJohnson had pled that his federal habeas proceeding was deficient.\\n Johnson claims that under the COA standard, jurists of reason could\\ndebate whether the district court abused its discretion in concluding that\\nJohnson failed to demonstrate extraordinary circumstances because he did not\\nplead the merits of a defaulted IATC claim. Johnson argues that the question\\nunder Rule 60(b) is not whether there is a meritorious habeas claim if he was\\nrepresented by conflict-free counsel, but whether his previous counsel\\nMcCann’s performance was so deficient that he failed to provide the quality of\\nrepresentation that 18 U.S.C. § 3599 guarantees. Johnson’s claim is that\\nMcCann’s representation fell so far below the standards of Section 3599 that\\nhis case presents extraordinary circumstances.\\n Johnson also claims that the district court, which based its decision on\\nthe lack of any debatable defaulted IATC claim, has placed habeas applicants\\nin an impossible situation. Johnson argues that requiring him to identify and\\nlitigate the substantive merit and procedural defenses of defaulted IATC\\nclaims would effectively require Mr. Johnson to transform his Rule 60(b)\\nmotion into a successive petition.\\n Finally, Johnson argues that reasonable jurists could debate whether the\\ndistrict court abused its discretion by failing to address McCann’s ethical\\nviolations. Johnson claims that McCann violated multiple ethical rules,\\nincluding the duty of candor for not explaining his conflict of interest and the\\nduty of loyalty for not remedying the conflict.\\n Responding to these arguments, we point out that having conflicted\\ncounsel is not enough to obtain relief under Rule 60(b). See Raby v. Davis, 907\\nF.3d 880, 884 (5th Cir. 2018). The Supreme Court explained that even if it is\\nshown to be debatable that state habeas counsel was constitutionally\\n 6\\n\\f Case: 19-20552 Document: 00515077003 Page: 7 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nineffective, there is another “significant element” of a Rule 60(b)(6) motion: the\\nclaim must have “some merit.” Buck, 137 S. Ct. at 780. The Court elaborated\\nthat this means that the movant must show “a good claim or defense” because\\nthat “is a precondition of Rule 60(b)(6) relief.” Id. (second quotation from 11\\nWRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2857).\\n The district court properly held that Johnson fell short on this significant\\nrequirement. Current counsel mentioned a few potentially meritorious claims\\nthat were previously defaulted in his reply brief but failed to brief them in any\\ndetail whatsoever. The district court noted that it directed Johnson’s conflict-\\nfree attorneys to “scour the record” for Strickland claims that meet the\\nprerequisites for Martinez and Trevino but that there were no identified\\n“procedural default[s] that would otherwise bar a federal habeas court from\\nhearing a substantial claim of ineffective assistance at trial.” Jennings, 760 F.\\nApp’x 319, 324 (5th Cir. 2019) (citations omitted). Our finding here is\\nconsistent with Buck’s directive that we not delve too deeply into the\\nunderlying merits of a claim, because none was presented. 137 S. Ct. at 774.\\nFurthermore, in a deficient representation case such as this, there needed to\\nbe some factor besides the representation. See Id. at 777-780 (finding that\\nMartinez/Trevino was one significant element but relying in significant part on\\nother circumstances such as race being a basis for the verdict). Johnson failed\\nto brief these claims, and so we find that reasonable jurists would not debate\\nthe district court’s decision that Johnson’s Martinez and Trevino conflict\\narguments were inadequate to show exceptional circumstances.\\n As to Johnson’s argument that the district court ignored his claims about\\nMcCann’s alleged deficient performance, the district court stated that Rule\\n60(b) relief is ordinarily not appropriate in the habeas context. Buck, 137 S.\\nCt. at 777. If there were no underlying meritorious waived claims, then it can\\n 7\\n\\f Case: 19-20552 Document: 00515077003 Page: 8 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nhardly be argued that there is a “risk of injustice” to Johnson because he did\\nnot argue he would be entitled to any form of relief if his case were reopened.\\nSee Liljeberg, 486 U.S. at 863-864 (cited in Buck, 137 S. Ct. at 778).\\nFurthermore, in other cases where habeas counsel was deficient for omitting\\ncertain claims, the Supreme Court has stated that such an attack “ordinarily\\ndoes not go to the integrity of the proceedings.” Gonzales v. Crosby, 545 U.S.\\nat 532 n.5. Although Johnson attempts to recast McCann’s actions as choices,\\nnot omissions, the thrust of the logic still applies: McCann’s alleged deficient\\nperformance was not itself sufficient to constitute exceptional circumstances.\\n Reasonable jurists would not debate that the district court did not abuse\\nits discretion in concluding that Johnson’s claims did not present extraordinary\\ncircumstances. This is because Johnson failed to brief any waived claims\\nsufficient to allow the district court to determine whether extraordinary\\ncircumstances that might “risk . . . undermining the public’s confidence in the\\njudicial process” were present. Liljeberg, 486 U.S. at 864. Johnson also fails\\nto provide us any authority that Section 3599 has ever provided relief pursuant\\nto Rule 60(b). In sum, we conclude that reasonable jurists would not debate\\nthat the district court did not abuse its discretion in denying Johnson’s Rule\\n60(b) motion.\\n Johnson’s motion for a COA is DENIED.\\n\\n\\nII. Motion for Successive Application\\n We review an application for the filing of a successive habeas application\\nto determine if the applicant makes a prima facie showing that he has met the\\nrequirements of Section 2244. 28 U.S.C. § 2244(b)(3)(C). A prima facie\\nshowing is “simply a sufficient showing of possible merit to warrant a fuller\\n\\n\\n 8\\n\\f Case: 19-20552 Document: 00515077003 Page: 9 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nexploration by the district court.” In re Morris, 328 F.3d 739, 740 (5th Cir.\\n2003) (quoting Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997)).\\n A person in custody under a state-court judgment who seeks to file a\\nsuccessive application for a writ of habeas corpus in federal court must satisfy\\nthese requirements:\\n (1) A claim presented in a second or successive habeas\\n corpus application under section 2254 that was presented in a\\n prior application shall be dismissed.\\n (2) A claim presented in a second or successive habeas corpus\\n application under section 2254 that was not presented in a prior\\n application shall be dismissed unless-\\n (A) the applicant shows that the claim relies on a new\\n rule of constitutional law, made retroactive to cases on\\n collateral review by the Supreme Court, that was previously\\n unavailable; or\\n (B)(i) the factual predicate for the claim could not have\\n been discovered previously through the exercise of due\\n diligence; and\\n (ii) the facts underlying the claim, if proven and\\n viewed in light of the evidence as a whole, would be sufficient\\n to establish by clear and convincing evidence that, but for\\n constitutional error, no reasonable factfinder would have\\n found the applicant guilty of the underlying offense.\\n28 U.S.C. § 2244(b).\\n Johnson’s two primary arguments in support of his Atkins claim are that\\nhis only recently discharged counsel had a conflict of interest because he is the\\none whose ineffectiveness in state habeas needed to be challenged, and that\\nrecent changes to the medical standards for determining mental disability\\nbenefit him. Applying Section 2244(b)(2)(A), Johnson argues that Atkins is a\\nnew rule of constitutional law that is retroactive and that his claim was\\n\\n\\n\\n 9\\n\\f Case: 19-20552 Document: 00515077003 Page: 10 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\npreviously unavailable because the latest professional diagnostic manual\\nchanged the framework for intellectual disability. 1\\n At trial, Johnson was found not to be intellectually disabled. This was\\nunder an earlier professional manual, DSM-IV-TR, which relied on Johnson’s\\nIQ score that was above 70. 2 The latest DSM-5 manual changed the diagnostic\\nframework for intellectual disability. Higher IQ scores no longer bar a\\ndiagnosis of an intellectual disability. Dr. Daniel A. Martell concluded that as\\nof July 31, 2019, Johnson “meets the criteria for a diagnosis of Intellectual\\nDisability” under the DSM-5. In 2019, Johnson scored 70 on a full-scale WAIS-\\nIV IQ test.\\n First, Johnson must show that his claim was not presented in a prior\\nfederal application. 28 U.S.C. § 2244(b)(1). The State concedes that he did not.\\nThus, Johnson has met the requirements of Section 2244(b)(1).\\n Second, “Atkins created a new rule of constitutional law . . . made\\nretroactive to cases on collateral review by the Supreme Court.” In re\\nCampbell, 750 F.3d 523, 530 (5th Cir. 2014). As is obvious, though, Atkins was\\ndecided long before Johnson even committed his crimes. A meaningful hurdle\\nfor Johnson is to demonstrate why we should consider that case to be\\nretroactive as to him. The State argues that it is not. We hold to the contrary,\\ncounterintuitively perhaps, but not unreasonably, with the full weight of our\\n\\n\\n\\n\\n 1 Johnson also argues that his claim satisfies Section 2244(b)(2)(B), dealing with the\\nfactual predicates for his claims, but we need not, and do not, discuss that argument.\\n 2 The manuals express current medical standards for defining intellectual disability.\\n\\n“Reflecting improved understanding over time, . . . current manuals offer ‘the best available\\ndescription of how mental disorders are expressed and can be recognized by trained\\nclinicians.’” Moore v. Texas, 137 S. Ct. 1039, 1053 (2017) (quoting the DSM-5 and noting that\\ncurrent medical standards constrain a state’s definition of what is an intellectual disability).\\n 10\\n\\f Case: 19-20552 Document: 00515077003 Page: 11 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nconclusion being borne by this court’s recent decision in In re Cathey, 857 F.3d\\n221 (5th Cir. 2017). We discuss that case next.\\n\\n A. Claim was previously unavailable\\n We analyze whether Johnson’s “claim relies on a new rule of\\nconstitutional law, made retroactive to cases on collateral review by the\\nSupreme Court, that was previously unavailable.” § 2244(b)(2)(A). In the\\nCathey precedent on which we rely, the applicant’s IQ initially was thought to\\nbe too high for intellectual disability. In re Cathey, 857 F.3d at 230. Upon his\\nadmission to prison, which was pre-Atkins, an IQ test was given to him that\\nsupported that his IQ was within the range for sufficient mental disability to\\nbe exempt from the death penalty. Id. at 232. For reasons that were disputed,\\nthe documents for that test did not become available to the inmate and counsel\\nuntil 12 years after his conviction. Id. In addition, it was 6 years after Cathey’s\\nconviction that a litigation theory bearing on the accuracy of IQ scores called\\nthe Flynn Effect was recognized by courts. Id. at 227, 229-33. Thus, when\\nCathey filed his initial state and federal habeas applications, there was not a\\nclaim “with some possibility of merit” under Atkins to be made and there\\nremained no such claim for several years. Id. at 232.\\n Those facts amounted at least to a prima facie showing that Atkins was\\npreviously unavailable as required by Section 2244(b)(2)(A). Id. at 233. We\\ndid not separately analyze whether it was enough that Atkins in a generic\\nsense was a rule of constitutional law, made retroactive to cases on collateral\\nreview by the Supreme Court, even though it was not so clearly retroactive in\\nits application to Cathey. We accept that the conclusions in Cathey necessarily\\ndecided that latter point as well and move on here.\\n We see the facts relevant to Johnson to be quite similar. In 2013, six\\nyears after Johnson’s conviction, a new diagnostic manual called the DSM-5\\n 11\\n\\f Case: 19-20552 Document: 00515077003 Page: 12 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nfor mental disability was released. The new diagnostic guidelines included\\nsignificant changes in the diagnosis of intellectual disability, which changed\\nthe focus from specific IQ scores to clinical judgment. The DSM-5 recognizes\\nthat an individual with an IQ score over 70 may still qualify as intellectually\\ndisabled. The previous diagnostic manual, in effect when Johnson filed his\\ninitial federal habeas petition, did not classify Johnson as intellectually\\ndisabled because of his IQ. Further bolstering that his claim was unavailable\\nuntil now, Johnson under a current full-scale IQ testing scored 70, within the\\nAtkins range. Johnson also argues that although the DSM-5 was published\\nbefore his habeas petition was denied for the first time in federal court, the\\nDSM-5 was published only 17 days before the denial, which renders his claim\\nnot feasible as an amendment to his first petition.\\n The State’s principal argument about Cathey is that it was “effectively\\noverruled by the Supreme Court in in Shoop v. Hill, 139 S. Ct. 504, 507-08\\n(2019) (per curiam).” The court in Cathey relied significantly on Moore in\\nevaluating the prima facie showing of Cathey’s intellectual disability. In re\\nCathey, 857 F.3d at 234-36. The Supreme Court in Moore had reviewed a Texas\\nCourt of Criminal Appeals decision which had not applied updated medical\\nstandards in evaluating an Atkins claim. Moore, 137 S. Ct. at 1053. Later, the\\nSupreme Court in Shoop determined that Moore was not clearly established\\nlaw for the purposes of deciding whether a state court, whose decision was\\nreached before Moore was decided, had unreasonably applied established law\\nto a habeas claim. Shoop, 139 S. Ct. at 507-08 (citing 28 U.S.C. § 2254(d)(1)).\\nShoop, which concerns the relitigation bar of Section 2254(d)(1), did not\\noverrule Cathey, which concerns a prima facie showing under Section 2244.\\n The State gives us little else on which to evaluate Cathey. Its sole\\nsecondary argument is an effort to distinguish the present case from Cathey\\n 12\\n\\f Case: 19-20552 Document: 00515077003 Page: 13 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nfor these reasons: Cathey’s conviction was final before Atkins was decided,\\nwhile Johnson committed his crimes after Atkins was decided; by the time\\nCathey was seeking Section 2254 relief, Atkins had been decided but it was\\nunclear how to present the claim, uncertainties that did not apply to Johnson’s\\ninitial pursuit of federal habeas; and Cathey showed greater diligence in\\nbringing the Atkins claim than did Johnson. We cannot say these distinctions\\nresolve this case in the State’s favor. The central problem here is that both the\\ncounsel for Cathey and now the one for Johnson were presented — after all the\\nevents which the State argues are distinctions — with reasons that made an\\nAtkins claim possibly meritorious when it had not previously been. The State\\nseemingly recognizes that central problem, as after describing the ostensible\\ndistinctions, it returns to the argument that Cathey has been overruled by\\nShoop.\\n What opens the door for Johnson is the Cathey decision, which has\\nprecedentially determined that it is correct to equate legal availability with\\nchanges in the standards for psychiatric evaluation of the key intellectual\\ndisability factual issues raised by Atkins. We are applying that decision to a\\nnew, but not meaningfully distinguishable, set of facts.\\n\\n B. Prima facie showing of disability\\n The requirement of a prima facie showing comes from Section\\n2244(b)(3)(C). Part of the showing is not only that his claim relies on\\nretroactive Supreme Court precedent that was previously unavailable, but also\\na prima facie showing that his claim has merit. See In re Cathey, 857 F.3d at\\n226. To be intellectually disabled, an individual must establish intellectual-\\nfunctioning deficits, adaptive deficits, and onset of those deficits when the\\nindividual is a minor. See id. at 235. Dr. Daniel Martell concluded after\\nextensive evaluation of Johnson, including IQ scores, neuropsychological\\n 13\\n\\f Case: 19-20552 Document: 00515077003 Page: 14 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\ntesting, and interviews with witnesses and Johnson that Johnson has deficits\\nin intellectual functioning. This is “confirmed by his IQ score of 70 on the\\nWAIS-IV, IQ scores from tests administered pretrial, and the clear cognitive\\ndeficits displayed on multiple neuropsychological tests.” Dr. Martell concluded\\nalso that Johnson is at or below the bottom two percent of the population with\\nregard to verbal learning and memory, that Johnson has frontal lobe\\nimpairment, and that he has right hemisphere brain dysfunction.\\nFurthermore, Dr. Watson, the trial expert, averred that he would no longer\\ntestify that Johnson is not intellectually disabled based on Johnson’s IQ test\\nscores from that time.\\n Dr. Martell also concluded that Johnson exhibited deficits in all three\\ndomains of adaptive functioning. Johnson repeated the second grade and\\nstruggled with reading comprehension and problem solving. He also struggled\\nto articulate words. In high school, Johnson functioned at the sixth-grade\\nlevel. Johnson also exhibited deficits in the social domain, as he struggled to\\nmake friends, was immature compared to peers, could not make eye contact,\\ncould not hold a conversation, struggled to control his emotions, and could not\\nread the emotions of others. Johnson’s deficiency in the practical domain was\\nevidenced by his inability to follow bus or walking directions, struggles with\\npersonal hygiene, and inability to manage money or his own affairs.\\n Finally, Dr. Martell concluded that the onset of Johnson’s disability was\\nduring the developmental period, through witness declarations, trial\\ntestimony, and records.\\n The State contends that we must review whether the Texas Court of\\nCriminal Appeals “unreasonably determined that the facts set forth in\\n[applicant]’s petition, if true, would not establish by clear and convincing\\nevidence that no rational factfinder would fail to find [applicant] intellectually\\n 14\\n\\f Case: 19-20552 Document: 00515077003 Page: 15 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\ndisabled.” Busby v. Davis, 925 F.3d 699, 716 (5th Cir. 2019). The State\\ncontends Johnson’s application here lacks merit because we should defer to the\\nTexas Court of Criminal Appeals’ decisions. There are actually two state court\\ndenials of Johnson’s Atkins claim. One was on April 29, 2019, the other on\\nAugust 13, 2019. Both orders from the Court of Criminal Appeals stated that\\nthe court dismissed the “application as an abuse of the writ without reviewing\\nthe merits of the claims raised.” Both orders post-date Moore.\\n Whether the decisions were on the merits is affected by recent caselaw\\nthat recasts a similarly-phrased Texas decision as a merits one “when a\\ndefendant who was convicted post-Atkins raises an Atkins claim for the first\\ntime in a successive habeas application[; that is because] the Texas court must\\ndetermine whether the defendant has asserted facts, which if true, would\\nsufficiently state an Atkins claim to permit consideration of the successive\\npetition.” Busby, 925 F.3d at 707. We understand the Busby court to be\\nreferring to the analysis the Texas court is to undertake in considering a\\nsuccessive application under Texas Code of Criminal Procedure article 11.071,\\nsection 5(a), and labeling that as merits-based. Regardless of what the best\\nreading of Busby may be, the initial decision in this case is for the district court.\\n We now consider whether Johnson must overcome the relitigation bar of\\nSection 2254(d). Section 2244(b)(3)(C) states that a court “may authorize the\\nfiling of a second or successive application only if it determines that the\\napplication makes a prima facie showing that the application satisfies the\\nrequirements of this subsection.” It makes no mention of Section 2254(d),\\nwhich is in a different subsection. In re Cathey discussed this issue. 857 F.3d\\nat 236. It recognized that Cathey’s Atkins claim was previously brought in a\\nsuccessive habeas petition before the state court, but the court did not analyze\\nthe relitigation bar of Section 2254(d) in making its Section 2244 analysis. Id.\\n 15\\n\\f Case: 19-20552 Document: 00515077003 Page: 16 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nWe held that “the state court findings concerning the Atkins claim are wholly\\nirrelevant to our inquiry as to whether [the petitioner] has made a prima facie\\nshowing of entitlement to proceed with his federal habeas application, which is\\nan inquiry distinct from the burden that [the petitioner] must bear in proving\\nhis claim in the district court.” Id. (alteration in original) (quoting In re Wilson,\\n442 F.3d 872, 878 (5th Cir. 2006)). We therefore conclude that Johnson is not\\nrequired at this stage to address the Texas court’s decisions.\\n Having determined that Johnson at this stage is not required to show\\nthat the state court unreasonably determined the facts, we find that Johnson\\nhas at least made a prima facie showing of intellectual disability.\\n\\n C. Timeliness\\n Johnson also must show that his application is timely. There is a one-\\nyear statute of limitations on applications for a writ of habeas corpus running\\nfrom the latest of:\\n (A) the date on which the judgment became final by the conclusion\\n of direct review or the expiration of the time for seeking such\\n review;\\n (B) the date on which the impediment to filing an application\\n created by State action in violation of the Constitution or laws of\\n the United States is removed, if the applicant was prevented from\\n filing by such State action;\\n (C) the date on which the constitutional right asserted was initially\\n recognized by the Supreme Court, if the right has been newly\\n recognized by the Supreme Court and made retroactively\\n applicable to cases on collateral review; or\\n (D) the date on which the factual predicate of the claim or claims\\n presented could have been discovered through the exercise of due\\n diligence.\\n28 U.S.C. § 2244(d)(1).\\n\\n\\n\\n 16\\n\\f Case: 19-20552 Document: 00515077003 Page: 17 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n Johnson devotes his argument to the equitable tolling of the statute of\\nlimitations, which he claims began to run on the date which the factual\\npredicate of the claim or claims presented could have been discovered through\\nthe exercise of due diligence. § 2244(d)(1)(D). The date that factual predicate\\nbecame available was the publication of the DSM-5, which was on May 18,\\n2013. As that does not meet the one-year statute of limitations, Johnson\\nargues that he is entitled to equitable tolling under Holland v. Florida, 560\\nU.S. 631, 649 (2010). “To establish his entitlement to equitable tolling, a\\npetitioner must ‘sho[w] (1) that he has been pursuing his rights diligently, and\\n(2) that some extraordinary circumstances stood in his way and prevented\\ntimely filing.’” Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012) (quoting\\nHolland, 560 U.S. at 649). As to diligence, Johnson claims that he was diligent\\nin seeking counsel that was not conflicted. He requested, pro se, conflict-free\\ncounsel once he was aware of the conflict. He has also filed this motion within\\nsix months of appointment of conflict-free counsel.\\n Johnson argues that the conflicts of his counsel were the extraordinary\\ncircumstances sufficient to justify his delay. The Supreme Court held that “at\\nleast sometimes, professional misconduct that fails to meet [a circuit court’s]\\nstandard could nonetheless amount to egregious behavior and create an\\nextraordinary circumstance that warrants equitable tolling.” Holland, 560\\nU.S. at 651. Johnson also argues that equitable tolling is best decided at an\\nevidentiary hearing because of its fact-bound nature. “[W]e also recognize the\\nprudence, when faced with an equitable, often fact-intensive inquiry, of\\nallowing the lower courts to undertake it in the first instance.” Id. at 654\\n(quotation marks and citation omitted).\\n Similarly, we have held that questions of equitable tolling are best left\\nto the district court for the initial analysis. In re Cathey, 857 F.3d at 240-41.\\n 17\\n\\f Case: 19-20552 Document: 00515077003 Page: 18 Date Filed: 08/14/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nWe stated that the delay there gave us pause but determined further factual\\ndevelopment was needed. Id. The district court is better positioned than are\\nwe to determine the timeliness of Johnson’s motion for a successive application.\\n Having found that Johnson has at this stage made a prima facie showing\\nthat his successive petition satisfies 28 U.S.C. § 2244(b)(2)(A), we GRANT\\nJohnson’s motion for authorization and STAY the execution.\\n\\n\\n\\n\\n 18\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3662,"cells":{"id":{"kind":"number","value":4648700,"string":"4,648,700"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee v. Hugh Michael GLENN, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Hugh Glenn"},"decision_date":{"kind":"string","value":"2019-08-15"},"docket_number":{"kind":"string","value":"18-10580"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Haynes, Graves, Duncan\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES E. GRAVES, JR., Circuit Judge\", \"type\": \"010combined\", \"text\": \"Case: 18-10580 Document: 00515077500 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 18-10580\\n Fifth Circuit\\n\\n FILED\\n August 15, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nHUGH MICHAEL GLENN,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore HAYNES, GRAVES, and DUNCAN, Circuit Judges.\\nJAMES E. GRAVES, JR., Circuit Judge:\\n Hugh Michael Glenn appeals his conviction for one count of transporting\\nand shipping child pornography in violation of 18 U.S.C. §2252A(a)(1) and one\\ncount of accessing child pornography with intent to view it in violation of 18\\nU.S.C. § 2252(a)(4). Finding no error in the proceedings below, we affirm.\\n I. BACKGROUND\\nA. Government Obtains a Warrant and Seizes Glenn’s Computer\\n On or about August 30, 2016, the Dallas Police Department (“DPD”)\\nreceived a “cyber tip” from the National Center for Missing and Exploited\\nChildren (“NCMEC”). NCMEC informed the DPD that Chatstep, “an\\nanonymous online chatting platform,” had reported that someone with the\\n\\f Case: 18-10580 Document: 00515077500 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\nusername “TexPerv” uploaded an image of a prepubescent male exposed in a\\nlewd and lascivious manner to its site on August 1, 2016. According to\\nChatstep, the user had also accessed several chat rooms with names signaling\\na sexual interest in children, including “UdnreraegAvction,” “byyyrooom,” and\\n“UdneraegHvmiliation.”\\n DPD Detective Chris De Leon issued an administrative subpoena to\\nAT&T for the subscriber information linked to the IP address in the cyber tip.\\nAT&T’s records showed Hugh Michael Glenn as the subscriber for the\\ndesignated IP address. After running a search on Glenn’s telephone number,\\nDeLeon found Glenn listed as a registered sex offender with a prior federal\\nconviction for transporting and shipping child pornography. DeLeon began\\nsurveilling the address listed on the sex offender registry and the AT&T\\ndocuments; in doing so, he observed a UPS package on the doorstep addressed\\nto Hugh Glenn.\\n On or about September 8, 2016, DeLeon contacted Agent Jennifer\\nMullican, a member of the FBI’s Child Exploitation Task Force, for assistance.\\nBased on the information Mullican collected from DeLeon, including the AT&T\\nrecords, Mullican sought a warrant to search the residence of 3500 Routh for\\ncomputer equipment and electronic material. In her affidavit in support of the\\nwarrant, Mullican listed 3500 Routh St as the address where Glenn was\\nreceiving internet service on August 1, 2016, the date the child pornography\\nimage was uploaded to Chatstep. However, the AT&T documents actually\\nshowed Glenn was receiving internet service at 3025 West Forest on August\\n1st; he transferred his billing address to 3500 Routh St on August 2nd and\\nbegan service at Routh St on August 9th. Because Chatstep reported the\\npornography was uploaded on August 1st, Glenn could not have uploaded the\\npicture from 3500 Routh, as Mullican’s affidavit stated. Accordingly,\\n\\n\\n 2\\n\\f Case: 18-10580 Document: 00515077500 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\nMullican’s statement in the affidavit about where the upload likely occurred\\nwas incorrect.\\n The mistake went unnoticed and the magistrate judge issued a warrant\\nto search the Routh St address. Officers executed the search warrant on\\nSeptember 14, 2016. Glenn was present at the time of the search and agreed\\nto speak with law enforcement, waiving his Miranda rights. During this\\ninterview, Glenn admitted that he visited Chatstep, that he was user TexPerv,\\nand that he had downloaded and uploaded child pornography. He also\\nacknowledged that the officers would find child pornography on his laptop.\\nGlenn admitted he had seen the specific image referenced in the cyber tip, and\\nalthough he said he did not remember sharing the image, he also stated,\\n“Umm, I obviously saved [the image] if I sent it out.” Glenn signed and dated\\nthe back of the image.\\n While Mullican was interviewing Glenn, FBI computer scientist\\nAnthony Lehman performed an initial triage of Glenn’s laptop to determine if\\nthe computer was encrypted and to see if he could uncover any information\\nhelpful to the officers as they interviewed Glenn. Lehman used a software\\nprogram “to do a quick analysis” of the computer’s “allocated space,” and he\\nused a different program to recover deleted files from the hard drive’s\\n“unallocated space.” 1 These searches were consistent with FBI protocol.\\nLehman’s searches of Glenn’s computer at the scene recovered many images of\\nchild pornography in both the allocated and unallocated spaces.\\n\\n\\n\\n\\n 1 “Allocated space” is space on a hard drive dedicated to storing files used or saved by\\nthe user so they can be accessed at a later time. After a file is deleted, it is stored in a hard\\ndrive’s “unallocated space” until the hard drive is either permanently wiped using special\\nsoftware or the files are overwritten by other actions of the user. A user generally cannot\\naccess files in the unallocated space of the hard drive without special software, which Glenn\\ndid not have.\\n 3\\n\\f Case: 18-10580 Document: 00515077500 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\nB. Glenn’s Computer Installs Update in Government Custody\\n While back at the laboratory after the execution of the search warrant,\\nLehman attempted to create an “image” 2 of the hard drive before the agents\\nsearched it further. In accordance with FBI procedures, Lehman removed the\\nhard drive from the computer and tried to image it. However, the hard drive\\nhad a “non-standard” connector that was proprietary to its manufacturer and\\nLehman ran into several issues, requiring multiple attempts to image the\\ndrive.\\n Lehman sought help from his colleagues, but nobody had “seen this type\\nof hard drive.” He tried again using a different software program, but that\\nattempt also failed. Lehman then tried two more times, once from a CD and\\nonce from a USB drive. Importantly, when Lehman attempted to run a\\nprogram from the USB drive, the computer “didn’t boot to the USB” as Lehman\\nexpected it would. Instead, “it tried to start up Windows,” and Lehman\\n“powered off the machine.”\\n When Glenn’s computer “tried to start up Windows,” updates installed\\nautomatically onto the hard drive. 3 Although the update did not affect the\\n“thumb cache” 4 of the computer—which contained numerous images of child\\npornography—one of the updates was a defrag.exe process that reallocated\\ninformation on the drive so that data could be written more efficiently. Lehman\\n\\n\\n\\n In this context, an image of a hard drive is “an identical copy of [the] hard drive.”\\n 2\\n\\n A Windows update proceeds in two steps: the updates are downloaded onto the\\n 3\\n\\ncomputer either automatically or by the user; and then the user can either install the updates\\nimmediately by restarting the computer or they will automatically install the next time the\\ncomputer is restarted. The updates on Glenn’s laptop had automatically downloaded to\\nGlenn’s computer the day before the execution of the search warrant; however, because Glenn\\nhad not restarted his computer, the updates had not yet been installed. It is undisputed that\\nthe Windows update did not contain images of child pornography.\\n 4 A “thumb cache” is a database file that “basically stores every picture that you have\\n\\nknowingly opened on the computer” to help files load faster when they are opened\\nsubsequently. The thumb cache is located in the allocated space on the hard drive.\\n 4\\n\\f Case: 18-10580 Document: 00515077500 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\ntestified that the defrag did not “completely actually run” and he “did not\\npurposefully execute defrag.exe.” Glenn contends that the update destroyed at\\nleast ten gigabytes of data in the unallocated space of his hard drive.\\n Eventually, Lehman was able to image the hard drive. All of the\\ninformation about Lehman’s attempts to image Glenn’s hard drive, including\\nthe Windows update, was logged in the computer’s registry. Lehman was\\nsupposed to write a “302 report” summarizing his efforts to image Glenn’s hard\\ndrive, but Lehman failed to make his 302 report until about five months before\\ntrial. Lehman testified that this delay was an “oversight” because he “thought\\nthat [he] had written it” earlier.\\n Glenn’s computer expert, Brian Ingram, was so disturbed by Lehman’s\\nfailures that he brought them to the attention of the FBI. However, Ingram\\nconfirmed that he had no reason to doubt that 2,000 images of child\\npornography were on Glenn’s computer before the FBI took custody of the\\ncomputer. Additionally, Tom Petrowski, Division Counsel for the FBI, testified\\nthat Ingram said he thought Glenn was “guilty as sin.”\\n After the hard drive was imaged, Mullican reviewed it. She located\\nnumerous images of child pornography—including the image referenced in the\\ncyber tip—on Glenn’s hard drive. Mullican also found explicit stories on the\\nhard drive that depicted “the sexual exploitation of minor boys.”\\nC. Pretrial Proceedings, the Trial, and Sentencing\\n Glenn was charged in a superseding indictment with one count of\\ntransporting and shipping child pornography in violation of 18 U.S.C.\\n§ 2252A(a)(1) and one count of accessing child pornography with intent to view\\nit in violation of 18 U.S.C. § 2252(a)(4). Count 1 related to the image user\\nTexPerv uploaded to Chatstep on August 1; Count 2 related to four images\\nfound in Glenn’s thumb cache.\\n\\n\\n 5\\n\\f Case: 18-10580 Document: 00515077500 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\n Glenn moved to suppress the evidence obtained during the search once\\nit came to light that Mullican’s affidavit incorrectly stated Glenn’s address was\\nRouth St at the time the image was uploaded to Chatstep. No one contested\\nthat Mullican’s affidavit supporting the warrant contained a false statement,\\nand the district court judge therefore conducted an evidentiary hearing in\\naccordance with Franks v. Delaware, 438 U.S. 154 (1978). After asking\\nMullican a number of questions, the district court denied the motion to\\nsuppress, finding her testimony credible and concluding that her failure to\\nstate the correct address “simply was a mistake.”\\n Glenn also moved to dismiss the indictment “due to prosecutorial\\nmisconduct” because Lehman allowed the computer to reboot in his custody,\\nwhich triggered the installation of the Windows update and defrag program,\\nresulting in at least ten gigabytes of destroyed data. The district court carried\\nthe motion to dismiss with the case so that it could hear live testimony from\\nboth Lehman and Glenn’s computer experts, but it indicated that it was\\nunlikely to grant the motion.\\n During trial, Mullican testified that she found numerous images of child\\npornography on Glenn’s computer, including the image uploaded to Chatstep.\\nGlenn objected, arguing that Mullican was not an expert in “hash values” used\\nto identify specific images, nor was she an expert in the program used to find\\nthe illicit images on Glenn’s computer. The district court overruled the\\nobjection and admitted the images into evidence. After trial, the district court\\ndenied Glenn’s motion to dismiss. It also denied Glenn’s request for a spoliation\\nof the evidence instruction because it found that there was “not sufficient\\nevidence of bad faith.” The jury convicted Glenn on both counts of the\\nindictment. The district court sentenced Glenn to a total of 360 months of\\nimprisonment.\\n Glenn timely appealed.\\n 6\\n\\f Case: 18-10580 Document: 00515077500 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\n II. DISCUSSION\\n Glenn raises four issues on appeal to challenge his convictions. He does\\nnot challenge his sentence. We address each of his arguments in turn.\\nA. Motion to Dismiss for Prosecutorial Misconduct\\n Glenn first argues that the district court erred by denying his motion to\\ndismiss. He bases this argument on two different legal theories: 1) the\\nGovernment suppressed exculpatory evidence under Brady v. Maryland, 373\\nU.S. 83 (1963), and 2) the Government failed to preserve exculpatory evidence\\nunder Arizona v. Youngblood, 488 U.S. 51 (1988). As the Government observes,\\neach argument is based on the same facts: primarily that while Glenn’s laptop\\nwas in Government custody, the Windows update “destroyed” at least ten\\ngigabytes of data in the unallocated space, and the Government did not\\nspecifically communicate this fact to Glenn prior to trial. Glenn contends he is\\nentitled to dismissal of the indictment with prejudice on these bases.\\n 1. Standard of Review\\n “We generally review whether the government violated Brady de novo,\\nalthough even when reviewing a Brady claim de novo, we must proceed with\\ndeference to the factual findings underlying the district court’s\\ndecision[.]” United States v. Cessa, 861 F.3d 121, 128 (5th Cir. 2017) (quoting\\nUnited States v. Brown, 650 F.3d 581, 589 (5th Cir. 2011) (internal quotation\\nmarks and citations omitted)). “We review a district court’s bad-faith\\ndetermination for clear error.” United States v. McNealy, 625 F.3d 858, 868–69\\n(5th Cir. 2010). While this court has not “foreclose[d] the possibility that\\ngovernmental ineptitude and carelessness could be so abhorrent as to warrant\\na dismissal with prejudice,” United States v. Fulmer, 722 F.2d 1192, 1196 (5th\\nCir. 1983), “mere error or oversight is neither gross negligence nor intentional\\nmisconduct.” United States v. Swenson, 894 F.3d 677, 684 (5th Cir.) (quoting\\n\\n\\n 7\\n\\f Case: 18-10580 Document: 00515077500 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\nUnited States v. Fulmer, 722 F.2d 1192, 1195 (5th Cir. 1983) (internal\\nquotations omitted)), cert. denied, 139 S. Ct. 469 (2018).\\n 2. Brady Argument\\n “To establish a Brady violation, a defendant must show: (1) the evidence\\nat issue was favorable to the accused, either because it was exculpatory or\\nimpeaching; (2) the evidence was suppressed by the prosecution; and (3) the\\nevidence was material.” United States v. Dvorin, 817 F.3d 438, 450 (5th Cir.\\n2016). Bad faith is irrelevant to whether the Government has met its\\nobligations under Brady. See Youngblood, 488 U.S. at 57. Both Glenn and the\\nGovernment discuss all three elements of the Brady analysis; however, we find\\nthat Glenn cannot show the overwritten data was material. Accordingly, we do\\nnot address the first two elements.\\n “Evidence is material if there is a reasonable probability that, had the\\nevidence been disclosed to the defense, the result of the proceeding would have\\nbeen different.” Dvorin, 817 F.3d at 451 (quoting Brown, 650 F.3d at 588\\n(internal quotation marks omitted)). Stated differently, the favorable evidence\\nmust “put the whole case in such a different light as to undermine confidence\\nin the verdict.” Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting Kyles v.\\nWhitley, 514 U.S. 419, 435 (1995)).\\n Glenn cannot show that, had he had access to the overwritten data, the\\noutcome of the trial would have been different. As for the uploaded image that\\nwas the subject of Count I, Glenn admitted having seen the uploaded image,\\nand while he told Mullican he did not remember sharing the image, he later\\nstated, “Umm, I obviously saved [the image] if I sent it out.” Taken together\\nwith the facts that Glenn admitted to being user “TexPerv,” he signed and\\ndated the back of the image, and that the only other person to have had access\\nto his computer was confirmed to have been at work on the date of the upload,\\nthere is little likelihood that the overwritten data would have changed the\\n 8\\n\\f Case: 18-10580 Document: 00515077500 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\noutcome of this case, even assuming it had some exculpatory or impeachment\\nvalue. 5 As to the four images that made up Count II, Glenn’s own expert agreed\\nthat the Windows update would not have moved files in Glenn’s thumb cache.\\nMoreover, Glenn told Mullican she would find child pornography on his\\ncomputer. Consequently, Glenn’s Brady arguments are without merit.\\n 3. Youngblood Claim\\n Unlike Brady, where the good or bad faith of the officer is irrelevant,\\nYoungblood establishes that “the Due Process Clause requires a different\\nresult when we deal with the failure of the State to preserve evidentiary\\nmaterial of which no more can be said than that it . . . might have exonerated\\nthe defendant.” Youngblood, 488 U.S. 57 (emphasis added). Glenn states\\nseveral times that the overwritten data included metadata that had\\n“potentially exculpatory” value, but also argues that the “evidence was of\\ncritical importance to the case and had exculpatory value.” We agree that the\\noverwritten data was at most possibly exculpatory, and therefore Glenn must\\nshow the district court clearly erred in determining the Government did not\\nengage in bad faith in overwriting the data. See McNealy, 625 F.3d at 868–69\\n(concluding “potentially available” exculpatory evidence “should be considered\\n‘potentially useful evidence’ rather than ‘material exculpatory evidence.’”).\\n The district court concluded, albeit in the context of a spoliation\\ninstruction, that Lehman’s actions in allowing the Windows update to install\\nwere at most negligent. This is not clear error, especially where the district\\ncourt waited to rule on Glenn’s motion until hearing testimony both from\\nGlenn’s computer expert and from Lehman regarding his actions leading to the\\noverwritten data. See United States v. Anderson, 755 F.3d 782, 791 (5th Cir.\\n\\n\\n 5 To the extent Glenn implied at oral argument that the Government may have\\nintentionally placed the images on Glenn’s computer, there is simply nothing in the record to\\nsupport such a contention.\\n 9\\n\\f Case: 18-10580 Document: 00515077500 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\n2014) (“[W]e defer to the district court’s credibility determination . . . .”).\\nGlenn’s Youngblood claim is therefore without merit.\\nB. Spoliation Instruction\\n Glenn next argues that the district court erred by denying his request\\nfor a spoliation instruction regarding Lehman’s failure to stop the Windows\\nupdate on his computer. We review the district court’s denial of such an\\ninstruction for abuse of discretion. United States v. Valas, 822 F.3d 228, 239\\n(5th Cir. 2016).\\n To receive a spoliation instruction, Glenn had to show that the\\nGovernment acted in bad faith or with bad conduct. Valas, 822 F.3d at 239. As\\nwe noted above, he has not done so. This case is comparable to Valas, where\\nthis court affirmed the denial of a spoliation instruction where a government\\ntechnician inadvertently destroyed data on the defendant’s phone by removing\\nthe phone’s data chip after multiple unsuccessful attempts by several officials\\nto access the data. Valas, 822 F.3d at 239. Here, the overwriting of data\\noccurred when Lehman, after several failed attempts to image the laptop, tried\\na different imaging method and inadvertently triggered an automatic update\\nthat had already been installed on Glenn’s computer, thereby erasing data on\\nGlenn’s hard drive. We see no meaningful difference between this case and\\nValas. Accordingly, the district court did not abuse its discretion in finding no\\nbad faith, nor did the district court err by deciding the bad faith issue itself\\nrather than sending it to the jury. See United States v. Wise, 221 F.3d 140, 156\\n(5th Cir. 2000).\\nC. Motion to Suppress\\n Glenn contends that the district court erred in denying his motion to\\nsuppress Glenn’s statements and the images found on his computer. He argues\\nthe warrant was invalid based on the incorrect address included in Mullican’s\\napplication for the search warrant.\\n 10\\n\\f Case: 18-10580 Document: 00515077500 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\n 1. Standard of Review\\n We “review[] the ‘[f]actual findings in a ruling on a motion to\\nsuppress . . . for clear error’ and questions of law de novo.” United States v.\\nJarman, 847 F.3d 259, 264 (5th Cir. 2017) (quoting United States v. Moore, 847\\nF.3d 259, 264 (5th Cir. 2017)). “The clearly erroneous standard is particularly\\ndeferential where, as here, ‘denial of a suppression motion is based on live oral\\ntestimony . . . because the judge had the opportunity to observe the demeanor\\nof the witnesses.” Id. (quoting United States v. Robinson, 741 F.3d 588, 594\\n(5th Cir. 2014)). We view the evidence in the light most favorable to the\\nprevailing party. United States v. Moore, 805 F.3d 590, 593 (5th Cir. 2015).\\n 2. Analysis\\n Ordinarily, “[t]he Fourth Amendment’s exclusionary rule will not bar the\\nadmission of evidence obtained with a warrant later found to be invalid so long\\nas the executing officers acted in reasonable reliance on the warrant.” United\\nStates v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997). However, “[u]nder the\\nSupreme Court’s decision in Franks, a search warrant must be voided if the\\ndefendant shows by a preponderance of the evidence that the affidavit\\nsupporting the warrant contained a false statement made intentionally or with\\nreckless disregard for the truth and, after setting aside the false statement,\\nthe affidavit’s remaining content is insufficient to establish probable cause.”\\nUnited States v. Ortega, 854 F.3d 818, 826 (5th Cir. 2017) (citing Franks v.\\nDelaware, 438 U.S. 154, 155–65 (1978)).\\n Here, the district court held an evidentiary hearing in accordance with\\nFranks. There are three questions in the Franks inquiry: 1) “does the affidavit\\ncontain a false statement?”; 2) “was the false statement made intentionally or\\nwith reckless disregard for the truth?”; and 3) “if the false statement is excised,\\ndoes the remaining content fail to establish probable cause?” Ortega, 854 F.3d\\n\\n\\n 11\\n\\f Case: 18-10580 Document: 00515077500 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\nat 826. All three questions must be answered in the affirmative for the motion\\nto be granted. Id.\\n It is undisputed that Mullican’s statement that Routh St was the address\\nassociated with Glenn’s AT&T account on the date of the upload was incorrect. 6\\nTherefore, Glenn has satisfied the first prong. However, Glenn cannot satisfy\\nthe second prong. Mullican testified at the hearing about her state of mind as\\nshe was completing the affidavit. She expressed she had no doubts as to the\\ncorrectness of the Routh Street address as of August 1st and that she made an\\neffort to get the address correct. The district court found her testimony to be\\ncredible and her mistake to be understandable considering the “relative[ly]\\nopaque nature of the AT&T records.” The district court even went so far as to\\nfind that Mullican was not “even negligent.” We must view Mullican’s\\nstatements in the light most favorable to the district court’s ruling and give\\ndeference to the district court’s credibility determination; in doing so, we see\\nno clear error. 7\\nD. Daubert Challenge\\n Glenn’s final argument is that the district court erred in allowing\\nMullican to testify regarding the images of child pornography she found on\\nGlenn’s computer. Glenn raises this as a challenge under Daubert v. Merrell\\nDow Pharms., Inc., 509 U.S. 579 (1993), which requires the district court to\\nassess “whether the reasoning or methodology underlying the testimony is\\nscientifically valid and . . . whether that reasoning or methodology properly\\ncan be applied to the facts in issue.” Id. at 592–93. According to Glenn,\\n\\n\\n\\n 6 Mullican’s statement was as follows:\\n AT&T responded that during the time the file was uploaded, IP address\\n 99.8.79.141 was assigned to an account registered to the following\\n individual: Michael Glenn, 3500 Routh Street, Dallas, Texas 75219.\\n Service dates: 5-18-2016 through the date of legal process.\\n 7 Because Glenn has not satisfied the second Franks inquiry, we do not reach the third.\\n\\n 12\\n\\f Case: 18-10580 Document: 00515077500 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\n“Mullican was not the proper witness for introduction of the exhibit[s] because\\nDaubert required the person who ran the program that retrieved the image to\\nlay the foundation for the exhibit’s admissibility.” Glenn appears to argue that\\nLehman should have been the one to testify about the images on Glenn’s\\ncomputer because he was the one that imaged the hard drive and could verify\\nthe images actually came from his laptop. Therefore, as Glenn sees it, even if\\nMullican properly understood how “hash values” attach to and identify images\\nbased on her experience at the FBI, she could not testify that the hash values\\non the images she found were the same as those on Glenn’s hard drive.\\n It is not clear to us that Glenn’s argument falls within Daubert, as he\\nseems to be faulting Mullican’s alleged lack of personal knowledge simply\\nbecause she did not run the imaging program. Regardless, our review is for\\nabuse of discretion. United States v. Valencia, 600 F.3d 389, 423 (5th Cir. 2010)\\n(“We review the admission or exclusion of expert testimony for an abuse of\\ndiscretion.”); United States v. Watkins, 591 F.3d 780, 786 (5th Cir. 2009) (“[W]e\\nreview a district court’s evidentiary rulings for an abuse of discretion.”). We\\nfind no abuse of discretion here, as Glenn has not adequately explained why\\nMullican’s personal knowledge is insufficient, nor has he directed us to any\\ncases supporting his position.\\n III. CONCLUSION\\n For the foregoing reasons, we AFFIRM the judgment of the district\\ncourt.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4425953/\", \"author_raw\": \"JAMES E. GRAVES, JR., Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HAYNES"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648700/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Hugh Michael GLENN, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10580 Document: 00515077500 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n\n No. 18-10580\n Fifth Circuit\n\n FILED\n August 15, 2019\n\nUNITED STATES OF AMERICA, Lyle W. Cayce\n Clerk\n Plaintiff - Appellee\n\nv.\n\nHUGH MICHAEL GLENN,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore HAYNES, GRAVES, and DUNCAN, Circuit Judges.\nJAMES E. GRAVES, JR., Circuit Judge:\n Hugh Michael Glenn appeals his conviction for one count of transporting\nand shipping child pornography in violation of 18 U.S.C. §2252A(a)(1) and one\ncount of accessing child pornography with intent to view it in violation of 18\nU.S.C. § 2252(a)(4). Finding no error in the proceedings below, we affirm.\n I. BACKGROUND\nA. Government Obtains a Warrant and Seizes Glenn’s Computer\n On or about August 30, 2016, the Dallas Police Department (“DPD”)\nreceived a “cyber tip” from the National Center for Missing and Exploited\nChildren (“NCMEC”). NCMEC informed the DPD that Chatstep, “an\nanonymous online chatting platform,” had reported that someone with the\n\f Case: 18-10580 Document: 00515077500 Page: 2 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\nusername “TexPerv” uploaded an image of a prepubescent male exposed in a\nlewd and lascivious manner to its site on August 1, 2016. According to\nChatstep, the user had also accessed several chat rooms with names signaling\na sexual interest in children, including “UdnreraegAvction,” “byyyrooom,” and\n“UdneraegHvmiliation.”\n DPD Detective Chris De Leon issued an administrative subpoena to\nAT&T for the subscriber information linked to the IP address in the cyber tip.\nAT&T’s records showed Hugh Michael Glenn as the subscriber for the\ndesignated IP address. After running a search on Glenn’s telephone number,\nDeLeon found Glenn listed as a registered sex offender with a prior federal\nconviction for transporting and shipping child pornography. DeLeon began\nsurveilling the address listed on the sex offender registry and the AT&T\ndocuments; in doing so, he observed a UPS package on the doorstep addressed\nto Hugh Glenn.\n On or about September 8, 2016, DeLeon contacted Agent Jennifer\nMullican, a member of the FBI’s Child Exploitation Task Force, for assistance.\nBased on the information Mullican collected from DeLeon, including the AT&T\nrecords, Mullican sought a warrant to search the residence of 3500 Routh for\ncomputer equipment and electronic material. In her affidavit in support of the\nwarrant, Mullican listed 3500 Routh St as the address where Glenn was\nreceiving internet service on August 1, 2016, the date the child pornography\nimage was uploaded to Chatstep. However, the AT&T documents actually\nshowed Glenn was receiving internet service at 3025 West Forest on August\n1st; he transferred his billing address to 3500 Routh St on August 2nd and\nbegan service at Routh St on August 9th. Because Chatstep reported the\npornography was uploaded on August 1st, Glenn could not have uploaded the\npicture from 3500 Routh, as Mullican’s affidavit stated. Accordingly,\n\n\n 2\n\f Case: 18-10580 Document: 00515077500 Page: 3 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\nMullican’s statement in the affidavit about where the upload likely occurred\nwas incorrect.\n The mistake went unnoticed and the magistrate judge issued a warrant\nto search the Routh St address. Officers executed the search warrant on\nSeptember 14, 2016. Glenn was present at the time of the search and agreed\nto speak with law enforcement, waiving his Miranda rights. During this\ninterview, Glenn admitted that he visited Chatstep, that he was user TexPerv,\nand that he had downloaded and uploaded child pornography. He also\nacknowledged that the officers would find child pornography on his laptop.\nGlenn admitted he had seen the specific image referenced in the cyber tip, and\nalthough he said he did not remember sharing the image, he also stated,\n“Umm, I obviously saved [the image] if I sent it out.” Glenn signed and dated\nthe back of the image.\n While Mullican was interviewing Glenn, FBI computer scientist\nAnthony Lehman performed an initial triage of Glenn’s laptop to determine if\nthe computer was encrypted and to see if he could uncover any information\nhelpful to the officers as they interviewed Glenn. Lehman used a software\nprogram “to do a quick analysis” of the computer’s “allocated space,” and he\nused a different program to recover deleted files from the hard drive’s\n“unallocated space.” 1 These searches were consistent with FBI protocol.\nLehman’s searches of Glenn’s computer at the scene recovered many images of\nchild pornography in both the allocated and unallocated spaces.\n\n\n\n\n 1 “Allocated space” is space on a hard drive dedicated to storing files used or saved by\nthe user so they can be accessed at a later time. After a file is deleted, it is stored in a hard\ndrive’s “unallocated space” until the hard drive is either permanently wiped using special\nsoftware or the files are overwritten by other actions of the user. A user generally cannot\naccess files in the unallocated space of the hard drive without special software, which Glenn\ndid not have.\n 3\n\f Case: 18-10580 Document: 00515077500 Page: 4 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\nB. Glenn’s Computer Installs Update in Government Custody\n While back at the laboratory after the execution of the search warrant,\nLehman attempted to create an “image” 2 of the hard drive before the agents\nsearched it further. In accordance with FBI procedures, Lehman removed the\nhard drive from the computer and tried to image it. However, the hard drive\nhad a “non-standard” connector that was proprietary to its manufacturer and\nLehman ran into several issues, requiring multiple attempts to image the\ndrive.\n Lehman sought help from his colleagues, but nobody had “seen this type\nof hard drive.” He tried again using a different software program, but that\nattempt also failed. Lehman then tried two more times, once from a CD and\nonce from a USB drive. Importantly, when Lehman attempted to run a\nprogram from the USB drive, the computer “didn’t boot to the USB” as Lehman\nexpected it would. Instead, “it tried to start up Windows,” and Lehman\n“powered off the machine.”\n When Glenn’s computer “tried to start up Windows,” updates installed\nautomatically onto the hard drive. 3 Although the update did not affect the\n“thumb cache” 4 of the computer—which contained numerous images of child\npornography—one of the updates was a defrag.exe process that reallocated\ninformation on the drive so that data could be written more efficiently. Lehman\n\n\n\n In this context, an image of a hard drive is “an identical copy of [the] hard drive.”\n 2\n\n A Windows update proceeds in two steps: the updates are downloaded onto the\n 3\n\ncomputer either automatically or by the user; and then the user can either install the updates\nimmediately by restarting the computer or they will automatically install the next time the\ncomputer is restarted. The updates on Glenn’s laptop had automatically downloaded to\nGlenn’s computer the day before the execution of the search warrant; however, because Glenn\nhad not restarted his computer, the updates had not yet been installed. It is undisputed that\nthe Windows update did not contain images of child pornography.\n 4 A “thumb cache” is a database file that “basically stores every picture that you have\n\nknowingly opened on the computer” to help files load faster when they are opened\nsubsequently. The thumb cache is located in the allocated space on the hard drive.\n 4\n\f Case: 18-10580 Document: 00515077500 Page: 5 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\ntestified that the defrag did not “completely actually run” and he “did not\npurposefully execute defrag.exe.” Glenn contends that the update destroyed at\nleast ten gigabytes of data in the unallocated space of his hard drive.\n Eventually, Lehman was able to image the hard drive. All of the\ninformation about Lehman’s attempts to image Glenn’s hard drive, including\nthe Windows update, was logged in the computer’s registry. Lehman was\nsupposed to write a “302 report” summarizing his efforts to image Glenn’s hard\ndrive, but Lehman failed to make his 302 report until about five months before\ntrial. Lehman testified that this delay was an “oversight” because he “thought\nthat [he] had written it” earlier.\n Glenn’s computer expert, Brian Ingram, was so disturbed by Lehman’s\nfailures that he brought them to the attention of the FBI. However, Ingram\nconfirmed that he had no reason to doubt that 2,000 images of child\npornography were on Glenn’s computer before the FBI took custody of the\ncomputer. Additionally, Tom Petrowski, Division Counsel for the FBI, testified\nthat Ingram said he thought Glenn was “guilty as sin.”\n After the hard drive was imaged, Mullican reviewed it. She located\nnumerous images of child pornography—including the image referenced in the\ncyber tip—on Glenn’s hard drive. Mullican also found explicit stories on the\nhard drive that depicted “the sexual exploitation of minor boys.”\nC. Pretrial Proceedings, the Trial, and Sentencing\n Glenn was charged in a superseding indictment with one count of\ntransporting and shipping child pornography in violation of 18 U.S.C.\n§ 2252A(a)(1) and one count of accessing child pornography with intent to view\nit in violation of 18 U.S.C. § 2252(a)(4). Count 1 related to the image user\nTexPerv uploaded to Chatstep on August 1; Count 2 related to four images\nfound in Glenn’s thumb cache.\n\n\n 5\n\f Case: 18-10580 Document: 00515077500 Page: 6 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\n Glenn moved to suppress the evidence obtained during the search once\nit came to light that Mullican’s affidavit incorrectly stated Glenn’s address was\nRouth St at the time the image was uploaded to Chatstep. No one contested\nthat Mullican’s affidavit supporting the warrant contained a false statement,\nand the district court judge therefore conducted an evidentiary hearing in\naccordance with Franks v. Delaware, 438 U.S. 154 (1978). After asking\nMullican a number of questions, the district court denied the motion to\nsuppress, finding her testimony credible and concluding that her failure to\nstate the correct address “simply was a mistake.”\n Glenn also moved to dismiss the indictment “due to prosecutorial\nmisconduct” because Lehman allowed the computer to reboot in his custody,\nwhich triggered the installation of the Windows update and defrag program,\nresulting in at least ten gigabytes of destroyed data. The district court carried\nthe motion to dismiss with the case so that it could hear live testimony from\nboth Lehman and Glenn’s computer experts, but it indicated that it was\nunlikely to grant the motion.\n During trial, Mullican testified that she found numerous images of child\npornography on Glenn’s computer, including the image uploaded to Chatstep.\nGlenn objected, arguing that Mullican was not an expert in “hash values” used\nto identify specific images, nor was she an expert in the program used to find\nthe illicit images on Glenn’s computer. The district court overruled the\nobjection and admitted the images into evidence. After trial, the district court\ndenied Glenn’s motion to dismiss. It also denied Glenn’s request for a spoliation\nof the evidence instruction because it found that there was “not sufficient\nevidence of bad faith.” The jury convicted Glenn on both counts of the\nindictment. The district court sentenced Glenn to a total of 360 months of\nimprisonment.\n Glenn timely appealed.\n 6\n\f Case: 18-10580 Document: 00515077500 Page: 7 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\n II. DISCUSSION\n Glenn raises four issues on appeal to challenge his convictions. He does\nnot challenge his sentence. We address each of his arguments in turn.\nA. Motion to Dismiss for Prosecutorial Misconduct\n Glenn first argues that the district court erred by denying his motion to\ndismiss. He bases this argument on two different legal theories: 1) the\nGovernment suppressed exculpatory evidence under Brady v. Maryland, 373\nU.S. 83 (1963), and 2) the Government failed to preserve exculpatory evidence\nunder Arizona v. Youngblood, 488 U.S. 51 (1988). As the Government observes,\neach argument is based on the same facts: primarily that while Glenn’s laptop\nwas in Government custody, the Windows update “destroyed” at least ten\ngigabytes of data in the unallocated space, and the Government did not\nspecifically communicate this fact to Glenn prior to trial. Glenn contends he is\nentitled to dismissal of the indictment with prejudice on these bases.\n 1. Standard of Review\n “We generally review whether the government violated Brady de novo,\nalthough even when reviewing a Brady claim de novo, we must proceed with\ndeference to the factual findings underlying the district court’s\ndecision[.]” United States v. Cessa, 861 F.3d 121, 128 (5th Cir. 2017) (quoting\nUnited States v. Brown, 650 F.3d 581, 589 (5th Cir. 2011) (internal quotation\nmarks and citations omitted)). “We review a district court’s bad-faith\ndetermination for clear error.” United States v. McNealy, 625 F.3d 858, 868–69\n(5th Cir. 2010). While this court has not “foreclose[d] the possibility that\ngovernmental ineptitude and carelessness could be so abhorrent as to warrant\na dismissal with prejudice,” United States v. Fulmer, 722 F.2d 1192, 1196 (5th\nCir. 1983), “mere error or oversight is neither gross negligence nor intentional\nmisconduct.” United States v. Swenson, 894 F.3d 677, 684 (5th Cir.) (quoting\n\n\n 7\n\f Case: 18-10580 Document: 00515077500 Page: 8 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\nUnited States v. Fulmer, 722 F.2d 1192, 1195 (5th Cir. 1983) (internal\nquotations omitted)), cert. denied, 139 S. Ct. 469 (2018).\n 2. Brady Argument\n “To establish a Brady violation, a defendant must show: (1) the evidence\nat issue was favorable to the accused, either because it was exculpatory or\nimpeaching; (2) the evidence was suppressed by the prosecution; and (3) the\nevidence was material.” United States v. Dvorin, 817 F.3d 438, 450 (5th Cir.\n2016). Bad faith is irrelevant to whether the Government has met its\nobligations under Brady. See Youngblood, 488 U.S. at 57. Both Glenn and the\nGovernment discuss all three elements of the Brady analysis; however, we find\nthat Glenn cannot show the overwritten data was material. Accordingly, we do\nnot address the first two elements.\n “Evidence is material if there is a reasonable probability that, had the\nevidence been disclosed to the defense, the result of the proceeding would have\nbeen different.” Dvorin, 817 F.3d at 451 (quoting Brown, 650 F.3d at 588\n(internal quotation marks omitted)). Stated differently, the favorable evidence\nmust “put the whole case in such a different light as to undermine confidence\nin the verdict.” Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting Kyles v.\nWhitley, 514 U.S. 419, 435 (1995)).\n Glenn cannot show that, had he had access to the overwritten data, the\noutcome of the trial would have been different. As for the uploaded image that\nwas the subject of Count I, Glenn admitted having seen the uploaded image,\nand while he told Mullican he did not remember sharing the image, he later\nstated, “Umm, I obviously saved [the image] if I sent it out.” Taken together\nwith the facts that Glenn admitted to being user “TexPerv,” he signed and\ndated the back of the image, and that the only other person to have had access\nto his computer was confirmed to have been at work on the date of the upload,\nthere is little likelihood that the overwritten data would have changed the\n 8\n\f Case: 18-10580 Document: 00515077500 Page: 9 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\noutcome of this case, even assuming it had some exculpatory or impeachment\nvalue. 5 As to the four images that made up Count II, Glenn’s own expert agreed\nthat the Windows update would not have moved files in Glenn’s thumb cache.\nMoreover, Glenn told Mullican she would find child pornography on his\ncomputer. Consequently, Glenn’s Brady arguments are without merit.\n 3. Youngblood Claim\n Unlike Brady, where the good or bad faith of the officer is irrelevant,\nYoungblood establishes that “the Due Process Clause requires a different\nresult when we deal with the failure of the State to preserve evidentiary\nmaterial of which no more can be said than that it . . . might have exonerated\nthe defendant.” Youngblood, 488 U.S. 57 (emphasis added). Glenn states\nseveral times that the overwritten data included metadata that had\n“potentially exculpatory” value, but also argues that the “evidence was of\ncritical importance to the case and had exculpatory value.” We agree that the\noverwritten data was at most possibly exculpatory, and therefore Glenn must\nshow the district court clearly erred in determining the Government did not\nengage in bad faith in overwriting the data. See McNealy, 625 F.3d at 868–69\n(concluding “potentially available” exculpatory evidence “should be considered\n‘potentially useful evidence’ rather than ‘material exculpatory evidence.’”).\n The district court concluded, albeit in the context of a spoliation\ninstruction, that Lehman’s actions in allowing the Windows update to install\nwere at most negligent. This is not clear error, especially where the district\ncourt waited to rule on Glenn’s motion until hearing testimony both from\nGlenn’s computer expert and from Lehman regarding his actions leading to the\noverwritten data. See United States v. Anderson, 755 F.3d 782, 791 (5th Cir.\n\n\n 5 To the extent Glenn implied at oral argument that the Government may have\nintentionally placed the images on Glenn’s computer, there is simply nothing in the record to\nsupport such a contention.\n 9\n\f Case: 18-10580 Document: 00515077500 Page: 10 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\n2014) (“[W]e defer to the district court’s credibility determination . . . .”).\nGlenn’s Youngblood claim is therefore without merit.\nB. Spoliation Instruction\n Glenn next argues that the district court erred by denying his request\nfor a spoliation instruction regarding Lehman’s failure to stop the Windows\nupdate on his computer. We review the district court’s denial of such an\ninstruction for abuse of discretion. United States v. Valas, 822 F.3d 228, 239\n(5th Cir. 2016).\n To receive a spoliation instruction, Glenn had to show that the\nGovernment acted in bad faith or with bad conduct. Valas, 822 F.3d at 239. As\nwe noted above, he has not done so. This case is comparable to Valas, where\nthis court affirmed the denial of a spoliation instruction where a government\ntechnician inadvertently destroyed data on the defendant’s phone by removing\nthe phone’s data chip after multiple unsuccessful attempts by several officials\nto access the data. Valas, 822 F.3d at 239. Here, the overwriting of data\noccurred when Lehman, after several failed attempts to image the laptop, tried\na different imaging method and inadvertently triggered an automatic update\nthat had already been installed on Glenn’s computer, thereby erasing data on\nGlenn’s hard drive. We see no meaningful difference between this case and\nValas. Accordingly, the district court did not abuse its discretion in finding no\nbad faith, nor did the district court err by deciding the bad faith issue itself\nrather than sending it to the jury. See United States v. Wise, 221 F.3d 140, 156\n(5th Cir. 2000).\nC. Motion to Suppress\n Glenn contends that the district court erred in denying his motion to\nsuppress Glenn’s statements and the images found on his computer. He argues\nthe warrant was invalid based on the incorrect address included in Mullican’s\napplication for the search warrant.\n 10\n\f Case: 18-10580 Document: 00515077500 Page: 11 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\n 1. Standard of Review\n We “review[] the ‘[f]actual findings in a ruling on a motion to\nsuppress . . . for clear error’ and questions of law de novo.” United States v.\nJarman, 847 F.3d 259, 264 (5th Cir. 2017) (quoting United States v. Moore, 847\nF.3d 259, 264 (5th Cir. 2017)). “The clearly erroneous standard is particularly\ndeferential where, as here, ‘denial of a suppression motion is based on live oral\ntestimony . . . because the judge had the opportunity to observe the demeanor\nof the witnesses.” Id. (quoting United States v. Robinson, 741 F.3d 588, 594\n(5th Cir. 2014)). We view the evidence in the light most favorable to the\nprevailing party. United States v. Moore, 805 F.3d 590, 593 (5th Cir. 2015).\n 2. Analysis\n Ordinarily, “[t]he Fourth Amendment’s exclusionary rule will not bar the\nadmission of evidence obtained with a warrant later found to be invalid so long\nas the executing officers acted in reasonable reliance on the warrant.” United\nStates v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997). However, “[u]nder the\nSupreme Court’s decision in Franks, a search warrant must be voided if the\ndefendant shows by a preponderance of the evidence that the affidavit\nsupporting the warrant contained a false statement made intentionally or with\nreckless disregard for the truth and, after setting aside the false statement,\nthe affidavit’s remaining content is insufficient to establish probable cause.”\nUnited States v. Ortega, 854 F.3d 818, 826 (5th Cir. 2017) (citing Franks v.\nDelaware, 438 U.S. 154, 155–65 (1978)).\n Here, the district court held an evidentiary hearing in accordance with\nFranks. There are three questions in the Franks inquiry: 1) “does the affidavit\ncontain a false statement?”; 2) “was the false statement made intentionally or\nwith reckless disregard for the truth?”; and 3) “if the false statement is excised,\ndoes the remaining content fail to establish probable cause?” Ortega, 854 F.3d\n\n\n 11\n\f Case: 18-10580 Document: 00515077500 Page: 12 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\nat 826. All three questions must be answered in the affirmative for the motion\nto be granted. Id.\n It is undisputed that Mullican’s statement that Routh St was the address\nassociated with Glenn’s AT&T account on the date of the upload was incorrect. 6\nTherefore, Glenn has satisfied the first prong. However, Glenn cannot satisfy\nthe second prong. Mullican testified at the hearing about her state of mind as\nshe was completing the affidavit. She expressed she had no doubts as to the\ncorrectness of the Routh Street address as of August 1st and that she made an\neffort to get the address correct. The district court found her testimony to be\ncredible and her mistake to be understandable considering the “relative[ly]\nopaque nature of the AT&T records.” The district court even went so far as to\nfind that Mullican was not “even negligent.” We must view Mullican’s\nstatements in the light most favorable to the district court’s ruling and give\ndeference to the district court’s credibility determination; in doing so, we see\nno clear error. 7\nD. Daubert Challenge\n Glenn’s final argument is that the district court erred in allowing\nMullican to testify regarding the images of child pornography she found on\nGlenn’s computer. Glenn raises this as a challenge under Daubert v. Merrell\nDow Pharms., Inc., 509 U.S. 579 (1993), which requires the district court to\nassess “whether the reasoning or methodology underlying the testimony is\nscientifically valid and . . . whether that reasoning or methodology properly\ncan be applied to the facts in issue.” Id. at 592–93. According to Glenn,\n\n\n\n 6 Mullican’s statement was as follows:\n AT&T responded that during the time the file was uploaded, IP address\n 99.8.79.141 was assigned to an account registered to the following\n individual: Michael Glenn, 3500 Routh Street, Dallas, Texas 75219.\n Service dates: 5-18-2016 through the date of legal process.\n 7 Because Glenn has not satisfied the second Franks inquiry, we do not reach the third.\n\n 12\n\f Case: 18-10580 Document: 00515077500 Page: 13 Date Filed: 08/15/2019\n\n\n\n No. 18-10580\n“Mullican was not the proper witness for introduction of the exhibit[s] because\nDaubert required the person who ran the program that retrieved the image to\nlay the foundation for the exhibit’s admissibility.” Glenn appears to argue that\nLehman should have been the one to testify about the images on Glenn’s\ncomputer because he was the one that imaged the hard drive and could verify\nthe images actually came from his laptop. Therefore, as Glenn sees it, even if\nMullican properly understood how “hash values” attach to and identify images\nbased on her experience at the FBI, she could not testify that the hash values\non the images she found were the same as those on Glenn’s hard drive.\n It is not clear to us that Glenn’s argument falls within Daubert, as he\nseems to be faulting Mullican’s alleged lack of personal knowledge simply\nbecause she did not run the imaging program. Regardless, our review is for\nabuse of discretion. United States v. Valencia, 600 F.3d 389, 423 (5th Cir. 2010)\n(“We review the admission or exclusion of expert testimony for an abuse of\ndiscretion.”); United States v. Watkins, 591 F.3d 780, 786 (5th Cir. 2009) (“[W]e\nreview a district court’s evidentiary rulings for an abuse of discretion.”). We\nfind no abuse of discretion here, as Glenn has not adequately explained why\nMullican’s personal knowledge is insufficient, nor has he directed us to any\ncases supporting his position.\n III. CONCLUSION\n For the foregoing reasons, we AFFIRM the judgment of the district\ncourt.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Hugh Michael GLENN, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10580 Document: 00515077500 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 18-10580\\n Fifth Circuit\\n\\n FILED\\n August 15, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nHUGH MICHAEL GLENN,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore HAYNES, GRAVES, and DUNCAN, Circuit Judges.\\nJAMES E. GRAVES, JR., Circuit Judge:\\n Hugh Michael Glenn appeals his conviction for one count of transporting\\nand shipping child pornography in violation of 18 U.S.C. §2252A(a)(1) and one\\ncount of accessing child pornography with intent to view it in violation of 18\\nU.S.C. § 2252(a)(4). Finding no error in the proceedings below, we affirm.\\n I. BACKGROUND\\nA. Government Obtains a Warrant and Seizes Glenn’s Computer\\n On or about August 30, 2016, the Dallas Police Department (“DPD”)\\nreceived a “cyber tip” from the National Center for Missing and Exploited\\nChildren (“NCMEC”). NCMEC informed the DPD that Chatstep, “an\\nanonymous online chatting platform,” had reported that someone with the\\n\\f Case: 18-10580 Document: 00515077500 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\nusername “TexPerv” uploaded an image of a prepubescent male exposed in a\\nlewd and lascivious manner to its site on August 1, 2016. According to\\nChatstep, the user had also accessed several chat rooms with names signaling\\na sexual interest in children, including “UdnreraegAvction,” “byyyrooom,” and\\n“UdneraegHvmiliation.”\\n DPD Detective Chris De Leon issued an administrative subpoena to\\nAT&T for the subscriber information linked to the IP address in the cyber tip.\\nAT&T’s records showed Hugh Michael Glenn as the subscriber for the\\ndesignated IP address. After running a search on Glenn’s telephone number,\\nDeLeon found Glenn listed as a registered sex offender with a prior federal\\nconviction for transporting and shipping child pornography. DeLeon began\\nsurveilling the address listed on the sex offender registry and the AT&T\\ndocuments; in doing so, he observed a UPS package on the doorstep addressed\\nto Hugh Glenn.\\n On or about September 8, 2016, DeLeon contacted Agent Jennifer\\nMullican, a member of the FBI’s Child Exploitation Task Force, for assistance.\\nBased on the information Mullican collected from DeLeon, including the AT&T\\nrecords, Mullican sought a warrant to search the residence of 3500 Routh for\\ncomputer equipment and electronic material. In her affidavit in support of the\\nwarrant, Mullican listed 3500 Routh St as the address where Glenn was\\nreceiving internet service on August 1, 2016, the date the child pornography\\nimage was uploaded to Chatstep. However, the AT&T documents actually\\nshowed Glenn was receiving internet service at 3025 West Forest on August\\n1st; he transferred his billing address to 3500 Routh St on August 2nd and\\nbegan service at Routh St on August 9th. Because Chatstep reported the\\npornography was uploaded on August 1st, Glenn could not have uploaded the\\npicture from 3500 Routh, as Mullican’s affidavit stated. Accordingly,\\n\\n\\n 2\\n\\f Case: 18-10580 Document: 00515077500 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\nMullican’s statement in the affidavit about where the upload likely occurred\\nwas incorrect.\\n The mistake went unnoticed and the magistrate judge issued a warrant\\nto search the Routh St address. Officers executed the search warrant on\\nSeptember 14, 2016. Glenn was present at the time of the search and agreed\\nto speak with law enforcement, waiving his Miranda rights. During this\\ninterview, Glenn admitted that he visited Chatstep, that he was user TexPerv,\\nand that he had downloaded and uploaded child pornography. He also\\nacknowledged that the officers would find child pornography on his laptop.\\nGlenn admitted he had seen the specific image referenced in the cyber tip, and\\nalthough he said he did not remember sharing the image, he also stated,\\n“Umm, I obviously saved [the image] if I sent it out.” Glenn signed and dated\\nthe back of the image.\\n While Mullican was interviewing Glenn, FBI computer scientist\\nAnthony Lehman performed an initial triage of Glenn’s laptop to determine if\\nthe computer was encrypted and to see if he could uncover any information\\nhelpful to the officers as they interviewed Glenn. Lehman used a software\\nprogram “to do a quick analysis” of the computer’s “allocated space,” and he\\nused a different program to recover deleted files from the hard drive’s\\n“unallocated space.” 1 These searches were consistent with FBI protocol.\\nLehman’s searches of Glenn’s computer at the scene recovered many images of\\nchild pornography in both the allocated and unallocated spaces.\\n\\n\\n\\n\\n 1 “Allocated space” is space on a hard drive dedicated to storing files used or saved by\\nthe user so they can be accessed at a later time. After a file is deleted, it is stored in a hard\\ndrive’s “unallocated space” until the hard drive is either permanently wiped using special\\nsoftware or the files are overwritten by other actions of the user. A user generally cannot\\naccess files in the unallocated space of the hard drive without special software, which Glenn\\ndid not have.\\n 3\\n\\f Case: 18-10580 Document: 00515077500 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\nB. Glenn’s Computer Installs Update in Government Custody\\n While back at the laboratory after the execution of the search warrant,\\nLehman attempted to create an “image” 2 of the hard drive before the agents\\nsearched it further. In accordance with FBI procedures, Lehman removed the\\nhard drive from the computer and tried to image it. However, the hard drive\\nhad a “non-standard” connector that was proprietary to its manufacturer and\\nLehman ran into several issues, requiring multiple attempts to image the\\ndrive.\\n Lehman sought help from his colleagues, but nobody had “seen this type\\nof hard drive.” He tried again using a different software program, but that\\nattempt also failed. Lehman then tried two more times, once from a CD and\\nonce from a USB drive. Importantly, when Lehman attempted to run a\\nprogram from the USB drive, the computer “didn’t boot to the USB” as Lehman\\nexpected it would. Instead, “it tried to start up Windows,” and Lehman\\n“powered off the machine.”\\n When Glenn’s computer “tried to start up Windows,” updates installed\\nautomatically onto the hard drive. 3 Although the update did not affect the\\n“thumb cache” 4 of the computer—which contained numerous images of child\\npornography—one of the updates was a defrag.exe process that reallocated\\ninformation on the drive so that data could be written more efficiently. Lehman\\n\\n\\n\\n In this context, an image of a hard drive is “an identical copy of [the] hard drive.”\\n 2\\n\\n A Windows update proceeds in two steps: the updates are downloaded onto the\\n 3\\n\\ncomputer either automatically or by the user; and then the user can either install the updates\\nimmediately by restarting the computer or they will automatically install the next time the\\ncomputer is restarted. The updates on Glenn’s laptop had automatically downloaded to\\nGlenn’s computer the day before the execution of the search warrant; however, because Glenn\\nhad not restarted his computer, the updates had not yet been installed. It is undisputed that\\nthe Windows update did not contain images of child pornography.\\n 4 A “thumb cache” is a database file that “basically stores every picture that you have\\n\\nknowingly opened on the computer” to help files load faster when they are opened\\nsubsequently. The thumb cache is located in the allocated space on the hard drive.\\n 4\\n\\f Case: 18-10580 Document: 00515077500 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\ntestified that the defrag did not “completely actually run” and he “did not\\npurposefully execute defrag.exe.” Glenn contends that the update destroyed at\\nleast ten gigabytes of data in the unallocated space of his hard drive.\\n Eventually, Lehman was able to image the hard drive. All of the\\ninformation about Lehman’s attempts to image Glenn’s hard drive, including\\nthe Windows update, was logged in the computer’s registry. Lehman was\\nsupposed to write a “302 report” summarizing his efforts to image Glenn’s hard\\ndrive, but Lehman failed to make his 302 report until about five months before\\ntrial. Lehman testified that this delay was an “oversight” because he “thought\\nthat [he] had written it” earlier.\\n Glenn’s computer expert, Brian Ingram, was so disturbed by Lehman’s\\nfailures that he brought them to the attention of the FBI. However, Ingram\\nconfirmed that he had no reason to doubt that 2,000 images of child\\npornography were on Glenn’s computer before the FBI took custody of the\\ncomputer. Additionally, Tom Petrowski, Division Counsel for the FBI, testified\\nthat Ingram said he thought Glenn was “guilty as sin.”\\n After the hard drive was imaged, Mullican reviewed it. She located\\nnumerous images of child pornography—including the image referenced in the\\ncyber tip—on Glenn’s hard drive. Mullican also found explicit stories on the\\nhard drive that depicted “the sexual exploitation of minor boys.”\\nC. Pretrial Proceedings, the Trial, and Sentencing\\n Glenn was charged in a superseding indictment with one count of\\ntransporting and shipping child pornography in violation of 18 U.S.C.\\n§ 2252A(a)(1) and one count of accessing child pornography with intent to view\\nit in violation of 18 U.S.C. § 2252(a)(4). Count 1 related to the image user\\nTexPerv uploaded to Chatstep on August 1; Count 2 related to four images\\nfound in Glenn’s thumb cache.\\n\\n\\n 5\\n\\f Case: 18-10580 Document: 00515077500 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\n Glenn moved to suppress the evidence obtained during the search once\\nit came to light that Mullican’s affidavit incorrectly stated Glenn’s address was\\nRouth St at the time the image was uploaded to Chatstep. No one contested\\nthat Mullican’s affidavit supporting the warrant contained a false statement,\\nand the district court judge therefore conducted an evidentiary hearing in\\naccordance with Franks v. Delaware, 438 U.S. 154 (1978). After asking\\nMullican a number of questions, the district court denied the motion to\\nsuppress, finding her testimony credible and concluding that her failure to\\nstate the correct address “simply was a mistake.”\\n Glenn also moved to dismiss the indictment “due to prosecutorial\\nmisconduct” because Lehman allowed the computer to reboot in his custody,\\nwhich triggered the installation of the Windows update and defrag program,\\nresulting in at least ten gigabytes of destroyed data. The district court carried\\nthe motion to dismiss with the case so that it could hear live testimony from\\nboth Lehman and Glenn’s computer experts, but it indicated that it was\\nunlikely to grant the motion.\\n During trial, Mullican testified that she found numerous images of child\\npornography on Glenn’s computer, including the image uploaded to Chatstep.\\nGlenn objected, arguing that Mullican was not an expert in “hash values” used\\nto identify specific images, nor was she an expert in the program used to find\\nthe illicit images on Glenn’s computer. The district court overruled the\\nobjection and admitted the images into evidence. After trial, the district court\\ndenied Glenn’s motion to dismiss. It also denied Glenn’s request for a spoliation\\nof the evidence instruction because it found that there was “not sufficient\\nevidence of bad faith.” The jury convicted Glenn on both counts of the\\nindictment. The district court sentenced Glenn to a total of 360 months of\\nimprisonment.\\n Glenn timely appealed.\\n 6\\n\\f Case: 18-10580 Document: 00515077500 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\n II. DISCUSSION\\n Glenn raises four issues on appeal to challenge his convictions. He does\\nnot challenge his sentence. We address each of his arguments in turn.\\nA. Motion to Dismiss for Prosecutorial Misconduct\\n Glenn first argues that the district court erred by denying his motion to\\ndismiss. He bases this argument on two different legal theories: 1) the\\nGovernment suppressed exculpatory evidence under Brady v. Maryland, 373\\nU.S. 83 (1963), and 2) the Government failed to preserve exculpatory evidence\\nunder Arizona v. Youngblood, 488 U.S. 51 (1988). As the Government observes,\\neach argument is based on the same facts: primarily that while Glenn’s laptop\\nwas in Government custody, the Windows update “destroyed” at least ten\\ngigabytes of data in the unallocated space, and the Government did not\\nspecifically communicate this fact to Glenn prior to trial. Glenn contends he is\\nentitled to dismissal of the indictment with prejudice on these bases.\\n 1. Standard of Review\\n “We generally review whether the government violated Brady de novo,\\nalthough even when reviewing a Brady claim de novo, we must proceed with\\ndeference to the factual findings underlying the district court’s\\ndecision[.]” United States v. Cessa, 861 F.3d 121, 128 (5th Cir. 2017) (quoting\\nUnited States v. Brown, 650 F.3d 581, 589 (5th Cir. 2011) (internal quotation\\nmarks and citations omitted)). “We review a district court’s bad-faith\\ndetermination for clear error.” United States v. McNealy, 625 F.3d 858, 868–69\\n(5th Cir. 2010). While this court has not “foreclose[d] the possibility that\\ngovernmental ineptitude and carelessness could be so abhorrent as to warrant\\na dismissal with prejudice,” United States v. Fulmer, 722 F.2d 1192, 1196 (5th\\nCir. 1983), “mere error or oversight is neither gross negligence nor intentional\\nmisconduct.” United States v. Swenson, 894 F.3d 677, 684 (5th Cir.) (quoting\\n\\n\\n 7\\n\\f Case: 18-10580 Document: 00515077500 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\nUnited States v. Fulmer, 722 F.2d 1192, 1195 (5th Cir. 1983) (internal\\nquotations omitted)), cert. denied, 139 S. Ct. 469 (2018).\\n 2. Brady Argument\\n “To establish a Brady violation, a defendant must show: (1) the evidence\\nat issue was favorable to the accused, either because it was exculpatory or\\nimpeaching; (2) the evidence was suppressed by the prosecution; and (3) the\\nevidence was material.” United States v. Dvorin, 817 F.3d 438, 450 (5th Cir.\\n2016). Bad faith is irrelevant to whether the Government has met its\\nobligations under Brady. See Youngblood, 488 U.S. at 57. Both Glenn and the\\nGovernment discuss all three elements of the Brady analysis; however, we find\\nthat Glenn cannot show the overwritten data was material. Accordingly, we do\\nnot address the first two elements.\\n “Evidence is material if there is a reasonable probability that, had the\\nevidence been disclosed to the defense, the result of the proceeding would have\\nbeen different.” Dvorin, 817 F.3d at 451 (quoting Brown, 650 F.3d at 588\\n(internal quotation marks omitted)). Stated differently, the favorable evidence\\nmust “put the whole case in such a different light as to undermine confidence\\nin the verdict.” Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting Kyles v.\\nWhitley, 514 U.S. 419, 435 (1995)).\\n Glenn cannot show that, had he had access to the overwritten data, the\\noutcome of the trial would have been different. As for the uploaded image that\\nwas the subject of Count I, Glenn admitted having seen the uploaded image,\\nand while he told Mullican he did not remember sharing the image, he later\\nstated, “Umm, I obviously saved [the image] if I sent it out.” Taken together\\nwith the facts that Glenn admitted to being user “TexPerv,” he signed and\\ndated the back of the image, and that the only other person to have had access\\nto his computer was confirmed to have been at work on the date of the upload,\\nthere is little likelihood that the overwritten data would have changed the\\n 8\\n\\f Case: 18-10580 Document: 00515077500 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\noutcome of this case, even assuming it had some exculpatory or impeachment\\nvalue. 5 As to the four images that made up Count II, Glenn’s own expert agreed\\nthat the Windows update would not have moved files in Glenn’s thumb cache.\\nMoreover, Glenn told Mullican she would find child pornography on his\\ncomputer. Consequently, Glenn’s Brady arguments are without merit.\\n 3. Youngblood Claim\\n Unlike Brady, where the good or bad faith of the officer is irrelevant,\\nYoungblood establishes that “the Due Process Clause requires a different\\nresult when we deal with the failure of the State to preserve evidentiary\\nmaterial of which no more can be said than that it . . . might have exonerated\\nthe defendant.” Youngblood, 488 U.S. 57 (emphasis added). Glenn states\\nseveral times that the overwritten data included metadata that had\\n“potentially exculpatory” value, but also argues that the “evidence was of\\ncritical importance to the case and had exculpatory value.” We agree that the\\noverwritten data was at most possibly exculpatory, and therefore Glenn must\\nshow the district court clearly erred in determining the Government did not\\nengage in bad faith in overwriting the data. See McNealy, 625 F.3d at 868–69\\n(concluding “potentially available” exculpatory evidence “should be considered\\n‘potentially useful evidence’ rather than ‘material exculpatory evidence.’”).\\n The district court concluded, albeit in the context of a spoliation\\ninstruction, that Lehman’s actions in allowing the Windows update to install\\nwere at most negligent. This is not clear error, especially where the district\\ncourt waited to rule on Glenn’s motion until hearing testimony both from\\nGlenn’s computer expert and from Lehman regarding his actions leading to the\\noverwritten data. See United States v. Anderson, 755 F.3d 782, 791 (5th Cir.\\n\\n\\n 5 To the extent Glenn implied at oral argument that the Government may have\\nintentionally placed the images on Glenn’s computer, there is simply nothing in the record to\\nsupport such a contention.\\n 9\\n\\f Case: 18-10580 Document: 00515077500 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\n2014) (“[W]e defer to the district court’s credibility determination . . . .”).\\nGlenn’s Youngblood claim is therefore without merit.\\nB. Spoliation Instruction\\n Glenn next argues that the district court erred by denying his request\\nfor a spoliation instruction regarding Lehman’s failure to stop the Windows\\nupdate on his computer. We review the district court’s denial of such an\\ninstruction for abuse of discretion. United States v. Valas, 822 F.3d 228, 239\\n(5th Cir. 2016).\\n To receive a spoliation instruction, Glenn had to show that the\\nGovernment acted in bad faith or with bad conduct. Valas, 822 F.3d at 239. As\\nwe noted above, he has not done so. This case is comparable to Valas, where\\nthis court affirmed the denial of a spoliation instruction where a government\\ntechnician inadvertently destroyed data on the defendant’s phone by removing\\nthe phone’s data chip after multiple unsuccessful attempts by several officials\\nto access the data. Valas, 822 F.3d at 239. Here, the overwriting of data\\noccurred when Lehman, after several failed attempts to image the laptop, tried\\na different imaging method and inadvertently triggered an automatic update\\nthat had already been installed on Glenn’s computer, thereby erasing data on\\nGlenn’s hard drive. We see no meaningful difference between this case and\\nValas. Accordingly, the district court did not abuse its discretion in finding no\\nbad faith, nor did the district court err by deciding the bad faith issue itself\\nrather than sending it to the jury. See United States v. Wise, 221 F.3d 140, 156\\n(5th Cir. 2000).\\nC. Motion to Suppress\\n Glenn contends that the district court erred in denying his motion to\\nsuppress Glenn’s statements and the images found on his computer. He argues\\nthe warrant was invalid based on the incorrect address included in Mullican’s\\napplication for the search warrant.\\n 10\\n\\f Case: 18-10580 Document: 00515077500 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\n 1. Standard of Review\\n We “review[] the ‘[f]actual findings in a ruling on a motion to\\nsuppress . . . for clear error’ and questions of law de novo.” United States v.\\nJarman, 847 F.3d 259, 264 (5th Cir. 2017) (quoting United States v. Moore, 847\\nF.3d 259, 264 (5th Cir. 2017)). “The clearly erroneous standard is particularly\\ndeferential where, as here, ‘denial of a suppression motion is based on live oral\\ntestimony . . . because the judge had the opportunity to observe the demeanor\\nof the witnesses.” Id. (quoting United States v. Robinson, 741 F.3d 588, 594\\n(5th Cir. 2014)). We view the evidence in the light most favorable to the\\nprevailing party. United States v. Moore, 805 F.3d 590, 593 (5th Cir. 2015).\\n 2. Analysis\\n Ordinarily, “[t]he Fourth Amendment’s exclusionary rule will not bar the\\nadmission of evidence obtained with a warrant later found to be invalid so long\\nas the executing officers acted in reasonable reliance on the warrant.” United\\nStates v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997). However, “[u]nder the\\nSupreme Court’s decision in Franks, a search warrant must be voided if the\\ndefendant shows by a preponderance of the evidence that the affidavit\\nsupporting the warrant contained a false statement made intentionally or with\\nreckless disregard for the truth and, after setting aside the false statement,\\nthe affidavit’s remaining content is insufficient to establish probable cause.”\\nUnited States v. Ortega, 854 F.3d 818, 826 (5th Cir. 2017) (citing Franks v.\\nDelaware, 438 U.S. 154, 155–65 (1978)).\\n Here, the district court held an evidentiary hearing in accordance with\\nFranks. There are three questions in the Franks inquiry: 1) “does the affidavit\\ncontain a false statement?”; 2) “was the false statement made intentionally or\\nwith reckless disregard for the truth?”; and 3) “if the false statement is excised,\\ndoes the remaining content fail to establish probable cause?” Ortega, 854 F.3d\\n\\n\\n 11\\n\\f Case: 18-10580 Document: 00515077500 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\nat 826. All three questions must be answered in the affirmative for the motion\\nto be granted. Id.\\n It is undisputed that Mullican’s statement that Routh St was the address\\nassociated with Glenn’s AT&T account on the date of the upload was incorrect. 6\\nTherefore, Glenn has satisfied the first prong. However, Glenn cannot satisfy\\nthe second prong. Mullican testified at the hearing about her state of mind as\\nshe was completing the affidavit. She expressed she had no doubts as to the\\ncorrectness of the Routh Street address as of August 1st and that she made an\\neffort to get the address correct. The district court found her testimony to be\\ncredible and her mistake to be understandable considering the “relative[ly]\\nopaque nature of the AT&T records.” The district court even went so far as to\\nfind that Mullican was not “even negligent.” We must view Mullican’s\\nstatements in the light most favorable to the district court’s ruling and give\\ndeference to the district court’s credibility determination; in doing so, we see\\nno clear error. 7\\nD. Daubert Challenge\\n Glenn’s final argument is that the district court erred in allowing\\nMullican to testify regarding the images of child pornography she found on\\nGlenn’s computer. Glenn raises this as a challenge under Daubert v. Merrell\\nDow Pharms., Inc., 509 U.S. 579 (1993), which requires the district court to\\nassess “whether the reasoning or methodology underlying the testimony is\\nscientifically valid and . . . whether that reasoning or methodology properly\\ncan be applied to the facts in issue.” Id. at 592–93. According to Glenn,\\n\\n\\n\\n 6 Mullican’s statement was as follows:\\n AT&T responded that during the time the file was uploaded, IP address\\n 99.8.79.141 was assigned to an account registered to the following\\n individual: Michael Glenn, 3500 Routh Street, Dallas, Texas 75219.\\n Service dates: 5-18-2016 through the date of legal process.\\n 7 Because Glenn has not satisfied the second Franks inquiry, we do not reach the third.\\n\\n 12\\n\\f Case: 18-10580 Document: 00515077500 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-10580\\n“Mullican was not the proper witness for introduction of the exhibit[s] because\\nDaubert required the person who ran the program that retrieved the image to\\nlay the foundation for the exhibit’s admissibility.” Glenn appears to argue that\\nLehman should have been the one to testify about the images on Glenn’s\\ncomputer because he was the one that imaged the hard drive and could verify\\nthe images actually came from his laptop. Therefore, as Glenn sees it, even if\\nMullican properly understood how “hash values” attach to and identify images\\nbased on her experience at the FBI, she could not testify that the hash values\\non the images she found were the same as those on Glenn’s hard drive.\\n It is not clear to us that Glenn’s argument falls within Daubert, as he\\nseems to be faulting Mullican’s alleged lack of personal knowledge simply\\nbecause she did not run the imaging program. Regardless, our review is for\\nabuse of discretion. United States v. Valencia, 600 F.3d 389, 423 (5th Cir. 2010)\\n(“We review the admission or exclusion of expert testimony for an abuse of\\ndiscretion.”); United States v. Watkins, 591 F.3d 780, 786 (5th Cir. 2009) (“[W]e\\nreview a district court’s evidentiary rulings for an abuse of discretion.”). We\\nfind no abuse of discretion here, as Glenn has not adequately explained why\\nMullican’s personal knowledge is insufficient, nor has he directed us to any\\ncases supporting his position.\\n III. CONCLUSION\\n For the foregoing reasons, we AFFIRM the judgment of the district\\ncourt.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3663,"cells":{"id":{"kind":"number","value":4648701,"string":"4,648,701"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee v. Christopher G. WAGUESPACK, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"United States v. Christopher Waguespack"},"decision_date":{"kind":"string","value":"2019-08-15"},"docket_number":{"kind":"string","value":"18-30813"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Haynes, Graves, Duncan\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES E. GRAVES, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-30813 Document: 00515077689 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-30813 August 15, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nCHRISTOPHER G. WAGUESPACK,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Middle District of Louisiana\\n\\n\\nBefore HAYNES, GRAVES, and DUNCAN, Circuit Judges.\\nJAMES E. GRAVES, Circuit Judge:\\n A jury convicted Christopher G. Waguespack of knowingly distributing\\nand possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and\\n2252A(a)(5)(B). The district court sentenced Waguespack to 180 months’\\nimprisonment on each count to run concurrently, followed by 10 years of\\nsupervised release. He now challenges his conviction and sentence on six\\ngrounds. We AFFIRM.\\nI. BACKGROUND\\n A. Investigation\\n In March 2015, Investigator Louis Ratcliff from the Louisiana Attorney\\nGeneral’s Office conducted an undercover investigation of peer-to-peer\\n\\f Case: 18-30813 Document: 00515077689 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nnetworks 1 for child pornography. Ratcliff used Torrential Downpour 2 to\\ndownload over 400 images of child pornography from an IP Address in Baton\\nRouge, Louisiana. On May 5, 2015, he opened a file on his March investigation\\nand authored a report on his investigation results. On June 13, 2015, Ratcliff\\nconducted another investigation and downloaded over 200 images of child\\npornography from an IP Address in Baton Rouge, Louisiana. Ratcliff\\nsubpoenaed Cox Communications to provide the IP Addresses for the\\ndownloads that occurred on March 29–30, 2015, and June 13, 2015. Cox\\nCommunications informed Ratcliff that the IP Addresses belonged to\\nWaguespack’s father, Larry Waguespack, with whom Waguespack lived.\\n On September 24, 2015, officers executed a search warrant at\\nWaguespack’s residence. The officers seized a computer from Waguespack’s\\nbedroom. The computer contained software actively searching for and\\ndownloading files with file names indicative of child pornography. After a\\nforensic examination, the computer was found to have encrypted space and\\n\\n\\n\\n\\n 1 Peer-to-peer file sharing is a means of Internet communication utilizing\\n software that lets users exchange digital files through a network of linked\\n computers. Users access peer-to-peer networks by downloading the peer-to-\\n peer software from the Internet; this software is used exclusively for sharing\\n digital files. Generally, after a user downloads or installs the software, either\\n the user selects a folder to store downloaded files or the installation program\\n designates the shared folder as the default folder into which files are\\n automatically downloaded. Files that are downloaded into the shared folder\\n (or downloaded into a separate folder but later placed into the shared folder)\\n are available to anyone on the peer-to-peer network for downloading. Someone\\n interested in sharing child pornography with other peer-to-peer network users\\n need only leave or place such files in his shared folder, which other users may\\n then access by searching for relevant terms and phrases.\\nUnited States v. Richardson, 713 F.3d 232, 233–34 (5th Cir. 2013).\\n 2 At trial, Agent David Ferris testified that Torrential Downpour is a BitTorrent\\n\\nprogram used by law enforcement to investigate peer-to-peer networks. It targets IP\\naddresses that have recently shared child pornography and creates an activity log of the files\\ninvolved.\\n 2\\n\\f Case: 18-30813 Document: 00515077689 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nanti-forensic software, 3 CCleaner & Eraser, installed. There were file paths\\nwith names indicative of child pornography that led to an “E-drive,” but\\nexaminers were unable to locate an “E-drive” in the unencrypted space of the\\ncomputer. The examiners were also unable to find any user-accessible child\\npornography on the computer. However, the examiners found over 2,800\\nimages and four videos of child pornography in deleted thumbnail cache 4 in a\\ndeleted zip file in an unallocated space of the computer. The file names in the\\nunallocated space were not indicative of child pornography.\\n B. Indictment & Superseding Indictment\\n Relevant here, the grand jury returned an indictment charging\\nWaguespack with knowingly distributing child pornography on May 5, 2015\\nand June 13, 2015, and knowingly possessing child pornography on September\\n24, 2015. In a probable cause affidavit to support the search warrant\\napplication, Ratcliff stated that at least one child pornography offense\\noccurred on May 5, 2015. In fact, May 5, 2015, was the date that Ratcliff\\nauthored his investigation report and not the date that any of the offenses\\noccurred.\\n Subsequently, the Government obtained a Superseding Indictment. The\\nSuperseding Indictment mirrored the original indictment except the date of\\nthe May 5, 2015 offense was changed to between March 29, 2015 and March\\n30, 2015. Waguespack pleaded not guilty to the counts in the Superseding\\nIndictment.\\n\\n\\n\\n\\n 3 The Government’s expert testified that anti-forensic software is used to cover a\\ncomputer user’s tracks.\\n 4 Cache files are files that a web browser automatically creates that may have been\\n\\nseen on the internet that are stored in hidden or inaccessible space.\\n 3\\n\\f Case: 18-30813 Document: 00515077689 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n C. Pre-Trial\\n Waguespack filed several pre-trial motions, including a motion for the\\nproduction of the transcripts of the grand jury proceedings and a motion to\\nsuppress. The district court denied both motions.\\n In the motion for production, Waguespack argued that the date\\ndiscrepancy between March 29–30 and May 5 showed that Ratcliff possibly lied\\nto the Grand Jury. 5 He argued that the Government’s knowing use of false\\ntestimony entitled him to the transcripts. The district court denied the motion\\nand found, inter alia, that Waguespack failed to show a particularized need for\\nthe transcripts. The court found that Waguespack failed to present evidence\\nthat Ratcliff was lying, and not simply making an error. The court further\\nfound that even if Ratcliff lied, the Superseding Indictment with the correct\\ndates remedied any injustice.\\n In the motion to suppress, Waguespack argued that the evidence\\nobtained from the search should have been suppressed because the search\\nwarrant application contained a material misstatement, violating Franks v.\\nDelaware, 438 U.S. 154 (1978), as May 5 was listed instead of March 29–30.\\nHe argued that no judge would have found probable cause without the\\nmisrepresented dates. After a hearing, the district court denied the motion\\nand found that Waguespack failed to prove that Ratcliff made the statements\\n“knowingly and intentionally, or with reckless disregard for the truth.” The\\nCourt also found that even if Ratcliff knowingly lied about the dates and the\\nMay 5, 2015 date was omitted, there was still sufficient information to support\\nprobable cause.\\n\\n\\n\\n\\n 5 March 29–30 is the date that Ratcliff provided to support the subpoena to Cox\\nCommunications. May 5 is the date that Ratcliff used in his affidavit of probable cause to\\nsupport the search warrant and the date that was listed in the original indictment.\\n 4\\n\\f Case: 18-30813 Document: 00515077689 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n D. Trial\\n On October 16, 2017, the jury trial began. Ratcliff was not a witness.\\nThe Government introduced Ratcliff’s download logs through Agent David\\nFerris, another investigator in the Louisiana Attorney General’s Office. Agent\\nFerris was qualified as an expert in the field of online exploitation\\ninvestigations and peer-to-peer file sharing. Waguespack objected to the\\nintroduction of the exhibits related to Ratcliff’s reports. He claimed lack of\\nfoundation and inadmissible hearsay. The objections were overruled.\\n The Government also called Waguespack’s parents to testify.\\nWaguespack’s parents testified as to their knowledge of computers. His\\nmother testified that Waguespack’s father, Larry, “tinker[ed]” with computers,\\nbut that Waguespack did not, and “[Waguespack] wasn’t really into fixing\\nother people’s computers or anything like that . . . .” She also testified that\\nWaguespack is “knowledgeable [about computers] . . . he knows how to use\\nthem and he knows more than [she knows].”\\n Waguespack’s father, Larry, testified that Waguespack was the only\\nperson that used the computer in Waguespack’s room. Larry also testified that\\nhe was knowledgeable of CCleaner as software “to get rid of . . . history folders,\\nthat kind of stuff and e-mail junk” and understood it as “something common .\\n. . to clean [the computer] to keep it from getting viruses and stuff.” He learned\\nabout CCleaner from the internet and from Waguespack. He testified that he\\nand Waguespack discussed CCleaner years ago because Larry was getting\\nviruses on his computer. Larry also testified that he was knowledgeable\\nenough about computers that he could build one from scratch. He had not\\nheard of Eraser, had minimal knowledge of encryption, and had only heard of\\nBitTorrent from the investigation.\\n\\n\\n\\n\\n 5\\n\\f Case: 18-30813 Document: 00515077689 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n After the Government rested, Waguespack moved for judgment of\\nacquittal under Federal Rule of Criminal Procedure 29. The motion was\\ndenied.\\n The parties then presented their closing arguments. Waguespack’s\\ncounsel stated the following in his closing:\\n Ladies and Gentlemen, where is Louis Ratcliff? You heard from\\n seven witnesses at this trial, and all but one testified about Louis\\n Ratcliff. And the guy that didn’t was the Cox Communications guy\\n . . . . Every single piece of evidence in this case, came from Louis\\n Ratcliff. The Government has the burden of proof in this case and\\n every case where they’re charging someone with a criminal offense,\\n and they have to prove their case beyond all reasonable doubt, and\\n yet the government did not call Louis Ratcliff as a witness.\\n ***\\n This entire case, every single piece of evidence that you have to\\n rely on was touched by Louis Ratcliff. Every single thing the\\n government introduced to try to prove their case requires that you\\n trust Louis Ratcliff, not just trust him, ladies and gentlemen, you\\n have to trust him beyond a reasonable doubt because he’s the\\n source of the case, but the government didn’t trust him enough to\\n call him as a witness. They didn’t call Louis Ratcliff to tell us why\\n his images say March 29th and 30th, but every report says May\\n 5th and his sworn affidavits say May 5th. They didn’t call Louis\\n Ratcliff to tell you that if he received those images in March, why\\n did he wait until May 13th to put them in the evidence locker?\\n ***\\n Why [sic] are all of the videos and images that Mr. Ratcliff\\n supposedly downloaded, why are none of them on [Waguespack]’s\\n computer when they show up to do the search? Louis Ratcliff\\n didn’t come and answer any of those questions because there’s no\\n explanation. There is no answer for those questions.\\n\\n\\nThe Government stated the following in its rebuttal:\\n The only person that brought up Mr. Ratcliff here today was\\n [Waguespack’s counsel]. What I would simply say to this point,\\n that if [Waguespack’s counsel] thought that Louis Ratcliff was\\n going to help his side of this case, he has the same subpoena power\\n as the United States government to demand that witnesses be\\n 6\\n\\f Case: 18-30813 Document: 00515077689 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n here. And I’m sure if Mr. Ratcliff was going to be that helpful,\\n [Waguespack’s counsel] would have had him in this courtroom\\n talking to you, not just suggesting that it may have been\\n something helpful.\\n\\n\\n The jury found Waguespack guilty of knowingly distributing and\\npossessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and\\n2252A(a)(5)(B). The jury, responding to a special verdict form, also found that\\nWaguespack possessed child pornography that involved prepubescent minors.\\n E. Sentencing\\n The Presentence Investigation Report (“PSR”) recommended, inter alia,\\na two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1 because\\nthere was anti-forensic software installed on Waguespack’s computer.\\nWaguespack objected to the enhancement and argued that the enhancement\\ndid not apply because he never took any action to delete or conceal evidence\\nafter he learned of the investigation. The district court overruled the objection.\\n The PSR calculated Waguespack’s offense level as 39, inclusive of the\\nenhancement. Based on Waguespack’s offense level and criminal history\\ncategory of I, his Guidelines’ range was 262 to 327 months. The court granted\\nWaguespack a downward variance and sentenced him below the Guidelines to\\n180 months’ imprisonment on each count to run concurrently, followed by 10\\nyears of supervised release.\\n Waguespack now timely appeals his conviction and sentence.\\nII. DISCUSSION\\n A. Waguespack’s Conviction Is Proper.\\n Waguespack appeals his conviction on four grounds. He argues that: (1)\\nthe Government failed to prove beyond a reasonable doubt that Waguespack\\n“knowingly” distributed and possessed child pornography; (2) the Government\\nviolated Waguespack’s Sixth Amendment Confrontation Clause right by\\n\\n 7\\n\\f Case: 18-30813 Document: 00515077689 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nfailing to call Ratcliff as a witness; (3) the Government made improper\\ncomments in its rebuttal; and (4) the Government committed a Brady violation\\nby failing to provide a copy of the grand jury transcripts to Waguespack. We\\nperceive no reversible error.\\n 1. There was sufficient evidence to convict Waguespack\\n of knowingly distributing and possessing child\\n pornography.\\n We review Waguespack’s claim that there was insufficient evidence to\\nsupport the jury’s verdict de novo. United States v. Hoffman, 901 F.3d 523, 541\\n(5th Cir. 2018), as revised (Aug. 28, 2018), cert. denied, No. 18-1049, 2019 WL\\n536773 (U.S. May 20, 2019). “We weigh the evidence ‘in a light most\\ndeferential’ to the jury verdict and give the party that convinced the jury the\\nbenefit of all reasonable inferences.” Id. (quoting United States v. Lucio, 428\\nF.3d 519, 522 (5th Cir. 2005)).\\n “We must affirm the verdict unless no rational juror could have found\\nguilt beyond a reasonable doubt.” Hoffman, 901 F.3d at 541 (quotation\\nomitted). However, “a verdict may not rest on mere suspicion, speculation, or\\nconjecture, or on an overly attenuated piling of inference on inference.” United\\nStates v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011) (quotation omitted). And,\\nthis court will not “credit inferences within the realm of possibility when those\\ninferences are unreasonable.” Id. (quotation omitted). Accordingly, we will\\noverturn a guilty verdict “where the government has done nothing more than\\npile inference upon inference to prove guilt.” Id. (quotation omitted).\\n a. “Knowing” Distribution\\n Waguespack concedes that “[p]lacing content in a shared folder on a\\npeer-to-peer program amounts to distribution.” However, he argues that there\\nwas insufficient evidence to prove that he had the requisite knowledge of the\\ndistribution because, inter alia,: (1) there was no evidence that the default\\n 8\\n\\f Case: 18-30813 Document: 00515077689 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nsettings were modified to show he had knowledge of the automatic file-sharing\\nof the software; and (2) there was no evidence that he was on his computer or\\nat home on March 29–30 to show that he had knowledge that the files were\\nbeing transferred. He further argues that the Government even failed to\\nprovide evidence that any distribution or file sharing occurred on the relevant\\ndates.\\n Under 18 U.S.C. § 2252A(a)(2), it is unlawful for a person to knowingly\\ndistribute child pornography in or affecting interstate or foreign commerce by\\nany means. Downloading child pornography “from a peer-to-peer computer\\nnetwork and storing [it] in a shared folder accessible to other users on the\\nnetwork” is prohibited under the statute, but “the Government must prove\\nbeyond a reasonable doubt that the defendant engaged in such distribution\\n‘knowingly.’” United States v. Romero-Medrano, 899 F.3d 356, 360 (5th Cir.\\n2018) (citing United States v. Richardson, 713 F.3d 232, 234, 236 (5th Cir.\\n2013)).\\n Weighing the evidence in the light most deferential to the jury verdict\\nand giving the Government the benefit of all reasonable inferences, there was\\nsufficient evidence for a rational jury to find Waguespack guilty beyond a\\nreasonable doubt of knowingly distributing child pornography. At trial, the\\nGovernment presented evidence that:\\n • A peer-to-peer file sharing software was installed on the computer\\n in Waguespack’s room.\\n • Waguespack was the sole user of the computer in his room.\\n • The peer-to-peer file sharing software notified users when files\\n were being uploaded or downloaded.\\n • The software’s default settings for the shared folder on the seized\\n computer were changed.\\n • Waguespack had advanced technological proficiency.\\n 9\\n\\f Case: 18-30813 Document: 00515077689 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n • Agent Ratcliff downloaded child pornography using the peer-to-\\n peer file sharing software from an IP Address in Waguespack’s\\n home.\\n • A user on the computer previously searched for, viewed,\\n downloaded, and transferred child pornography using the file\\n sharing software, including transferring child pornography after\\n child pornography was distributed to Agent Ratcliff in March 2015.\\n • The computer seized from Waguespack’s room contained over 2800\\n images of child pornography.\\n Taken together, the evidence is probative of Waguespack’s knowledge\\nand is sufficient to demonstrate that Waguespack “knowingly” distributed\\nchild pornography. The evidence was sufficient to support a jury finding of\\nguilt beyond a reasonable doubt.\\n Waguespack relies on extra-circuit precedent, United States v. Carroll,\\n886 F.3d 1347 (11th Cir. 2018) to support his insufficiency argument.\\nHowever, Carroll is distinguishable.\\n In Carroll, the Eleventh Circuit reversed a distribution conviction after\\nfinding that the Government failed to prove that the defendant was aware that\\nthe contents of his shared folder automatically distributed to the peer-to-peer\\nnetwork. 886 F.3d at 1353–54. The defendant argued that the Government\\n“failed to present any evidence that he knew he was sharing child pornography\\nfiles when they were automatically placed in a shared folder, and that he [could\\nnot] be held liable for knowing distribution without some showing that he\\nconsciously allowed others to access those files.” Id. at 1353. The court agreed,\\nfinding that there was nothing in the record to indicate that the defendant was\\naware that the contents of his shared folder automatically distributed to the\\npeer-to-peer network. Id. According to the court, “the government failed to\\nput on any evidence that [the peer-to-peer network], by design, would have\\n 10\\n\\f Case: 18-30813 Document: 00515077689 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nrequired [the defendant] to authorize file sharing or in any way recognize that\\nhis downloaded files were being shared.” Id. at 1354. The court noted that the\\ndesign of each network may bear on the issue of knowledge in different ways.\\nId.\\n Most detrimental to Waguespack’s argument that he lacked the requisite\\nknowledge is the evidence that, by design, the software notified the user that\\nfiles were being shared with others and that he altered the default settings of\\nthe software. Both are indicia of knowledge. Waguespack fails to meet his\\nburden that “no rational juror could have found guilt beyond a reasonable\\ndoubt.” Hoffman, 901 F.3d at 541 (quotation omitted).\\n b. “Knowing” Possession\\n Waguespack argues that the Government failed to prove beyond a\\nreasonable doubt that he “knowingly” possessed child pornography on\\nSeptember 24, 2015, because the child pornography found on his computer was\\neither cached files or deleted cached files. In addition, the child pornography\\nfiles on his computer were located in an inaccessible portion of his hard drive.\\n Under 18 U.S.C. § 2252A(a)(5)(B), it is unlawful for a person to\\nknowingly possess child pornography in or affecting interstate or foreign\\ncommerce by any means. To obtain a conviction under the statute, the\\nGovernment must prove, inter alia, that a defendant “knowingly” possessed\\nchild pornography. United States v. Terrell, 700 F.3d 755, 764 (5th Cir. 2012)\\n(per curiam). The possession may be actual or constructive. United States v.\\nSmith, 739 F.3d 843, 846 (5th Cir. 2014).\\n “When illegal files are recovered from shared computers, courts permit\\nan inference of constructive possession where the files’ nature and location are\\nsuch that [the] computer’s owner must be aware of them.” United States v.\\nSmith, 739 F.3d 843, 847 (5th Cir. 2014). “Such an inference, however, must\\n\\n\\n 11\\n\\f Case: 18-30813 Document: 00515077689 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nbe supported by evidence that ‘the defendant had knowledge of and access to’\\nthe files.” Id. (quoting Moreland, 665 F.3d at 150).\\n Weighing the evidence in the light most deferential to the jury verdict\\nand giving the Government the benefit of all reasonable inferences, there was\\nsufficient evidence for a rational jury to find beyond a reasonable doubt that\\nWaguespack knowingly possessed child pornography. The Government\\npresented evidence that there were over 2800 child pornography images on the\\ncomputer seized from Waguespack’s room, the person using the seized\\ncomputer was well-educated in computer usage, Waguespack was the sole user\\nof the computer, anti-forensic and encryption software were discovered on the\\ncomputer, child pornography was transferred to Agent Ratcliff from an IP\\nAddress at Waguespack’s home, and path files with names indicative of child\\npornography were stored on the computer. Together, this evidence is probative\\nof whether Waguespack had the requisite knowledge and ability to access the\\nfiles and exercise dominion or control over them. Cf. Moreland, 665 F.3d at\\n148. Accordingly, Waguespack fails to meet his burden that “no rational juror\\ncould have found guilt beyond a reasonable doubt.” Hoffman, 901 F.3d at 541\\n(quotation omitted).\\n 2. The district court did not clearly or obviously violate\\n Waguespack’s Confrontation Clause rights.\\n Waguespack argues that his rights under the Confrontation Clause were\\nviolated when the district court admitted child pornography images\\ndownloaded by Ratcliff and Ratcliff’s accompanying Torrential Downpour logs.\\nAccording to Waguespack, the Government’s failure to call Ratcliff in its case-\\nin-chief violated his right to confront the witness against him. The\\nGovernment argues that the images and logs are machine-generated and are\\nnot statements of a person.\\n\\n\\n 12\\n\\f Case: 18-30813 Document: 00515077689 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n The Confrontation Clause of the Sixth Amendment provides that “[i]n all\\ncriminal prosecutions, the accused shall enjoy the right . . . to be confronted\\nwith the witnesses against him.” U.S. Const. amend. VI. “The Confrontation\\nClause bars the admission of ‘testimonial statements of a witness who did not\\nappear at trial unless he was unavailable to testify, and the defendant had [ ]\\na prior opportunity for cross-examination.’” United States v. Kizzee, 877 F.3d\\n650, 656 (5th Cir. 2017) (quoting Crawford v. Washington, 541 U.S. 36, 53–54,\\n(2004)). “[A] statement is testimonial if its primary purpose . . . is to establish\\nor prove past events potentially relevant to later criminal prosecution.” Id.\\n(quotation omitted).\\n Generally, this court reviews alleged Confrontation Clause violations de\\nnovo. United States v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019), as revised\\n(Mar. 4, 2019). However, where, as here, the issue was not raised at trial, this\\ncourt reviews the issue for plain error. 6 United States v. Martinez-Rios, 595\\nF.3d 581, 584 (5th Cir. 2010). “To prevail, [Waguespack] must demonstrate\\nthat[:] (1) the district court erred, (2) the error was plain, (3) the plain error\\naffected his substantial rights, and (4) allowing the plain error to stand would\\n‘seriously affect the fairness, integrity, or public reputation of judicial\\nproceedings.’” United States v. Bree, 927 F.3d 856, 859 (5th Cir. 2019) (quoting\\nPuckett v. United States, 556 U.S. 129, 135 (2009)).\\n Waguespack relies on Bullcoming v. New Mexico, 564 U.S. 647 (2011), to\\nsupport his argument that his rights were violated. In Bullcoming, the\\n\\n\\n\\n 6 Waguespack conceded in his reply brief that he failed to raise a Confrontation Clause\\nobjection at trial. However, at oral argument, Waguespack’s counsel “walk[ed] back” the\\nconcession and argued that the court should review the issue de novo because trial counsel\\npreserved the issue. Oral Argument at 1:20–2:20. Counsel’s citation to the record does not\\nsupport finding that trial counsel preserved the issue or that the “objection was specific\\nenough to allow the trial court to take testimony, receive argument, or otherwise explore the\\nissue raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997). Accordingly, we\\nexercise plain error review.\\n 13\\n\\f Case: 18-30813 Document: 00515077689 Page: 14 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n“question presented [was] whether the Confrontation Clause permits the\\nprosecution to introduce a forensic laboratory report containing a testimonial\\ncertification—made for the purpose of proving a particular fact—through the\\nin-court testimony of a scientist who did not sign the certification or perform\\nor observe the test reported in the certification.” Id. at 652. The district court\\nadmitted a forensic report into evidence certifying a defendant’s blood alcohol\\nlevel where the defendant had been charged with driving under the influence.\\nThe Government did not call the analyst who certified the report. Instead, the\\nGovernment called another analyst who was familiar with the laboratory’s\\ntesting procedures. The Court held that “surrogate testimony of that order\\ndoes not meet the constitutional requirement. The accused’s right is to be\\nconfronted with the analyst who made the certification, unless that analyst is\\nunavailable at trial, and the accused had an opportunity, pretrial, to cross-\\nexamine that particular scientist.” Id. However, as Justice Sotomayor noted\\nin her concurrence:\\n [Bullcoming] is not a case in which the State introduced only\\n machine-generated results, such as a printout from a gas\\n chromatograph. The State [] introduced [the original analyst’s]\\n statements, which included his transcription of a blood alcohol\\n concentration, apparently copied from a gas chromatograph\\n printout, along with other statements about the procedures used\\n in handling the blood sample . . . Thus, [the Court did] not decide\\n whether . . . a State could introduce (assuming an adequate chain\\n of custody foundation) raw data generated by a machine in\\n conjunction with the testimony of an expert witness.\\n\\n\\n564 U.S. at 673–74 (Sotomayor, J., concurring).\\n In United States v. Ballesteros, this court rejected the defendant’s\\nargument that the district court clearly or obviously violated his right under\\nthe Confrontation Clause by admitting into evidence a report detailing his\\nmovements from GPS tracking. 751 F. App’x 579, 580 (5th Cir. 2019) (mem.),\\n\\n 14\\n\\f Case: 18-30813 Document: 00515077689 Page: 15 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\ncert. denied, (U.S. Jun. 10, 2019) (No. 18-9205). We concluded that because the\\ndefendant did not cite, and we had not found, “any decision by this court\\nholding that the output of a computer program, such as a GPS report, amounts\\nto a hearsay ‘statement’ under the Sixth Amendment,” the defendant failed to\\nmeet his burden. Id.\\n Similarly, here, Waguespack fails to meet his burden of establishing that\\nthe district court plainly erred in admitting the downloaded materials.\\nWaguespack has not cited, and we have not found any case to support\\nWaguespack’s position that the machine-generated materials are statements\\nof a witness or trigger the Confrontation Clause. Accordingly, Waguespack’s\\nargument fails.\\n 3. The Government’s rebuttal remarks were not\\n improper.\\n Waguespack argues that the Government made improper comments\\nduring its rebuttal by referencing Ratcliff’s absence. Because Waguespack\\ntimely objected to this issue, we review for abuse of discretion. United States\\nv. Stephens, 571 F.3d 401, 407 (5th Cir. 2009).\\n “Improper prosecutorial comments constitute reversible error only\\nwhere the defendant’s right to a fair trial is substantially affected.” Id. at 407–\\n408 (quotation omitted). “This court applies a two-step inquiry in analyzing\\nclaims of prosecutorial misconduct:” (1) whether the Government made\\nimproper remarks; and (2) whether the improper remarks prejudiced the\\ndefendant. Id. at 408.\\n “A prosecutor is prohibited from commenting directly or indirectly on a\\ndefendant’s failure to testify or produce evidence.” Romero-Medrano, 899 F.3d\\nat 361 (quotation omitted). “A prosecutor’s . . . remarks constitute a comment\\non a defendant’s silence in violation of the Fifth Amendment if the manifest\\nintent was to comment on a defendant’s silence, or if the character of the\\n 15\\n\\f Case: 18-30813 Document: 00515077689 Page: 16 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nremark was such that the jury would naturally and necessarily construe the\\nremark to be a comment on a defendant’s silence.” Id. at 392 (quotation\\nomitted). “[T]he comments complained of must be viewed within the context\\nof the trial in which they are made.” Id. (quotation omitted).\\n In Stephens, we found that the Government’s comment that both sides\\ncould have subpoenaed a witness was a response to the defendant’s closing\\nargument regarding a witness’s availability and was not an attempt to shift\\nthe burden of proof. 7 571 F.3d at 408. We also found that even if the\\nGovernment’s comment was improper, it was not sufficiently prejudicial to\\nwarrant reversal because the district court provided a curative instruction and\\nthere was ample evidence at trial. Id.\\n Here, viewed in context, the Government’s remarks were not improper.\\nThe jury would have understood the comments to be a response to the\\ndefendant’s closing argument and not an attempt to shift the burden of proof.\\nAnd, even if the remarks were improper, the jury instructions relating to the\\n\\n\\n\\n 7 The exchange during the closing argument in Stephens’ trial was as follows:\\n\\n Defense counsel: The guns. I suggested to you yesterday that they could have\\n been bought on-line. And who could they have been bought by? Daniel Lee\\n Garrett. We don’t know much about him. We know very little about him. The\\n Government could have brought him into court. The Government could have\\n subpoenaed him. They could have found him. They could have brought you\\n this missing witness. We know very little about him.\\n\\n Government: I’m going to object, Your Honor.\\n\\n The Court: What’s your objection?\\n\\n Government: Both sides could have done that with subpoenas.\\n\\n Defense counsel: Of course both sides could have done it. But the point is it’s\\n the Government’s burden to prove its case, and Mr. Costa knows that.\\n\\n The Court: Okay. Go on. Continue.\\nId. at 407 n.8.\\n 16\\n\\f Case: 18-30813 Document: 00515077689 Page: 17 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nGovernment’s burden were curative. See Stephens, 571 F.3d at 408. Further,\\nWaguespack fails to demonstrate that the remarks were sufficiently\\nprejudicial to warrant reversal because there was ample evidence at trial to\\nsupport the jury’s verdict.\\n 4. The Government did not violate Waguespack’s Brady\\n rights by not disclosing the grand jury transcripts.\\n Waguespack argues that the district court erred in denying his motion\\nto compel the production of the grand jury transcripts. Specifically,\\nWaguespack argues that the date change from the first indictment to the\\nsuperseding indictment triggered the Government’s Brady obligations, and he\\nwas entitled to receive a copy of the transcripts. According to Waguespack,\\n“[the] witness statements used in obtaining an indictment for the wrong date\\nshould have been available to [him] to determine what other defects may have\\nexisted in the Government’s case.”\\n “To establish a Brady violation, a defendant must show: (1) the evidence\\nat issue was favorable to the accused, either because it was exculpatory or\\nimpeaching; (2) the evidence was suppressed by the prosecution; and (3) the\\nevidence was material.” United States v. Cessa, 872 F.3d 267, 271 (5th Cir.\\n2017) (quotation omitted). “Evidence is material if there is a reasonable\\nprobability that, had the evidence been disclosed to the defense, the result of\\nthe proceeding would have been different.” Id. (quotation omitted). “A\\nreasonable probability of a different result is one in which the suppressed\\nevidence undermines confidence in the outcome of the trial.” Id. (quotation\\nomitted).\\n Waguespack has not shown that the grand jury transcripts were\\nmaterial. He provides no support to demonstrate “a reasonable probability\\nthat, had the [transcripts] been disclosed to the defense, the result of the\\nproceeding would have been different,” and that the nondisclosure of the grand\\n 17\\n\\f Case: 18-30813 Document: 00515077689 Page: 18 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\njury transcripts undermined confidence in the outcome of the trial. Cessa, 872\\nF.3d at 271. He simply asks for them to determine “what other defects may\\nhave existed in the Government’s case.” Accordingly, Waguespack’s challenge\\nas a Brady violation fails.\\n B. Waguespack’s Sentence Is Reasonable.\\n Waguespack appeals his sentence on two grounds. He argues that: (1)\\nthe district court improperly applied the obstruction of justice sentencing\\nenhancement; and (2) his sentence is substantively unreasonable. We find no\\nreversible error.\\n 1. Waguespack’s sentence is procedurally reasonable.\\n Waguespack argues that his sentence is procedurally unreasonable\\nbecause the district court erroneously applied an obstruction of justice\\nsentencing enhancement.\\n A district court may apply a two-level sentencing enhancement under\\nU.S.S.G. § 3C1.1 if:\\n (1) the defendant willfully obstructed or impeded, or attempted to\\n obstruct or impede, the administration of justice with respect to\\n the investigation, prosecution, or sentencing of the instant offense\\n of conviction, and (2) the obstructive conduct related to (A) the\\n defendant’s offense of conviction and any relevant conduct; or (B)\\n a closely related offense . . . .\\n\\n\\nU.S.S.G. § 3C1.1. “Obstructive conduct that occurred prior to the start of the\\ninvestigation of the instant offense of conviction may be covered by this\\nguideline if the conduct was purposefully calculated, and likely, to thwart the\\ninvestigation or prosecution of the offense of conviction.” Id. at Cmt. 1.\\n “A finding of obstruction of justice is a factual finding that is reviewed\\nfor clear error.” United States v. Zamora-Salazar, 860 F.3d 826, 836 (5th Cir.),\\ncert. denied, 138 S. Ct. 413 (2017). “A factual finding is not clearly erroneous\\nif it is plausible in light of the record as a whole.” Id. (quotation omitted).\\n 18\\n\\f Case: 18-30813 Document: 00515077689 Page: 19 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n The district court applied the obstruction of justice sentencing\\nenhancement after finding that Waguespack’s conduct was “purposefully\\ncalculated and thwarted the investigation or prosecution of the offense of\\nconviction.” The court found that, inter alia, the seized computer was actively\\nsearching for and downloading files with file names indicative of child\\npornography when law enforcement executed the search warrant, the\\ncomputer’s deleted file space contained file paths and file names indicative of\\nchild pornography, anti-forensic and encryption software were installed on the\\ncomputer, and the anti-forensic software had been programmed with a task\\nlist of file paths with names indicative of child pornography.\\n Waguespack argues that the district court erred in applying the\\nenhancement because “there was no evidence that [he] engaged in any conduct\\nduring the Government’s investigation of his activities or even that he was\\naware that an investigation was about to commence.” However, based on the\\nplain language of the statutory commentary, the enhancement may be applied\\nfor conduct that occurred prior to an investigation if the conduct was\\n“purposefully calculated, and likely, to thwart the investigation or prosecution\\nof the offense of conviction,” see § 3C1.1, Cmt. 1, which the district court\\nspecifically found in Waguespack’s case.\\n In light of the record as a whole and the plain language of the statutory\\ncommentary, Waguespack fails to demonstrate that the district court clearly\\nerred in applying the enhancement.\\n 2. Waguespack’s sentence is substantively reasonable.\\n Waguespack argues that, despite his sentence falling below the\\nGuidelines, his sentence is substantively unreasonable because the district\\ncourt failed to account for 18 U.S.C. § 3553(a)(6)).\\n We review the substantive reasonableness of a sentence under an abuse-\\nof-discretion standard. United States v. Halverson, 897 F.3d 645, 651 (5th Cir.\\n 19\\n\\f Case: 18-30813 Document: 00515077689 Page: 20 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n2018). However, “[a]ppellate review of the substantive reasonableness of a\\nsentence is ‘highly deferential,’” and a within-Guidelines sentence is entitled\\nto the presumption of reasonableness. Hoffman, 901 F.3d at 554–55. The\\npresumption is rebutted “only if the appellant demonstrates that the sentence\\ndoes not account for a [18 U.S.C. § 3553(a)] factor that should receive\\nsignificant weight, gives significant weight to an irrelevant or improper factor,\\nor represents a clear error of judgment in balancing the sentencing factors.”\\nUnited States v. Martinez, 921 F.3d 452, 483 (5th Cir. 2019) (quotation\\nomitted).\\n Section 3553(a)(6) requires courts to consider “the need to avoid\\nunwarranted sentence disparities among defendants with similar records who\\nhave been found guilty of similar conduct.” “[W]here a sentence is within the\\nguidelines range, the unwarranted-disparity factor is not afforded significant\\nweight.” United States v. Martinez, 739 F. App’x 245, 247 (5th Cir. 2018)\\n(mem.) (citing United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011)).\\n Because Waguespack’s sentence was below the Guidelines, his sentence\\nis entitled to the presumption of reasonableness. His attempt to rebut the\\npresumption by arguing that the district court failed to account for § 3553(a)(6)\\nis unavailing because the unwarranted-disparity factor is not afforded\\nsignificant weight in his case. Even if it was, he fails to offer evidence that his\\nsentence represents an unwarranted disparity with similarly situated\\ndefendants. See Martinez, 739 F. App’x at 246–47. Waguespack includes\\nstatistics of sentences for child pornography offenses, but “[n]ational averages\\nof sentences that provide no details underlying the sentences are unreliable to\\ndetermine unwarranted disparity because they do not reflect the\\nenhancements or adjustments for the aggravating or mitigating factors that\\ndistinguish individual cases.” United States v. Willingham, 497 F.3d 541, 544\\n(5th Cir. 2007). The statistics that Waguespack provides “disregard individual\\n 20\\n\\f Case: 18-30813 Document: 00515077689 Page: 21 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\ncircumstances and only reflect a broad grouping of sentences imposed on a\\nbroad grouping of criminal defendants; consequently, they are basically\\nmeaningless in considering whether a disparity with respect to a particular\\ndefendant is warranted or unwarranted.” Id. at 544–45.\\n The district court stated that it considered all the factors in fashioning\\nWaguespack’s sentence. Of note, the district court seemed to give significant\\nweight to the victim impact statements and Waguespack’s offense being a\\nserious offense which affected many people.\\n The district court did not abuse its discretion in sentencing Waguespack.\\nIII. CONCLUSION\\n For the foregoing reasons, the district court’s judgment is AFFIRMED.\\n\\n\\n\\n\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4425954/\", \"author_raw\": \"JAMES E. GRAVES, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HAYNES"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648701/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Christopher G. WAGUESPACK, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-30813 Document: 00515077689 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-30813 August 15, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nCHRISTOPHER G. WAGUESPACK,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Middle District of Louisiana\n\n\nBefore HAYNES, GRAVES, and DUNCAN, Circuit Judges.\nJAMES E. GRAVES, Circuit Judge:\n A jury convicted Christopher G. Waguespack of knowingly distributing\nand possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and\n2252A(a)(5)(B). The district court sentenced Waguespack to 180 months’\nimprisonment on each count to run concurrently, followed by 10 years of\nsupervised release. He now challenges his conviction and sentence on six\ngrounds. We AFFIRM.\nI. BACKGROUND\n A. Investigation\n In March 2015, Investigator Louis Ratcliff from the Louisiana Attorney\nGeneral’s Office conducted an undercover investigation of peer-to-peer\n\f Case: 18-30813 Document: 00515077689 Page: 2 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\nnetworks 1 for child pornography. Ratcliff used Torrential Downpour 2 to\ndownload over 400 images of child pornography from an IP Address in Baton\nRouge, Louisiana. On May 5, 2015, he opened a file on his March investigation\nand authored a report on his investigation results. On June 13, 2015, Ratcliff\nconducted another investigation and downloaded over 200 images of child\npornography from an IP Address in Baton Rouge, Louisiana. Ratcliff\nsubpoenaed Cox Communications to provide the IP Addresses for the\ndownloads that occurred on March 29–30, 2015, and June 13, 2015. Cox\nCommunications informed Ratcliff that the IP Addresses belonged to\nWaguespack’s father, Larry Waguespack, with whom Waguespack lived.\n On September 24, 2015, officers executed a search warrant at\nWaguespack’s residence. The officers seized a computer from Waguespack’s\nbedroom. The computer contained software actively searching for and\ndownloading files with file names indicative of child pornography. After a\nforensic examination, the computer was found to have encrypted space and\n\n\n\n\n 1 Peer-to-peer file sharing is a means of Internet communication utilizing\n software that lets users exchange digital files through a network of linked\n computers. Users access peer-to-peer networks by downloading the peer-to-\n peer software from the Internet; this software is used exclusively for sharing\n digital files. Generally, after a user downloads or installs the software, either\n the user selects a folder to store downloaded files or the installation program\n designates the shared folder as the default folder into which files are\n automatically downloaded. Files that are downloaded into the shared folder\n (or downloaded into a separate folder but later placed into the shared folder)\n are available to anyone on the peer-to-peer network for downloading. Someone\n interested in sharing child pornography with other peer-to-peer network users\n need only leave or place such files in his shared folder, which other users may\n then access by searching for relevant terms and phrases.\nUnited States v. Richardson, 713 F.3d 232, 233–34 (5th Cir. 2013).\n 2 At trial, Agent David Ferris testified that Torrential Downpour is a BitTorrent\n\nprogram used by law enforcement to investigate peer-to-peer networks. It targets IP\naddresses that have recently shared child pornography and creates an activity log of the files\ninvolved.\n 2\n\f Case: 18-30813 Document: 00515077689 Page: 3 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\nanti-forensic software, 3 CCleaner & Eraser, installed. There were file paths\nwith names indicative of child pornography that led to an “E-drive,” but\nexaminers were unable to locate an “E-drive” in the unencrypted space of the\ncomputer. The examiners were also unable to find any user-accessible child\npornography on the computer. However, the examiners found over 2,800\nimages and four videos of child pornography in deleted thumbnail cache 4 in a\ndeleted zip file in an unallocated space of the computer. The file names in the\nunallocated space were not indicative of child pornography.\n B. Indictment & Superseding Indictment\n Relevant here, the grand jury returned an indictment charging\nWaguespack with knowingly distributing child pornography on May 5, 2015\nand June 13, 2015, and knowingly possessing child pornography on September\n24, 2015. In a probable cause affidavit to support the search warrant\napplication, Ratcliff stated that at least one child pornography offense\noccurred on May 5, 2015. In fact, May 5, 2015, was the date that Ratcliff\nauthored his investigation report and not the date that any of the offenses\noccurred.\n Subsequently, the Government obtained a Superseding Indictment. The\nSuperseding Indictment mirrored the original indictment except the date of\nthe May 5, 2015 offense was changed to between March 29, 2015 and March\n30, 2015. Waguespack pleaded not guilty to the counts in the Superseding\nIndictment.\n\n\n\n\n 3 The Government’s expert testified that anti-forensic software is used to cover a\ncomputer user’s tracks.\n 4 Cache files are files that a web browser automatically creates that may have been\n\nseen on the internet that are stored in hidden or inaccessible space.\n 3\n\f Case: 18-30813 Document: 00515077689 Page: 4 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\n C. Pre-Trial\n Waguespack filed several pre-trial motions, including a motion for the\nproduction of the transcripts of the grand jury proceedings and a motion to\nsuppress. The district court denied both motions.\n In the motion for production, Waguespack argued that the date\ndiscrepancy between March 29–30 and May 5 showed that Ratcliff possibly lied\nto the Grand Jury. 5 He argued that the Government’s knowing use of false\ntestimony entitled him to the transcripts. The district court denied the motion\nand found, inter alia, that Waguespack failed to show a particularized need for\nthe transcripts. The court found that Waguespack failed to present evidence\nthat Ratcliff was lying, and not simply making an error. The court further\nfound that even if Ratcliff lied, the Superseding Indictment with the correct\ndates remedied any injustice.\n In the motion to suppress, Waguespack argued that the evidence\nobtained from the search should have been suppressed because the search\nwarrant application contained a material misstatement, violating Franks v.\nDelaware, 438 U.S. 154 (1978), as May 5 was listed instead of March 29–30.\nHe argued that no judge would have found probable cause without the\nmisrepresented dates. After a hearing, the district court denied the motion\nand found that Waguespack failed to prove that Ratcliff made the statements\n“knowingly and intentionally, or with reckless disregard for the truth.” The\nCourt also found that even if Ratcliff knowingly lied about the dates and the\nMay 5, 2015 date was omitted, there was still sufficient information to support\nprobable cause.\n\n\n\n\n 5 March 29–30 is the date that Ratcliff provided to support the subpoena to Cox\nCommunications. May 5 is the date that Ratcliff used in his affidavit of probable cause to\nsupport the search warrant and the date that was listed in the original indictment.\n 4\n\f Case: 18-30813 Document: 00515077689 Page: 5 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\n D. Trial\n On October 16, 2017, the jury trial began. Ratcliff was not a witness.\nThe Government introduced Ratcliff’s download logs through Agent David\nFerris, another investigator in the Louisiana Attorney General’s Office. Agent\nFerris was qualified as an expert in the field of online exploitation\ninvestigations and peer-to-peer file sharing. Waguespack objected to the\nintroduction of the exhibits related to Ratcliff’s reports. He claimed lack of\nfoundation and inadmissible hearsay. The objections were overruled.\n The Government also called Waguespack’s parents to testify.\nWaguespack’s parents testified as to their knowledge of computers. His\nmother testified that Waguespack’s father, Larry, “tinker[ed]” with computers,\nbut that Waguespack did not, and “[Waguespack] wasn’t really into fixing\nother people’s computers or anything like that . . . .” She also testified that\nWaguespack is “knowledgeable [about computers] . . . he knows how to use\nthem and he knows more than [she knows].”\n Waguespack’s father, Larry, testified that Waguespack was the only\nperson that used the computer in Waguespack’s room. Larry also testified that\nhe was knowledgeable of CCleaner as software “to get rid of . . . history folders,\nthat kind of stuff and e-mail junk” and understood it as “something common .\n. . to clean [the computer] to keep it from getting viruses and stuff.” He learned\nabout CCleaner from the internet and from Waguespack. He testified that he\nand Waguespack discussed CCleaner years ago because Larry was getting\nviruses on his computer. Larry also testified that he was knowledgeable\nenough about computers that he could build one from scratch. He had not\nheard of Eraser, had minimal knowledge of encryption, and had only heard of\nBitTorrent from the investigation.\n\n\n\n\n 5\n\f Case: 18-30813 Document: 00515077689 Page: 6 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\n After the Government rested, Waguespack moved for judgment of\nacquittal under Federal Rule of Criminal Procedure 29. The motion was\ndenied.\n The parties then presented their closing arguments. Waguespack’s\ncounsel stated the following in his closing:\n Ladies and Gentlemen, where is Louis Ratcliff? You heard from\n seven witnesses at this trial, and all but one testified about Louis\n Ratcliff. And the guy that didn’t was the Cox Communications guy\n . . . . Every single piece of evidence in this case, came from Louis\n Ratcliff. The Government has the burden of proof in this case and\n every case where they’re charging someone with a criminal offense,\n and they have to prove their case beyond all reasonable doubt, and\n yet the government did not call Louis Ratcliff as a witness.\n ***\n This entire case, every single piece of evidence that you have to\n rely on was touched by Louis Ratcliff. Every single thing the\n government introduced to try to prove their case requires that you\n trust Louis Ratcliff, not just trust him, ladies and gentlemen, you\n have to trust him beyond a reasonable doubt because he’s the\n source of the case, but the government didn’t trust him enough to\n call him as a witness. They didn’t call Louis Ratcliff to tell us why\n his images say March 29th and 30th, but every report says May\n 5th and his sworn affidavits say May 5th. They didn’t call Louis\n Ratcliff to tell you that if he received those images in March, why\n did he wait until May 13th to put them in the evidence locker?\n ***\n Why [sic] are all of the videos and images that Mr. Ratcliff\n supposedly downloaded, why are none of them on [Waguespack]’s\n computer when they show up to do the search? Louis Ratcliff\n didn’t come and answer any of those questions because there’s no\n explanation. There is no answer for those questions.\n\n\nThe Government stated the following in its rebuttal:\n The only person that brought up Mr. Ratcliff here today was\n [Waguespack’s counsel]. What I would simply say to this point,\n that if [Waguespack’s counsel] thought that Louis Ratcliff was\n going to help his side of this case, he has the same subpoena power\n as the United States government to demand that witnesses be\n 6\n\f Case: 18-30813 Document: 00515077689 Page: 7 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\n here. And I’m sure if Mr. Ratcliff was going to be that helpful,\n [Waguespack’s counsel] would have had him in this courtroom\n talking to you, not just suggesting that it may have been\n something helpful.\n\n\n The jury found Waguespack guilty of knowingly distributing and\npossessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and\n2252A(a)(5)(B). The jury, responding to a special verdict form, also found that\nWaguespack possessed child pornography that involved prepubescent minors.\n E. Sentencing\n The Presentence Investigation Report (“PSR”) recommended, inter alia,\na two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1 because\nthere was anti-forensic software installed on Waguespack’s computer.\nWaguespack objected to the enhancement and argued that the enhancement\ndid not apply because he never took any action to delete or conceal evidence\nafter he learned of the investigation. The district court overruled the objection.\n The PSR calculated Waguespack’s offense level as 39, inclusive of the\nenhancement. Based on Waguespack’s offense level and criminal history\ncategory of I, his Guidelines’ range was 262 to 327 months. The court granted\nWaguespack a downward variance and sentenced him below the Guidelines to\n180 months’ imprisonment on each count to run concurrently, followed by 10\nyears of supervised release.\n Waguespack now timely appeals his conviction and sentence.\nII. DISCUSSION\n A. Waguespack’s Conviction Is Proper.\n Waguespack appeals his conviction on four grounds. He argues that: (1)\nthe Government failed to prove beyond a reasonable doubt that Waguespack\n“knowingly” distributed and possessed child pornography; (2) the Government\nviolated Waguespack’s Sixth Amendment Confrontation Clause right by\n\n 7\n\f Case: 18-30813 Document: 00515077689 Page: 8 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\nfailing to call Ratcliff as a witness; (3) the Government made improper\ncomments in its rebuttal; and (4) the Government committed a Brady violation\nby failing to provide a copy of the grand jury transcripts to Waguespack. We\nperceive no reversible error.\n 1. There was sufficient evidence to convict Waguespack\n of knowingly distributing and possessing child\n pornography.\n We review Waguespack’s claim that there was insufficient evidence to\nsupport the jury’s verdict de novo. United States v. Hoffman, 901 F.3d 523, 541\n(5th Cir. 2018), as revised (Aug. 28, 2018), cert. denied, No. 18-1049, 2019 WL\n536773 (U.S. May 20, 2019). “We weigh the evidence ‘in a light most\ndeferential’ to the jury verdict and give the party that convinced the jury the\nbenefit of all reasonable inferences.” Id. (quoting United States v. Lucio, 428\nF.3d 519, 522 (5th Cir. 2005)).\n “We must affirm the verdict unless no rational juror could have found\nguilt beyond a reasonable doubt.” Hoffman, 901 F.3d at 541 (quotation\nomitted). However, “a verdict may not rest on mere suspicion, speculation, or\nconjecture, or on an overly attenuated piling of inference on inference.” United\nStates v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011) (quotation omitted). And,\nthis court will not “credit inferences within the realm of possibility when those\ninferences are unreasonable.” Id. (quotation omitted). Accordingly, we will\noverturn a guilty verdict “where the government has done nothing more than\npile inference upon inference to prove guilt.” Id. (quotation omitted).\n a. “Knowing” Distribution\n Waguespack concedes that “[p]lacing content in a shared folder on a\npeer-to-peer program amounts to distribution.” However, he argues that there\nwas insufficient evidence to prove that he had the requisite knowledge of the\ndistribution because, inter alia,: (1) there was no evidence that the default\n 8\n\f Case: 18-30813 Document: 00515077689 Page: 9 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\nsettings were modified to show he had knowledge of the automatic file-sharing\nof the software; and (2) there was no evidence that he was on his computer or\nat home on March 29–30 to show that he had knowledge that the files were\nbeing transferred. He further argues that the Government even failed to\nprovide evidence that any distribution or file sharing occurred on the relevant\ndates.\n Under 18 U.S.C. § 2252A(a)(2), it is unlawful for a person to knowingly\ndistribute child pornography in or affecting interstate or foreign commerce by\nany means. Downloading child pornography “from a peer-to-peer computer\nnetwork and storing [it] in a shared folder accessible to other users on the\nnetwork” is prohibited under the statute, but “the Government must prove\nbeyond a reasonable doubt that the defendant engaged in such distribution\n‘knowingly.’” United States v. Romero-Medrano, 899 F.3d 356, 360 (5th Cir.\n2018) (citing United States v. Richardson, 713 F.3d 232, 234, 236 (5th Cir.\n2013)).\n Weighing the evidence in the light most deferential to the jury verdict\nand giving the Government the benefit of all reasonable inferences, there was\nsufficient evidence for a rational jury to find Waguespack guilty beyond a\nreasonable doubt of knowingly distributing child pornography. At trial, the\nGovernment presented evidence that:\n • A peer-to-peer file sharing software was installed on the computer\n in Waguespack’s room.\n • Waguespack was the sole user of the computer in his room.\n • The peer-to-peer file sharing software notified users when files\n were being uploaded or downloaded.\n • The software’s default settings for the shared folder on the seized\n computer were changed.\n • Waguespack had advanced technological proficiency.\n 9\n\f Case: 18-30813 Document: 00515077689 Page: 10 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\n • Agent Ratcliff downloaded child pornography using the peer-to-\n peer file sharing software from an IP Address in Waguespack’s\n home.\n • A user on the computer previously searched for, viewed,\n downloaded, and transferred child pornography using the file\n sharing software, including transferring child pornography after\n child pornography was distributed to Agent Ratcliff in March 2015.\n • The computer seized from Waguespack’s room contained over 2800\n images of child pornography.\n Taken together, the evidence is probative of Waguespack’s knowledge\nand is sufficient to demonstrate that Waguespack “knowingly” distributed\nchild pornography. The evidence was sufficient to support a jury finding of\nguilt beyond a reasonable doubt.\n Waguespack relies on extra-circuit precedent, United States v. Carroll,\n886 F.3d 1347 (11th Cir. 2018) to support his insufficiency argument.\nHowever, Carroll is distinguishable.\n In Carroll, the Eleventh Circuit reversed a distribution conviction after\nfinding that the Government failed to prove that the defendant was aware that\nthe contents of his shared folder automatically distributed to the peer-to-peer\nnetwork. 886 F.3d at 1353–54. The defendant argued that the Government\n“failed to present any evidence that he knew he was sharing child pornography\nfiles when they were automatically placed in a shared folder, and that he [could\nnot] be held liable for knowing distribution without some showing that he\nconsciously allowed others to access those files.” Id. at 1353. The court agreed,\nfinding that there was nothing in the record to indicate that the defendant was\naware that the contents of his shared folder automatically distributed to the\npeer-to-peer network. Id. According to the court, “the government failed to\nput on any evidence that [the peer-to-peer network], by design, would have\n 10\n\f Case: 18-30813 Document: 00515077689 Page: 11 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\nrequired [the defendant] to authorize file sharing or in any way recognize that\nhis downloaded files were being shared.” Id. at 1354. The court noted that the\ndesign of each network may bear on the issue of knowledge in different ways.\nId.\n Most detrimental to Waguespack’s argument that he lacked the requisite\nknowledge is the evidence that, by design, the software notified the user that\nfiles were being shared with others and that he altered the default settings of\nthe software. Both are indicia of knowledge. Waguespack fails to meet his\nburden that “no rational juror could have found guilt beyond a reasonable\ndoubt.” Hoffman, 901 F.3d at 541 (quotation omitted).\n b. “Knowing” Possession\n Waguespack argues that the Government failed to prove beyond a\nreasonable doubt that he “knowingly” possessed child pornography on\nSeptember 24, 2015, because the child pornography found on his computer was\neither cached files or deleted cached files. In addition, the child pornography\nfiles on his computer were located in an inaccessible portion of his hard drive.\n Under 18 U.S.C. § 2252A(a)(5)(B), it is unlawful for a person to\nknowingly possess child pornography in or affecting interstate or foreign\ncommerce by any means. To obtain a conviction under the statute, the\nGovernment must prove, inter alia, that a defendant “knowingly” possessed\nchild pornography. United States v. Terrell, 700 F.3d 755, 764 (5th Cir. 2012)\n(per curiam). The possession may be actual or constructive. United States v.\nSmith, 739 F.3d 843, 846 (5th Cir. 2014).\n “When illegal files are recovered from shared computers, courts permit\nan inference of constructive possession where the files’ nature and location are\nsuch that [the] computer’s owner must be aware of them.” United States v.\nSmith, 739 F.3d 843, 847 (5th Cir. 2014). “Such an inference, however, must\n\n\n 11\n\f Case: 18-30813 Document: 00515077689 Page: 12 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\nbe supported by evidence that ‘the defendant had knowledge of and access to’\nthe files.” Id. (quoting Moreland, 665 F.3d at 150).\n Weighing the evidence in the light most deferential to the jury verdict\nand giving the Government the benefit of all reasonable inferences, there was\nsufficient evidence for a rational jury to find beyond a reasonable doubt that\nWaguespack knowingly possessed child pornography. The Government\npresented evidence that there were over 2800 child pornography images on the\ncomputer seized from Waguespack’s room, the person using the seized\ncomputer was well-educated in computer usage, Waguespack was the sole user\nof the computer, anti-forensic and encryption software were discovered on the\ncomputer, child pornography was transferred to Agent Ratcliff from an IP\nAddress at Waguespack’s home, and path files with names indicative of child\npornography were stored on the computer. Together, this evidence is probative\nof whether Waguespack had the requisite knowledge and ability to access the\nfiles and exercise dominion or control over them. Cf. Moreland, 665 F.3d at\n148. Accordingly, Waguespack fails to meet his burden that “no rational juror\ncould have found guilt beyond a reasonable doubt.” Hoffman, 901 F.3d at 541\n(quotation omitted).\n 2. The district court did not clearly or obviously violate\n Waguespack’s Confrontation Clause rights.\n Waguespack argues that his rights under the Confrontation Clause were\nviolated when the district court admitted child pornography images\ndownloaded by Ratcliff and Ratcliff’s accompanying Torrential Downpour logs.\nAccording to Waguespack, the Government’s failure to call Ratcliff in its case-\nin-chief violated his right to confront the witness against him. The\nGovernment argues that the images and logs are machine-generated and are\nnot statements of a person.\n\n\n 12\n\f Case: 18-30813 Document: 00515077689 Page: 13 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\n The Confrontation Clause of the Sixth Amendment provides that “[i]n all\ncriminal prosecutions, the accused shall enjoy the right . . . to be confronted\nwith the witnesses against him.” U.S. Const. amend. VI. “The Confrontation\nClause bars the admission of ‘testimonial statements of a witness who did not\nappear at trial unless he was unavailable to testify, and the defendant had [ ]\na prior opportunity for cross-examination.’” United States v. Kizzee, 877 F.3d\n650, 656 (5th Cir. 2017) (quoting Crawford v. Washington, 541 U.S. 36, 53–54,\n(2004)). “[A] statement is testimonial if its primary purpose . . . is to establish\nor prove past events potentially relevant to later criminal prosecution.” Id.\n(quotation omitted).\n Generally, this court reviews alleged Confrontation Clause violations de\nnovo. United States v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019), as revised\n(Mar. 4, 2019). However, where, as here, the issue was not raised at trial, this\ncourt reviews the issue for plain error. 6 United States v. Martinez-Rios, 595\nF.3d 581, 584 (5th Cir. 2010). “To prevail, [Waguespack] must demonstrate\nthat[:] (1) the district court erred, (2) the error was plain, (3) the plain error\naffected his substantial rights, and (4) allowing the plain error to stand would\n‘seriously affect the fairness, integrity, or public reputation of judicial\nproceedings.’” United States v. Bree, 927 F.3d 856, 859 (5th Cir. 2019) (quoting\nPuckett v. United States, 556 U.S. 129, 135 (2009)).\n Waguespack relies on Bullcoming v. New Mexico, 564 U.S. 647 (2011), to\nsupport his argument that his rights were violated. In Bullcoming, the\n\n\n\n 6 Waguespack conceded in his reply brief that he failed to raise a Confrontation Clause\nobjection at trial. However, at oral argument, Waguespack’s counsel “walk[ed] back” the\nconcession and argued that the court should review the issue de novo because trial counsel\npreserved the issue. Oral Argument at 1:20–2:20. Counsel’s citation to the record does not\nsupport finding that trial counsel preserved the issue or that the “objection was specific\nenough to allow the trial court to take testimony, receive argument, or otherwise explore the\nissue raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997). Accordingly, we\nexercise plain error review.\n 13\n\f Case: 18-30813 Document: 00515077689 Page: 14 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\n“question presented [was] whether the Confrontation Clause permits the\nprosecution to introduce a forensic laboratory report containing a testimonial\ncertification—made for the purpose of proving a particular fact—through the\nin-court testimony of a scientist who did not sign the certification or perform\nor observe the test reported in the certification.” Id. at 652. The district court\nadmitted a forensic report into evidence certifying a defendant’s blood alcohol\nlevel where the defendant had been charged with driving under the influence.\nThe Government did not call the analyst who certified the report. Instead, the\nGovernment called another analyst who was familiar with the laboratory’s\ntesting procedures. The Court held that “surrogate testimony of that order\ndoes not meet the constitutional requirement. The accused’s right is to be\nconfronted with the analyst who made the certification, unless that analyst is\nunavailable at trial, and the accused had an opportunity, pretrial, to cross-\nexamine that particular scientist.” Id. However, as Justice Sotomayor noted\nin her concurrence:\n [Bullcoming] is not a case in which the State introduced only\n machine-generated results, such as a printout from a gas\n chromatograph. The State [] introduced [the original analyst’s]\n statements, which included his transcription of a blood alcohol\n concentration, apparently copied from a gas chromatograph\n printout, along with other statements about the procedures used\n in handling the blood sample . . . Thus, [the Court did] not decide\n whether . . . a State could introduce (assuming an adequate chain\n of custody foundation) raw data generated by a machine in\n conjunction with the testimony of an expert witness.\n\n\n564 U.S. at 673–74 (Sotomayor, J., concurring).\n In United States v. Ballesteros, this court rejected the defendant’s\nargument that the district court clearly or obviously violated his right under\nthe Confrontation Clause by admitting into evidence a report detailing his\nmovements from GPS tracking. 751 F. App’x 579, 580 (5th Cir. 2019) (mem.),\n\n 14\n\f Case: 18-30813 Document: 00515077689 Page: 15 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\ncert. denied, (U.S. Jun. 10, 2019) (No. 18-9205). We concluded that because the\ndefendant did not cite, and we had not found, “any decision by this court\nholding that the output of a computer program, such as a GPS report, amounts\nto a hearsay ‘statement’ under the Sixth Amendment,” the defendant failed to\nmeet his burden. Id.\n Similarly, here, Waguespack fails to meet his burden of establishing that\nthe district court plainly erred in admitting the downloaded materials.\nWaguespack has not cited, and we have not found any case to support\nWaguespack’s position that the machine-generated materials are statements\nof a witness or trigger the Confrontation Clause. Accordingly, Waguespack’s\nargument fails.\n 3. The Government’s rebuttal remarks were not\n improper.\n Waguespack argues that the Government made improper comments\nduring its rebuttal by referencing Ratcliff’s absence. Because Waguespack\ntimely objected to this issue, we review for abuse of discretion. United States\nv. Stephens, 571 F.3d 401, 407 (5th Cir. 2009).\n “Improper prosecutorial comments constitute reversible error only\nwhere the defendant’s right to a fair trial is substantially affected.” Id. at 407–\n408 (quotation omitted). “This court applies a two-step inquiry in analyzing\nclaims of prosecutorial misconduct:” (1) whether the Government made\nimproper remarks; and (2) whether the improper remarks prejudiced the\ndefendant. Id. at 408.\n “A prosecutor is prohibited from commenting directly or indirectly on a\ndefendant’s failure to testify or produce evidence.” Romero-Medrano, 899 F.3d\nat 361 (quotation omitted). “A prosecutor’s . . . remarks constitute a comment\non a defendant’s silence in violation of the Fifth Amendment if the manifest\nintent was to comment on a defendant’s silence, or if the character of the\n 15\n\f Case: 18-30813 Document: 00515077689 Page: 16 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\nremark was such that the jury would naturally and necessarily construe the\nremark to be a comment on a defendant’s silence.” Id. at 392 (quotation\nomitted). “[T]he comments complained of must be viewed within the context\nof the trial in which they are made.” Id. (quotation omitted).\n In Stephens, we found that the Government’s comment that both sides\ncould have subpoenaed a witness was a response to the defendant’s closing\nargument regarding a witness’s availability and was not an attempt to shift\nthe burden of proof. 7 571 F.3d at 408. We also found that even if the\nGovernment’s comment was improper, it was not sufficiently prejudicial to\nwarrant reversal because the district court provided a curative instruction and\nthere was ample evidence at trial. Id.\n Here, viewed in context, the Government’s remarks were not improper.\nThe jury would have understood the comments to be a response to the\ndefendant’s closing argument and not an attempt to shift the burden of proof.\nAnd, even if the remarks were improper, the jury instructions relating to the\n\n\n\n 7 The exchange during the closing argument in Stephens’ trial was as follows:\n\n Defense counsel: The guns. I suggested to you yesterday that they could have\n been bought on-line. And who could they have been bought by? Daniel Lee\n Garrett. We don’t know much about him. We know very little about him. The\n Government could have brought him into court. The Government could have\n subpoenaed him. They could have found him. They could have brought you\n this missing witness. We know very little about him.\n\n Government: I’m going to object, Your Honor.\n\n The Court: What’s your objection?\n\n Government: Both sides could have done that with subpoenas.\n\n Defense counsel: Of course both sides could have done it. But the point is it’s\n the Government’s burden to prove its case, and Mr. Costa knows that.\n\n The Court: Okay. Go on. Continue.\nId. at 407 n.8.\n 16\n\f Case: 18-30813 Document: 00515077689 Page: 17 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\nGovernment’s burden were curative. See Stephens, 571 F.3d at 408. Further,\nWaguespack fails to demonstrate that the remarks were sufficiently\nprejudicial to warrant reversal because there was ample evidence at trial to\nsupport the jury’s verdict.\n 4. The Government did not violate Waguespack’s Brady\n rights by not disclosing the grand jury transcripts.\n Waguespack argues that the district court erred in denying his motion\nto compel the production of the grand jury transcripts. Specifically,\nWaguespack argues that the date change from the first indictment to the\nsuperseding indictment triggered the Government’s Brady obligations, and he\nwas entitled to receive a copy of the transcripts. According to Waguespack,\n“[the] witness statements used in obtaining an indictment for the wrong date\nshould have been available to [him] to determine what other defects may have\nexisted in the Government’s case.”\n “To establish a Brady violation, a defendant must show: (1) the evidence\nat issue was favorable to the accused, either because it was exculpatory or\nimpeaching; (2) the evidence was suppressed by the prosecution; and (3) the\nevidence was material.” United States v. Cessa, 872 F.3d 267, 271 (5th Cir.\n2017) (quotation omitted). “Evidence is material if there is a reasonable\nprobability that, had the evidence been disclosed to the defense, the result of\nthe proceeding would have been different.” Id. (quotation omitted). “A\nreasonable probability of a different result is one in which the suppressed\nevidence undermines confidence in the outcome of the trial.” Id. (quotation\nomitted).\n Waguespack has not shown that the grand jury transcripts were\nmaterial. He provides no support to demonstrate “a reasonable probability\nthat, had the [transcripts] been disclosed to the defense, the result of the\nproceeding would have been different,” and that the nondisclosure of the grand\n 17\n\f Case: 18-30813 Document: 00515077689 Page: 18 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\njury transcripts undermined confidence in the outcome of the trial. Cessa, 872\nF.3d at 271. He simply asks for them to determine “what other defects may\nhave existed in the Government’s case.” Accordingly, Waguespack’s challenge\nas a Brady violation fails.\n B. Waguespack’s Sentence Is Reasonable.\n Waguespack appeals his sentence on two grounds. He argues that: (1)\nthe district court improperly applied the obstruction of justice sentencing\nenhancement; and (2) his sentence is substantively unreasonable. We find no\nreversible error.\n 1. Waguespack’s sentence is procedurally reasonable.\n Waguespack argues that his sentence is procedurally unreasonable\nbecause the district court erroneously applied an obstruction of justice\nsentencing enhancement.\n A district court may apply a two-level sentencing enhancement under\nU.S.S.G. § 3C1.1 if:\n (1) the defendant willfully obstructed or impeded, or attempted to\n obstruct or impede, the administration of justice with respect to\n the investigation, prosecution, or sentencing of the instant offense\n of conviction, and (2) the obstructive conduct related to (A) the\n defendant’s offense of conviction and any relevant conduct; or (B)\n a closely related offense . . . .\n\n\nU.S.S.G. § 3C1.1. “Obstructive conduct that occurred prior to the start of the\ninvestigation of the instant offense of conviction may be covered by this\nguideline if the conduct was purposefully calculated, and likely, to thwart the\ninvestigation or prosecution of the offense of conviction.” Id. at Cmt. 1.\n “A finding of obstruction of justice is a factual finding that is reviewed\nfor clear error.” United States v. Zamora-Salazar, 860 F.3d 826, 836 (5th Cir.),\ncert. denied, 138 S. Ct. 413 (2017). “A factual finding is not clearly erroneous\nif it is plausible in light of the record as a whole.” Id. (quotation omitted).\n 18\n\f Case: 18-30813 Document: 00515077689 Page: 19 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\n The district court applied the obstruction of justice sentencing\nenhancement after finding that Waguespack’s conduct was “purposefully\ncalculated and thwarted the investigation or prosecution of the offense of\nconviction.” The court found that, inter alia, the seized computer was actively\nsearching for and downloading files with file names indicative of child\npornography when law enforcement executed the search warrant, the\ncomputer’s deleted file space contained file paths and file names indicative of\nchild pornography, anti-forensic and encryption software were installed on the\ncomputer, and the anti-forensic software had been programmed with a task\nlist of file paths with names indicative of child pornography.\n Waguespack argues that the district court erred in applying the\nenhancement because “there was no evidence that [he] engaged in any conduct\nduring the Government’s investigation of his activities or even that he was\naware that an investigation was about to commence.” However, based on the\nplain language of the statutory commentary, the enhancement may be applied\nfor conduct that occurred prior to an investigation if the conduct was\n“purposefully calculated, and likely, to thwart the investigation or prosecution\nof the offense of conviction,” see § 3C1.1, Cmt. 1, which the district court\nspecifically found in Waguespack’s case.\n In light of the record as a whole and the plain language of the statutory\ncommentary, Waguespack fails to demonstrate that the district court clearly\nerred in applying the enhancement.\n 2. Waguespack’s sentence is substantively reasonable.\n Waguespack argues that, despite his sentence falling below the\nGuidelines, his sentence is substantively unreasonable because the district\ncourt failed to account for 18 U.S.C. § 3553(a)(6)).\n We review the substantive reasonableness of a sentence under an abuse-\nof-discretion standard. United States v. Halverson, 897 F.3d 645, 651 (5th Cir.\n 19\n\f Case: 18-30813 Document: 00515077689 Page: 20 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\n2018). However, “[a]ppellate review of the substantive reasonableness of a\nsentence is ‘highly deferential,’” and a within-Guidelines sentence is entitled\nto the presumption of reasonableness. Hoffman, 901 F.3d at 554–55. The\npresumption is rebutted “only if the appellant demonstrates that the sentence\ndoes not account for a [18 U.S.C. § 3553(a)] factor that should receive\nsignificant weight, gives significant weight to an irrelevant or improper factor,\nor represents a clear error of judgment in balancing the sentencing factors.”\nUnited States v. Martinez, 921 F.3d 452, 483 (5th Cir. 2019) (quotation\nomitted).\n Section 3553(a)(6) requires courts to consider “the need to avoid\nunwarranted sentence disparities among defendants with similar records who\nhave been found guilty of similar conduct.” “[W]here a sentence is within the\nguidelines range, the unwarranted-disparity factor is not afforded significant\nweight.” United States v. Martinez, 739 F. App’x 245, 247 (5th Cir. 2018)\n(mem.) (citing United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011)).\n Because Waguespack’s sentence was below the Guidelines, his sentence\nis entitled to the presumption of reasonableness. His attempt to rebut the\npresumption by arguing that the district court failed to account for § 3553(a)(6)\nis unavailing because the unwarranted-disparity factor is not afforded\nsignificant weight in his case. Even if it was, he fails to offer evidence that his\nsentence represents an unwarranted disparity with similarly situated\ndefendants. See Martinez, 739 F. App’x at 246–47. Waguespack includes\nstatistics of sentences for child pornography offenses, but “[n]ational averages\nof sentences that provide no details underlying the sentences are unreliable to\ndetermine unwarranted disparity because they do not reflect the\nenhancements or adjustments for the aggravating or mitigating factors that\ndistinguish individual cases.” United States v. Willingham, 497 F.3d 541, 544\n(5th Cir. 2007). The statistics that Waguespack provides “disregard individual\n 20\n\f Case: 18-30813 Document: 00515077689 Page: 21 Date Filed: 08/15/2019\n\n\n\n No. 18-30813\ncircumstances and only reflect a broad grouping of sentences imposed on a\nbroad grouping of criminal defendants; consequently, they are basically\nmeaningless in considering whether a disparity with respect to a particular\ndefendant is warranted or unwarranted.” Id. at 544–45.\n The district court stated that it considered all the factors in fashioning\nWaguespack’s sentence. Of note, the district court seemed to give significant\nweight to the victim impact statements and Waguespack’s offense being a\nserious offense which affected many people.\n The district court did not abuse its discretion in sentencing Waguespack.\nIII. CONCLUSION\n For the foregoing reasons, the district court’s judgment is AFFIRMED.\n\n\n\n\n 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee v. Christopher G. WAGUESPACK, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-30813 Document: 00515077689 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-30813 August 15, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nCHRISTOPHER G. WAGUESPACK,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Middle District of Louisiana\\n\\n\\nBefore HAYNES, GRAVES, and DUNCAN, Circuit Judges.\\nJAMES E. GRAVES, Circuit Judge:\\n A jury convicted Christopher G. Waguespack of knowingly distributing\\nand possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and\\n2252A(a)(5)(B). The district court sentenced Waguespack to 180 months’\\nimprisonment on each count to run concurrently, followed by 10 years of\\nsupervised release. He now challenges his conviction and sentence on six\\ngrounds. We AFFIRM.\\nI. BACKGROUND\\n A. Investigation\\n In March 2015, Investigator Louis Ratcliff from the Louisiana Attorney\\nGeneral’s Office conducted an undercover investigation of peer-to-peer\\n\\f Case: 18-30813 Document: 00515077689 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nnetworks 1 for child pornography. Ratcliff used Torrential Downpour 2 to\\ndownload over 400 images of child pornography from an IP Address in Baton\\nRouge, Louisiana. On May 5, 2015, he opened a file on his March investigation\\nand authored a report on his investigation results. On June 13, 2015, Ratcliff\\nconducted another investigation and downloaded over 200 images of child\\npornography from an IP Address in Baton Rouge, Louisiana. Ratcliff\\nsubpoenaed Cox Communications to provide the IP Addresses for the\\ndownloads that occurred on March 29–30, 2015, and June 13, 2015. Cox\\nCommunications informed Ratcliff that the IP Addresses belonged to\\nWaguespack’s father, Larry Waguespack, with whom Waguespack lived.\\n On September 24, 2015, officers executed a search warrant at\\nWaguespack’s residence. The officers seized a computer from Waguespack’s\\nbedroom. The computer contained software actively searching for and\\ndownloading files with file names indicative of child pornography. After a\\nforensic examination, the computer was found to have encrypted space and\\n\\n\\n\\n\\n 1 Peer-to-peer file sharing is a means of Internet communication utilizing\\n software that lets users exchange digital files through a network of linked\\n computers. Users access peer-to-peer networks by downloading the peer-to-\\n peer software from the Internet; this software is used exclusively for sharing\\n digital files. Generally, after a user downloads or installs the software, either\\n the user selects a folder to store downloaded files or the installation program\\n designates the shared folder as the default folder into which files are\\n automatically downloaded. Files that are downloaded into the shared folder\\n (or downloaded into a separate folder but later placed into the shared folder)\\n are available to anyone on the peer-to-peer network for downloading. Someone\\n interested in sharing child pornography with other peer-to-peer network users\\n need only leave or place such files in his shared folder, which other users may\\n then access by searching for relevant terms and phrases.\\nUnited States v. Richardson, 713 F.3d 232, 233–34 (5th Cir. 2013).\\n 2 At trial, Agent David Ferris testified that Torrential Downpour is a BitTorrent\\n\\nprogram used by law enforcement to investigate peer-to-peer networks. It targets IP\\naddresses that have recently shared child pornography and creates an activity log of the files\\ninvolved.\\n 2\\n\\f Case: 18-30813 Document: 00515077689 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nanti-forensic software, 3 CCleaner & Eraser, installed. There were file paths\\nwith names indicative of child pornography that led to an “E-drive,” but\\nexaminers were unable to locate an “E-drive” in the unencrypted space of the\\ncomputer. The examiners were also unable to find any user-accessible child\\npornography on the computer. However, the examiners found over 2,800\\nimages and four videos of child pornography in deleted thumbnail cache 4 in a\\ndeleted zip file in an unallocated space of the computer. The file names in the\\nunallocated space were not indicative of child pornography.\\n B. Indictment & Superseding Indictment\\n Relevant here, the grand jury returned an indictment charging\\nWaguespack with knowingly distributing child pornography on May 5, 2015\\nand June 13, 2015, and knowingly possessing child pornography on September\\n24, 2015. In a probable cause affidavit to support the search warrant\\napplication, Ratcliff stated that at least one child pornography offense\\noccurred on May 5, 2015. In fact, May 5, 2015, was the date that Ratcliff\\nauthored his investigation report and not the date that any of the offenses\\noccurred.\\n Subsequently, the Government obtained a Superseding Indictment. The\\nSuperseding Indictment mirrored the original indictment except the date of\\nthe May 5, 2015 offense was changed to between March 29, 2015 and March\\n30, 2015. Waguespack pleaded not guilty to the counts in the Superseding\\nIndictment.\\n\\n\\n\\n\\n 3 The Government’s expert testified that anti-forensic software is used to cover a\\ncomputer user’s tracks.\\n 4 Cache files are files that a web browser automatically creates that may have been\\n\\nseen on the internet that are stored in hidden or inaccessible space.\\n 3\\n\\f Case: 18-30813 Document: 00515077689 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n C. Pre-Trial\\n Waguespack filed several pre-trial motions, including a motion for the\\nproduction of the transcripts of the grand jury proceedings and a motion to\\nsuppress. The district court denied both motions.\\n In the motion for production, Waguespack argued that the date\\ndiscrepancy between March 29–30 and May 5 showed that Ratcliff possibly lied\\nto the Grand Jury. 5 He argued that the Government’s knowing use of false\\ntestimony entitled him to the transcripts. The district court denied the motion\\nand found, inter alia, that Waguespack failed to show a particularized need for\\nthe transcripts. The court found that Waguespack failed to present evidence\\nthat Ratcliff was lying, and not simply making an error. The court further\\nfound that even if Ratcliff lied, the Superseding Indictment with the correct\\ndates remedied any injustice.\\n In the motion to suppress, Waguespack argued that the evidence\\nobtained from the search should have been suppressed because the search\\nwarrant application contained a material misstatement, violating Franks v.\\nDelaware, 438 U.S. 154 (1978), as May 5 was listed instead of March 29–30.\\nHe argued that no judge would have found probable cause without the\\nmisrepresented dates. After a hearing, the district court denied the motion\\nand found that Waguespack failed to prove that Ratcliff made the statements\\n“knowingly and intentionally, or with reckless disregard for the truth.” The\\nCourt also found that even if Ratcliff knowingly lied about the dates and the\\nMay 5, 2015 date was omitted, there was still sufficient information to support\\nprobable cause.\\n\\n\\n\\n\\n 5 March 29–30 is the date that Ratcliff provided to support the subpoena to Cox\\nCommunications. May 5 is the date that Ratcliff used in his affidavit of probable cause to\\nsupport the search warrant and the date that was listed in the original indictment.\\n 4\\n\\f Case: 18-30813 Document: 00515077689 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n D. Trial\\n On October 16, 2017, the jury trial began. Ratcliff was not a witness.\\nThe Government introduced Ratcliff’s download logs through Agent David\\nFerris, another investigator in the Louisiana Attorney General’s Office. Agent\\nFerris was qualified as an expert in the field of online exploitation\\ninvestigations and peer-to-peer file sharing. Waguespack objected to the\\nintroduction of the exhibits related to Ratcliff’s reports. He claimed lack of\\nfoundation and inadmissible hearsay. The objections were overruled.\\n The Government also called Waguespack’s parents to testify.\\nWaguespack’s parents testified as to their knowledge of computers. His\\nmother testified that Waguespack’s father, Larry, “tinker[ed]” with computers,\\nbut that Waguespack did not, and “[Waguespack] wasn’t really into fixing\\nother people’s computers or anything like that . . . .” She also testified that\\nWaguespack is “knowledgeable [about computers] . . . he knows how to use\\nthem and he knows more than [she knows].”\\n Waguespack’s father, Larry, testified that Waguespack was the only\\nperson that used the computer in Waguespack’s room. Larry also testified that\\nhe was knowledgeable of CCleaner as software “to get rid of . . . history folders,\\nthat kind of stuff and e-mail junk” and understood it as “something common .\\n. . to clean [the computer] to keep it from getting viruses and stuff.” He learned\\nabout CCleaner from the internet and from Waguespack. He testified that he\\nand Waguespack discussed CCleaner years ago because Larry was getting\\nviruses on his computer. Larry also testified that he was knowledgeable\\nenough about computers that he could build one from scratch. He had not\\nheard of Eraser, had minimal knowledge of encryption, and had only heard of\\nBitTorrent from the investigation.\\n\\n\\n\\n\\n 5\\n\\f Case: 18-30813 Document: 00515077689 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n After the Government rested, Waguespack moved for judgment of\\nacquittal under Federal Rule of Criminal Procedure 29. The motion was\\ndenied.\\n The parties then presented their closing arguments. Waguespack’s\\ncounsel stated the following in his closing:\\n Ladies and Gentlemen, where is Louis Ratcliff? You heard from\\n seven witnesses at this trial, and all but one testified about Louis\\n Ratcliff. And the guy that didn’t was the Cox Communications guy\\n . . . . Every single piece of evidence in this case, came from Louis\\n Ratcliff. The Government has the burden of proof in this case and\\n every case where they’re charging someone with a criminal offense,\\n and they have to prove their case beyond all reasonable doubt, and\\n yet the government did not call Louis Ratcliff as a witness.\\n ***\\n This entire case, every single piece of evidence that you have to\\n rely on was touched by Louis Ratcliff. Every single thing the\\n government introduced to try to prove their case requires that you\\n trust Louis Ratcliff, not just trust him, ladies and gentlemen, you\\n have to trust him beyond a reasonable doubt because he’s the\\n source of the case, but the government didn’t trust him enough to\\n call him as a witness. They didn’t call Louis Ratcliff to tell us why\\n his images say March 29th and 30th, but every report says May\\n 5th and his sworn affidavits say May 5th. They didn’t call Louis\\n Ratcliff to tell you that if he received those images in March, why\\n did he wait until May 13th to put them in the evidence locker?\\n ***\\n Why [sic] are all of the videos and images that Mr. Ratcliff\\n supposedly downloaded, why are none of them on [Waguespack]’s\\n computer when they show up to do the search? Louis Ratcliff\\n didn’t come and answer any of those questions because there’s no\\n explanation. There is no answer for those questions.\\n\\n\\nThe Government stated the following in its rebuttal:\\n The only person that brought up Mr. Ratcliff here today was\\n [Waguespack’s counsel]. What I would simply say to this point,\\n that if [Waguespack’s counsel] thought that Louis Ratcliff was\\n going to help his side of this case, he has the same subpoena power\\n as the United States government to demand that witnesses be\\n 6\\n\\f Case: 18-30813 Document: 00515077689 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n here. And I’m sure if Mr. Ratcliff was going to be that helpful,\\n [Waguespack’s counsel] would have had him in this courtroom\\n talking to you, not just suggesting that it may have been\\n something helpful.\\n\\n\\n The jury found Waguespack guilty of knowingly distributing and\\npossessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and\\n2252A(a)(5)(B). The jury, responding to a special verdict form, also found that\\nWaguespack possessed child pornography that involved prepubescent minors.\\n E. Sentencing\\n The Presentence Investigation Report (“PSR”) recommended, inter alia,\\na two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1 because\\nthere was anti-forensic software installed on Waguespack’s computer.\\nWaguespack objected to the enhancement and argued that the enhancement\\ndid not apply because he never took any action to delete or conceal evidence\\nafter he learned of the investigation. The district court overruled the objection.\\n The PSR calculated Waguespack’s offense level as 39, inclusive of the\\nenhancement. Based on Waguespack’s offense level and criminal history\\ncategory of I, his Guidelines’ range was 262 to 327 months. The court granted\\nWaguespack a downward variance and sentenced him below the Guidelines to\\n180 months’ imprisonment on each count to run concurrently, followed by 10\\nyears of supervised release.\\n Waguespack now timely appeals his conviction and sentence.\\nII. DISCUSSION\\n A. Waguespack’s Conviction Is Proper.\\n Waguespack appeals his conviction on four grounds. He argues that: (1)\\nthe Government failed to prove beyond a reasonable doubt that Waguespack\\n“knowingly” distributed and possessed child pornography; (2) the Government\\nviolated Waguespack’s Sixth Amendment Confrontation Clause right by\\n\\n 7\\n\\f Case: 18-30813 Document: 00515077689 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nfailing to call Ratcliff as a witness; (3) the Government made improper\\ncomments in its rebuttal; and (4) the Government committed a Brady violation\\nby failing to provide a copy of the grand jury transcripts to Waguespack. We\\nperceive no reversible error.\\n 1. There was sufficient evidence to convict Waguespack\\n of knowingly distributing and possessing child\\n pornography.\\n We review Waguespack’s claim that there was insufficient evidence to\\nsupport the jury’s verdict de novo. United States v. Hoffman, 901 F.3d 523, 541\\n(5th Cir. 2018), as revised (Aug. 28, 2018), cert. denied, No. 18-1049, 2019 WL\\n536773 (U.S. May 20, 2019). “We weigh the evidence ‘in a light most\\ndeferential’ to the jury verdict and give the party that convinced the jury the\\nbenefit of all reasonable inferences.” Id. (quoting United States v. Lucio, 428\\nF.3d 519, 522 (5th Cir. 2005)).\\n “We must affirm the verdict unless no rational juror could have found\\nguilt beyond a reasonable doubt.” Hoffman, 901 F.3d at 541 (quotation\\nomitted). However, “a verdict may not rest on mere suspicion, speculation, or\\nconjecture, or on an overly attenuated piling of inference on inference.” United\\nStates v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011) (quotation omitted). And,\\nthis court will not “credit inferences within the realm of possibility when those\\ninferences are unreasonable.” Id. (quotation omitted). Accordingly, we will\\noverturn a guilty verdict “where the government has done nothing more than\\npile inference upon inference to prove guilt.” Id. (quotation omitted).\\n a. “Knowing” Distribution\\n Waguespack concedes that “[p]lacing content in a shared folder on a\\npeer-to-peer program amounts to distribution.” However, he argues that there\\nwas insufficient evidence to prove that he had the requisite knowledge of the\\ndistribution because, inter alia,: (1) there was no evidence that the default\\n 8\\n\\f Case: 18-30813 Document: 00515077689 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nsettings were modified to show he had knowledge of the automatic file-sharing\\nof the software; and (2) there was no evidence that he was on his computer or\\nat home on March 29–30 to show that he had knowledge that the files were\\nbeing transferred. He further argues that the Government even failed to\\nprovide evidence that any distribution or file sharing occurred on the relevant\\ndates.\\n Under 18 U.S.C. § 2252A(a)(2), it is unlawful for a person to knowingly\\ndistribute child pornography in or affecting interstate or foreign commerce by\\nany means. Downloading child pornography “from a peer-to-peer computer\\nnetwork and storing [it] in a shared folder accessible to other users on the\\nnetwork” is prohibited under the statute, but “the Government must prove\\nbeyond a reasonable doubt that the defendant engaged in such distribution\\n‘knowingly.’” United States v. Romero-Medrano, 899 F.3d 356, 360 (5th Cir.\\n2018) (citing United States v. Richardson, 713 F.3d 232, 234, 236 (5th Cir.\\n2013)).\\n Weighing the evidence in the light most deferential to the jury verdict\\nand giving the Government the benefit of all reasonable inferences, there was\\nsufficient evidence for a rational jury to find Waguespack guilty beyond a\\nreasonable doubt of knowingly distributing child pornography. At trial, the\\nGovernment presented evidence that:\\n • A peer-to-peer file sharing software was installed on the computer\\n in Waguespack’s room.\\n • Waguespack was the sole user of the computer in his room.\\n • The peer-to-peer file sharing software notified users when files\\n were being uploaded or downloaded.\\n • The software’s default settings for the shared folder on the seized\\n computer were changed.\\n • Waguespack had advanced technological proficiency.\\n 9\\n\\f Case: 18-30813 Document: 00515077689 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n • Agent Ratcliff downloaded child pornography using the peer-to-\\n peer file sharing software from an IP Address in Waguespack’s\\n home.\\n • A user on the computer previously searched for, viewed,\\n downloaded, and transferred child pornography using the file\\n sharing software, including transferring child pornography after\\n child pornography was distributed to Agent Ratcliff in March 2015.\\n • The computer seized from Waguespack’s room contained over 2800\\n images of child pornography.\\n Taken together, the evidence is probative of Waguespack’s knowledge\\nand is sufficient to demonstrate that Waguespack “knowingly” distributed\\nchild pornography. The evidence was sufficient to support a jury finding of\\nguilt beyond a reasonable doubt.\\n Waguespack relies on extra-circuit precedent, United States v. Carroll,\\n886 F.3d 1347 (11th Cir. 2018) to support his insufficiency argument.\\nHowever, Carroll is distinguishable.\\n In Carroll, the Eleventh Circuit reversed a distribution conviction after\\nfinding that the Government failed to prove that the defendant was aware that\\nthe contents of his shared folder automatically distributed to the peer-to-peer\\nnetwork. 886 F.3d at 1353–54. The defendant argued that the Government\\n“failed to present any evidence that he knew he was sharing child pornography\\nfiles when they were automatically placed in a shared folder, and that he [could\\nnot] be held liable for knowing distribution without some showing that he\\nconsciously allowed others to access those files.” Id. at 1353. The court agreed,\\nfinding that there was nothing in the record to indicate that the defendant was\\naware that the contents of his shared folder automatically distributed to the\\npeer-to-peer network. Id. According to the court, “the government failed to\\nput on any evidence that [the peer-to-peer network], by design, would have\\n 10\\n\\f Case: 18-30813 Document: 00515077689 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nrequired [the defendant] to authorize file sharing or in any way recognize that\\nhis downloaded files were being shared.” Id. at 1354. The court noted that the\\ndesign of each network may bear on the issue of knowledge in different ways.\\nId.\\n Most detrimental to Waguespack’s argument that he lacked the requisite\\nknowledge is the evidence that, by design, the software notified the user that\\nfiles were being shared with others and that he altered the default settings of\\nthe software. Both are indicia of knowledge. Waguespack fails to meet his\\nburden that “no rational juror could have found guilt beyond a reasonable\\ndoubt.” Hoffman, 901 F.3d at 541 (quotation omitted).\\n b. “Knowing” Possession\\n Waguespack argues that the Government failed to prove beyond a\\nreasonable doubt that he “knowingly” possessed child pornography on\\nSeptember 24, 2015, because the child pornography found on his computer was\\neither cached files or deleted cached files. In addition, the child pornography\\nfiles on his computer were located in an inaccessible portion of his hard drive.\\n Under 18 U.S.C. § 2252A(a)(5)(B), it is unlawful for a person to\\nknowingly possess child pornography in or affecting interstate or foreign\\ncommerce by any means. To obtain a conviction under the statute, the\\nGovernment must prove, inter alia, that a defendant “knowingly” possessed\\nchild pornography. United States v. Terrell, 700 F.3d 755, 764 (5th Cir. 2012)\\n(per curiam). The possession may be actual or constructive. United States v.\\nSmith, 739 F.3d 843, 846 (5th Cir. 2014).\\n “When illegal files are recovered from shared computers, courts permit\\nan inference of constructive possession where the files’ nature and location are\\nsuch that [the] computer’s owner must be aware of them.” United States v.\\nSmith, 739 F.3d 843, 847 (5th Cir. 2014). “Such an inference, however, must\\n\\n\\n 11\\n\\f Case: 18-30813 Document: 00515077689 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nbe supported by evidence that ‘the defendant had knowledge of and access to’\\nthe files.” Id. (quoting Moreland, 665 F.3d at 150).\\n Weighing the evidence in the light most deferential to the jury verdict\\nand giving the Government the benefit of all reasonable inferences, there was\\nsufficient evidence for a rational jury to find beyond a reasonable doubt that\\nWaguespack knowingly possessed child pornography. The Government\\npresented evidence that there were over 2800 child pornography images on the\\ncomputer seized from Waguespack’s room, the person using the seized\\ncomputer was well-educated in computer usage, Waguespack was the sole user\\nof the computer, anti-forensic and encryption software were discovered on the\\ncomputer, child pornography was transferred to Agent Ratcliff from an IP\\nAddress at Waguespack’s home, and path files with names indicative of child\\npornography were stored on the computer. Together, this evidence is probative\\nof whether Waguespack had the requisite knowledge and ability to access the\\nfiles and exercise dominion or control over them. Cf. Moreland, 665 F.3d at\\n148. Accordingly, Waguespack fails to meet his burden that “no rational juror\\ncould have found guilt beyond a reasonable doubt.” Hoffman, 901 F.3d at 541\\n(quotation omitted).\\n 2. The district court did not clearly or obviously violate\\n Waguespack’s Confrontation Clause rights.\\n Waguespack argues that his rights under the Confrontation Clause were\\nviolated when the district court admitted child pornography images\\ndownloaded by Ratcliff and Ratcliff’s accompanying Torrential Downpour logs.\\nAccording to Waguespack, the Government’s failure to call Ratcliff in its case-\\nin-chief violated his right to confront the witness against him. The\\nGovernment argues that the images and logs are machine-generated and are\\nnot statements of a person.\\n\\n\\n 12\\n\\f Case: 18-30813 Document: 00515077689 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n The Confrontation Clause of the Sixth Amendment provides that “[i]n all\\ncriminal prosecutions, the accused shall enjoy the right . . . to be confronted\\nwith the witnesses against him.” U.S. Const. amend. VI. “The Confrontation\\nClause bars the admission of ‘testimonial statements of a witness who did not\\nappear at trial unless he was unavailable to testify, and the defendant had [ ]\\na prior opportunity for cross-examination.’” United States v. Kizzee, 877 F.3d\\n650, 656 (5th Cir. 2017) (quoting Crawford v. Washington, 541 U.S. 36, 53–54,\\n(2004)). “[A] statement is testimonial if its primary purpose . . . is to establish\\nor prove past events potentially relevant to later criminal prosecution.” Id.\\n(quotation omitted).\\n Generally, this court reviews alleged Confrontation Clause violations de\\nnovo. United States v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019), as revised\\n(Mar. 4, 2019). However, where, as here, the issue was not raised at trial, this\\ncourt reviews the issue for plain error. 6 United States v. Martinez-Rios, 595\\nF.3d 581, 584 (5th Cir. 2010). “To prevail, [Waguespack] must demonstrate\\nthat[:] (1) the district court erred, (2) the error was plain, (3) the plain error\\naffected his substantial rights, and (4) allowing the plain error to stand would\\n‘seriously affect the fairness, integrity, or public reputation of judicial\\nproceedings.’” United States v. Bree, 927 F.3d 856, 859 (5th Cir. 2019) (quoting\\nPuckett v. United States, 556 U.S. 129, 135 (2009)).\\n Waguespack relies on Bullcoming v. New Mexico, 564 U.S. 647 (2011), to\\nsupport his argument that his rights were violated. In Bullcoming, the\\n\\n\\n\\n 6 Waguespack conceded in his reply brief that he failed to raise a Confrontation Clause\\nobjection at trial. However, at oral argument, Waguespack’s counsel “walk[ed] back” the\\nconcession and argued that the court should review the issue de novo because trial counsel\\npreserved the issue. Oral Argument at 1:20–2:20. Counsel’s citation to the record does not\\nsupport finding that trial counsel preserved the issue or that the “objection was specific\\nenough to allow the trial court to take testimony, receive argument, or otherwise explore the\\nissue raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997). Accordingly, we\\nexercise plain error review.\\n 13\\n\\f Case: 18-30813 Document: 00515077689 Page: 14 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n“question presented [was] whether the Confrontation Clause permits the\\nprosecution to introduce a forensic laboratory report containing a testimonial\\ncertification—made for the purpose of proving a particular fact—through the\\nin-court testimony of a scientist who did not sign the certification or perform\\nor observe the test reported in the certification.” Id. at 652. The district court\\nadmitted a forensic report into evidence certifying a defendant’s blood alcohol\\nlevel where the defendant had been charged with driving under the influence.\\nThe Government did not call the analyst who certified the report. Instead, the\\nGovernment called another analyst who was familiar with the laboratory’s\\ntesting procedures. The Court held that “surrogate testimony of that order\\ndoes not meet the constitutional requirement. The accused’s right is to be\\nconfronted with the analyst who made the certification, unless that analyst is\\nunavailable at trial, and the accused had an opportunity, pretrial, to cross-\\nexamine that particular scientist.” Id. However, as Justice Sotomayor noted\\nin her concurrence:\\n [Bullcoming] is not a case in which the State introduced only\\n machine-generated results, such as a printout from a gas\\n chromatograph. The State [] introduced [the original analyst’s]\\n statements, which included his transcription of a blood alcohol\\n concentration, apparently copied from a gas chromatograph\\n printout, along with other statements about the procedures used\\n in handling the blood sample . . . Thus, [the Court did] not decide\\n whether . . . a State could introduce (assuming an adequate chain\\n of custody foundation) raw data generated by a machine in\\n conjunction with the testimony of an expert witness.\\n\\n\\n564 U.S. at 673–74 (Sotomayor, J., concurring).\\n In United States v. Ballesteros, this court rejected the defendant’s\\nargument that the district court clearly or obviously violated his right under\\nthe Confrontation Clause by admitting into evidence a report detailing his\\nmovements from GPS tracking. 751 F. App’x 579, 580 (5th Cir. 2019) (mem.),\\n\\n 14\\n\\f Case: 18-30813 Document: 00515077689 Page: 15 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\ncert. denied, (U.S. Jun. 10, 2019) (No. 18-9205). We concluded that because the\\ndefendant did not cite, and we had not found, “any decision by this court\\nholding that the output of a computer program, such as a GPS report, amounts\\nto a hearsay ‘statement’ under the Sixth Amendment,” the defendant failed to\\nmeet his burden. Id.\\n Similarly, here, Waguespack fails to meet his burden of establishing that\\nthe district court plainly erred in admitting the downloaded materials.\\nWaguespack has not cited, and we have not found any case to support\\nWaguespack’s position that the machine-generated materials are statements\\nof a witness or trigger the Confrontation Clause. Accordingly, Waguespack’s\\nargument fails.\\n 3. The Government’s rebuttal remarks were not\\n improper.\\n Waguespack argues that the Government made improper comments\\nduring its rebuttal by referencing Ratcliff’s absence. Because Waguespack\\ntimely objected to this issue, we review for abuse of discretion. United States\\nv. Stephens, 571 F.3d 401, 407 (5th Cir. 2009).\\n “Improper prosecutorial comments constitute reversible error only\\nwhere the defendant’s right to a fair trial is substantially affected.” Id. at 407–\\n408 (quotation omitted). “This court applies a two-step inquiry in analyzing\\nclaims of prosecutorial misconduct:” (1) whether the Government made\\nimproper remarks; and (2) whether the improper remarks prejudiced the\\ndefendant. Id. at 408.\\n “A prosecutor is prohibited from commenting directly or indirectly on a\\ndefendant’s failure to testify or produce evidence.” Romero-Medrano, 899 F.3d\\nat 361 (quotation omitted). “A prosecutor’s . . . remarks constitute a comment\\non a defendant’s silence in violation of the Fifth Amendment if the manifest\\nintent was to comment on a defendant’s silence, or if the character of the\\n 15\\n\\f Case: 18-30813 Document: 00515077689 Page: 16 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nremark was such that the jury would naturally and necessarily construe the\\nremark to be a comment on a defendant’s silence.” Id. at 392 (quotation\\nomitted). “[T]he comments complained of must be viewed within the context\\nof the trial in which they are made.” Id. (quotation omitted).\\n In Stephens, we found that the Government’s comment that both sides\\ncould have subpoenaed a witness was a response to the defendant’s closing\\nargument regarding a witness’s availability and was not an attempt to shift\\nthe burden of proof. 7 571 F.3d at 408. We also found that even if the\\nGovernment’s comment was improper, it was not sufficiently prejudicial to\\nwarrant reversal because the district court provided a curative instruction and\\nthere was ample evidence at trial. Id.\\n Here, viewed in context, the Government’s remarks were not improper.\\nThe jury would have understood the comments to be a response to the\\ndefendant’s closing argument and not an attempt to shift the burden of proof.\\nAnd, even if the remarks were improper, the jury instructions relating to the\\n\\n\\n\\n 7 The exchange during the closing argument in Stephens’ trial was as follows:\\n\\n Defense counsel: The guns. I suggested to you yesterday that they could have\\n been bought on-line. And who could they have been bought by? Daniel Lee\\n Garrett. We don’t know much about him. We know very little about him. The\\n Government could have brought him into court. The Government could have\\n subpoenaed him. They could have found him. They could have brought you\\n this missing witness. We know very little about him.\\n\\n Government: I’m going to object, Your Honor.\\n\\n The Court: What’s your objection?\\n\\n Government: Both sides could have done that with subpoenas.\\n\\n Defense counsel: Of course both sides could have done it. But the point is it’s\\n the Government’s burden to prove its case, and Mr. Costa knows that.\\n\\n The Court: Okay. Go on. Continue.\\nId. at 407 n.8.\\n 16\\n\\f Case: 18-30813 Document: 00515077689 Page: 17 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\nGovernment’s burden were curative. See Stephens, 571 F.3d at 408. Further,\\nWaguespack fails to demonstrate that the remarks were sufficiently\\nprejudicial to warrant reversal because there was ample evidence at trial to\\nsupport the jury’s verdict.\\n 4. The Government did not violate Waguespack’s Brady\\n rights by not disclosing the grand jury transcripts.\\n Waguespack argues that the district court erred in denying his motion\\nto compel the production of the grand jury transcripts. Specifically,\\nWaguespack argues that the date change from the first indictment to the\\nsuperseding indictment triggered the Government’s Brady obligations, and he\\nwas entitled to receive a copy of the transcripts. According to Waguespack,\\n“[the] witness statements used in obtaining an indictment for the wrong date\\nshould have been available to [him] to determine what other defects may have\\nexisted in the Government’s case.”\\n “To establish a Brady violation, a defendant must show: (1) the evidence\\nat issue was favorable to the accused, either because it was exculpatory or\\nimpeaching; (2) the evidence was suppressed by the prosecution; and (3) the\\nevidence was material.” United States v. Cessa, 872 F.3d 267, 271 (5th Cir.\\n2017) (quotation omitted). “Evidence is material if there is a reasonable\\nprobability that, had the evidence been disclosed to the defense, the result of\\nthe proceeding would have been different.” Id. (quotation omitted). “A\\nreasonable probability of a different result is one in which the suppressed\\nevidence undermines confidence in the outcome of the trial.” Id. (quotation\\nomitted).\\n Waguespack has not shown that the grand jury transcripts were\\nmaterial. He provides no support to demonstrate “a reasonable probability\\nthat, had the [transcripts] been disclosed to the defense, the result of the\\nproceeding would have been different,” and that the nondisclosure of the grand\\n 17\\n\\f Case: 18-30813 Document: 00515077689 Page: 18 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\njury transcripts undermined confidence in the outcome of the trial. Cessa, 872\\nF.3d at 271. He simply asks for them to determine “what other defects may\\nhave existed in the Government’s case.” Accordingly, Waguespack’s challenge\\nas a Brady violation fails.\\n B. Waguespack’s Sentence Is Reasonable.\\n Waguespack appeals his sentence on two grounds. He argues that: (1)\\nthe district court improperly applied the obstruction of justice sentencing\\nenhancement; and (2) his sentence is substantively unreasonable. We find no\\nreversible error.\\n 1. Waguespack’s sentence is procedurally reasonable.\\n Waguespack argues that his sentence is procedurally unreasonable\\nbecause the district court erroneously applied an obstruction of justice\\nsentencing enhancement.\\n A district court may apply a two-level sentencing enhancement under\\nU.S.S.G. § 3C1.1 if:\\n (1) the defendant willfully obstructed or impeded, or attempted to\\n obstruct or impede, the administration of justice with respect to\\n the investigation, prosecution, or sentencing of the instant offense\\n of conviction, and (2) the obstructive conduct related to (A) the\\n defendant’s offense of conviction and any relevant conduct; or (B)\\n a closely related offense . . . .\\n\\n\\nU.S.S.G. § 3C1.1. “Obstructive conduct that occurred prior to the start of the\\ninvestigation of the instant offense of conviction may be covered by this\\nguideline if the conduct was purposefully calculated, and likely, to thwart the\\ninvestigation or prosecution of the offense of conviction.” Id. at Cmt. 1.\\n “A finding of obstruction of justice is a factual finding that is reviewed\\nfor clear error.” United States v. Zamora-Salazar, 860 F.3d 826, 836 (5th Cir.),\\ncert. denied, 138 S. Ct. 413 (2017). “A factual finding is not clearly erroneous\\nif it is plausible in light of the record as a whole.” Id. (quotation omitted).\\n 18\\n\\f Case: 18-30813 Document: 00515077689 Page: 19 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n The district court applied the obstruction of justice sentencing\\nenhancement after finding that Waguespack’s conduct was “purposefully\\ncalculated and thwarted the investigation or prosecution of the offense of\\nconviction.” The court found that, inter alia, the seized computer was actively\\nsearching for and downloading files with file names indicative of child\\npornography when law enforcement executed the search warrant, the\\ncomputer’s deleted file space contained file paths and file names indicative of\\nchild pornography, anti-forensic and encryption software were installed on the\\ncomputer, and the anti-forensic software had been programmed with a task\\nlist of file paths with names indicative of child pornography.\\n Waguespack argues that the district court erred in applying the\\nenhancement because “there was no evidence that [he] engaged in any conduct\\nduring the Government’s investigation of his activities or even that he was\\naware that an investigation was about to commence.” However, based on the\\nplain language of the statutory commentary, the enhancement may be applied\\nfor conduct that occurred prior to an investigation if the conduct was\\n“purposefully calculated, and likely, to thwart the investigation or prosecution\\nof the offense of conviction,” see § 3C1.1, Cmt. 1, which the district court\\nspecifically found in Waguespack’s case.\\n In light of the record as a whole and the plain language of the statutory\\ncommentary, Waguespack fails to demonstrate that the district court clearly\\nerred in applying the enhancement.\\n 2. Waguespack’s sentence is substantively reasonable.\\n Waguespack argues that, despite his sentence falling below the\\nGuidelines, his sentence is substantively unreasonable because the district\\ncourt failed to account for 18 U.S.C. § 3553(a)(6)).\\n We review the substantive reasonableness of a sentence under an abuse-\\nof-discretion standard. United States v. Halverson, 897 F.3d 645, 651 (5th Cir.\\n 19\\n\\f Case: 18-30813 Document: 00515077689 Page: 20 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\n2018). However, “[a]ppellate review of the substantive reasonableness of a\\nsentence is ‘highly deferential,’” and a within-Guidelines sentence is entitled\\nto the presumption of reasonableness. Hoffman, 901 F.3d at 554–55. The\\npresumption is rebutted “only if the appellant demonstrates that the sentence\\ndoes not account for a [18 U.S.C. § 3553(a)] factor that should receive\\nsignificant weight, gives significant weight to an irrelevant or improper factor,\\nor represents a clear error of judgment in balancing the sentencing factors.”\\nUnited States v. Martinez, 921 F.3d 452, 483 (5th Cir. 2019) (quotation\\nomitted).\\n Section 3553(a)(6) requires courts to consider “the need to avoid\\nunwarranted sentence disparities among defendants with similar records who\\nhave been found guilty of similar conduct.” “[W]here a sentence is within the\\nguidelines range, the unwarranted-disparity factor is not afforded significant\\nweight.” United States v. Martinez, 739 F. App’x 245, 247 (5th Cir. 2018)\\n(mem.) (citing United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011)).\\n Because Waguespack’s sentence was below the Guidelines, his sentence\\nis entitled to the presumption of reasonableness. His attempt to rebut the\\npresumption by arguing that the district court failed to account for § 3553(a)(6)\\nis unavailing because the unwarranted-disparity factor is not afforded\\nsignificant weight in his case. Even if it was, he fails to offer evidence that his\\nsentence represents an unwarranted disparity with similarly situated\\ndefendants. See Martinez, 739 F. App’x at 246–47. Waguespack includes\\nstatistics of sentences for child pornography offenses, but “[n]ational averages\\nof sentences that provide no details underlying the sentences are unreliable to\\ndetermine unwarranted disparity because they do not reflect the\\nenhancements or adjustments for the aggravating or mitigating factors that\\ndistinguish individual cases.” United States v. Willingham, 497 F.3d 541, 544\\n(5th Cir. 2007). The statistics that Waguespack provides “disregard individual\\n 20\\n\\f Case: 18-30813 Document: 00515077689 Page: 21 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30813\\ncircumstances and only reflect a broad grouping of sentences imposed on a\\nbroad grouping of criminal defendants; consequently, they are basically\\nmeaningless in considering whether a disparity with respect to a particular\\ndefendant is warranted or unwarranted.” Id. at 544–45.\\n The district court stated that it considered all the factors in fashioning\\nWaguespack’s sentence. Of note, the district court seemed to give significant\\nweight to the victim impact statements and Waguespack’s offense being a\\nserious offense which affected many people.\\n The district court did not abuse its discretion in sentencing Waguespack.\\nIII. CONCLUSION\\n For the foregoing reasons, the district court’s judgment is AFFIRMED.\\n\\n\\n\\n\\n 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3664,"cells":{"id":{"kind":"number","value":4648702,"string":"4,648,702"},"name":{"kind":"string","value":"Sylvia ZEPEDA, Plaintiff - Appellee v. FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendant - Appellant"},"name_abbreviation":{"kind":"string","value":"Sylvia Zepeda v. Federal Home Loan Mtge Corp."},"decision_date":{"kind":"string","value":"2019-08-15"},"docket_number":{"kind":"string","value":"18-20336"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"James, Haynes, Graves\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES C. HO, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-20336 Document: 00515077390 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-20336 August 15, 2019\\n Lyle W. Cayce\\nSYLVIA ZEPEDA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nFEDERAL HOME LOAN MORTGAGE CORPORATION,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\\nJAMES C. HO, Circuit Judge:\\n To protect homeowners, the Texas Constitution imposes a number of\\nrequirements before a lender may execute a deed of trust on a homestead to\\nsecure a loan. See generally TEX. CONST. art. XVI, § 50. At the same time,\\nTexas courts have on various occasions allowed lenders to invoke the doctrine\\nof equitable subrogation to obtain partial repayment of the loan, in the event\\nthat one of the requirements of the Texas Constitution is not met. See, e.g.,\\nBenchmark Bank v. Crowder, 919 S.W.2d 657, 662 (Tex. 1996). This case\\nrequires us to decide a dispute that falls at the intersection of these two\\ncompeting principles of Texas law, under circumstances not directly addressed\\nby a previous decision of the Texas Supreme Court, but that may recur in\\n\\f Case: 18-20336 Document: 00515077390 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\nfuture cases. We believe this dispute presents a pure question of law that\\n“should be answered by the only court that can issue a precedential ruling that\\nwill benefit all future litigants, whether in state or federal court.” JCB, Inc. v.\\nHorsburgh & Scott Co., 912 F.3d 238, 239 (5th Cir. 2018). Accordingly, we\\ncertify one question to the Supreme Court of Texas.\\n This case also presents a question of contractual subrogation which we\\ndo not certify to the Texas Supreme Court because, as we shall explain, Texas\\nlaw already provides a clear answer. As the district court correctly concluded,\\na secondary lender is not entitled to contractual subrogation without a valid\\ncontract.\\n I.\\n A.\\n The Texas Constitution states that “[n]o . . . lien on the homestead shall\\never be valid unless it secures a debt described by this section.” TEX. CONST.\\nart. XVI, § 50(c). Among other things, the homeowner and the lender must\\nsatisfy various procedural requirements to secure a loan that uses a homestead\\nas collateral. TEX. CONST. art. XVI, § 50(a)(6)(Q). At issue here is the\\nrequirement that both “the owner of the homestead and the lender [must] sign\\na written acknowledgment as to the fair market value of the homestead\\nproperty on the date the extension of credit is made.” TEX. CONST. art. XVI,\\n§ 50(a)(6)(Q)(ix) (emphasis added).\\n In the event the lender fails to comply, the borrower may notify the\\nlender of the mistake. TEX. CONST. art. XVI, § 50(a)(6)(Q)(x). If the lender does\\nnot correct the failure within sixty days, it may forfeit all principal and interest\\nof the loan. Id. “[A] lien securing a constitutionally noncompliant home-equity\\nloan is not valid before the defect is cured.” Wood v. HSBC Bank USA, N.A.,\\n505 S.W.3d 542, 547 (Tex. 2016).\\n\\n\\n 2\\n\\f Case: 18-20336 Document: 00515077390 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\n Even in the event of noncompliance, however, some lenders under\\ncertain circumstances may be able to recover on the loan under the doctrine of\\nequitable subrogation. LaSalle Bank Nat. Ass’n v. White, 246 S.W.3d 616, 620\\n(Tex. 2007). Subrogation provides that a “subsequent lender will succeed to\\nthe rights of prior lenders and become entitled to ‘all rights of the prior\\ncreditors in relation to the debt.’” Vogel v. Veneman, 276 F.3d 729, 735 (5th\\nCir. 2002) (quoting Means v. United Fid. Life Ins. Co., 550 S.W.2d 302, 308\\n(Tex. Civ. App.—El Paso 1977, writ ref’d n.r.e.)).\\n Generally, subrogation works as follows: A homeowner takes out a loan\\nusing the homestead as collateral. Later, the homeowner takes out a second\\nloan, and asks the second lender to pay the balance on the first loan. The\\nsecond lender is subrogated to the first lender’s rights under the original lien.\\nWhatever the terms of the original loan agreement, at a minimum, the second\\nlender stands in the shoes of the first lender. See RESTATEMENT (THIRD) OF\\nPROPERTY: MORTGAGES § 7.6 (AM. LAW INST. 1996). Without subrogation, the\\nrisk of forfeiture may discourage some lenders from refinancing homestead\\nproperty. LaSalle Bank, 246 S.W.3d at 620.\\n B.\\n In 2007, Sylvia Zepeda took out a purchase-money loan for $65,000 from\\nCIT Group/Consumer Finance, Inc., to buy her homestead. Zepeda secured the\\nloan using her homestead as collateral. Four years later, Zepeda took out a\\nsecond loan from Embrace Home Loans, Inc., for $56,500 to refinance her\\ncurrent debt. Embrace and Zepeda executed an agreement for an extension of\\ncredit under § 50 of the Texas Constitution, secured by a lien on her\\nhomestead. The agreement required Embrace to pay the balance of Zepeda’s\\nfirst lien with CIT and release the remainder of the funds to her. The\\nagreement contained an express subrogation provision, which provided that\\nEmbrace would be subrogated to all rights of any other holder of liens or debts\\n 3\\n\\f Case: 18-20336 Document: 00515077390 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\noutstanding before the agreement was executed. Upon Embrace’s payment of\\nthe balance of Zepeda’s debt to CIT, CIT released its claim on the homestead.\\n In 2015, Zepeda notified Embrace that the loan documents contained a\\nconstitutional deficiency—namely, that Embrace’s signature did not appear on\\nthe acknowledgement of fair market value. In response, Embrace did not sign\\nthe document, but instead sent a new copy of the acknowledgement to Zepeda,\\nwith no explanation for the lack of signature.\\n At some point after Zepeda originally notified Embrace of the deficiency,\\nFreddie Mac became Embrace’s successor-in-interest for Zepeda’s loan. At oral\\nargument, Freddie Mac admitted it received the notice to cure, but offered no\\nreason why it did not attempt to cure the problem. Nor did Freddie Mac\\nexplain why Embrace failed to sign the document.\\n Zepeda sued Freddie Mac to quiet title, claiming that Freddie Mac’s\\nfailure to comply with the Texas Constitution meant that Freddie Mac did not\\npossess a valid lien on her property. In its defense, Freddie Mac asserted that\\nit is both contractually and equitably subrogated to the original 2007 lien,\\nbecause its predecessor-in-interest paid off the remainder of that loan. Both\\nparties filed cross motions for summary judgment.\\n The district court granted summary judgment on Zepeda’s quiet-title\\nclaim and denied Freddie Mac’s claim for contractual and equitable\\nsubrogation. It found that Freddie Mac could not avail itself of contractual\\nsubrogation, because Freddie Mac did not have a valid contract. The district\\ncourt also denied equitable subrogation, because it found that Freddie Mac was\\nnegligent and therefore could not claim an equitable remedy.\\n\\n\\n\\n\\n 4\\n\\f Case: 18-20336 Document: 00515077390 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\n Freddie Mac appeals the denial of its claims for both contractual and\\nequitable subrogation. Neither party disputes the validity of the 2007 loan or\\nthe invalidity of the 2011 loan. 1\\n II.\\n We review a grant of summary judgment de novo. Smith v. Chrysler\\nGrp., L.L.C., 909 F.3d 744, 749 (5th Cir. 2018). “The court shall grant\\nsummary judgment if the movant shows that there is no genuine dispute as to\\nany material fact and the movant is entitled to judgment as a matter of law.”\\nFED. R. CIV. P. 56(a).\\n A.\\n Contractual subrogation arises from a valid deed of trust executed by\\nboth the borrower and lender. Benchmark Bank, 919 S.W.2d at 662. See also\\nTEX. CONST. art. XVI, § 50(c) (no “trust deed, or other lien on the homestead\\nshall ever be valid unless it secures a debt described by this section”). Freddie\\nMac failed to sign the acknowledgment of fair market value, as required under\\n§ 50(a)(6)(Q)(ix). Zepeda properly notified Freddie Mac of the failure to comply,\\nand Freddie Mac neither cured the deficiency, nor explained why it failed to do\\nso. Freddie Mac acknowledges that the loan document is invalid but argues\\nthat it is nevertheless contractually subrogated to the original lien terms. It\\nacknowledges that it forfeits any amount of the loan beyond what was used to\\npay off the original lien. We disagree.\\n If contractual subrogation requires a valid deed of trust, which requires\\nthe loan to comply with constitutional provisions, and the loan does not comply,\\nit follows that the deed of trust is invalid, and that precludes any contractual\\nsubrogation. Without a signature, Freddie Mac has no ability to enforce the\\n\\n\\n\\n 1 Because Freddie Mac is Embrace’s successor-in-interest and received notice of the\\ndeficiency, we shall refer to Freddie Mac instead of Embrace for the remainder of this opinion.\\n 5\\n\\f Case: 18-20336 Document: 00515077390 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\ncontract itself or its subrogation provision. Accordingly, we agree with the\\ndistrict court’s denial of Freddie Mac’s contractual subrogation claim.\\n B.\\n In contrast to Freddie Mac’s contractual subrogation claim, equitable\\nsubrogation occurs when a subsequent lender pays off an existing debt,\\nregardless of whether the subsequent loan was valid. Vogel, 276 F.3d at 735.\\n“The doctrine allows a third party who discharges a lien upon the property of\\nanother to step into the original lienholder’s shoes and assume the lienholder’s\\nright to the security interest against the debtor.” LaSalle Bank, 246 S.W.3d at\\n619. Equitable subrogation benefits lenders, to be sure, but the doctrine\\nbenefits homeowners as well. “Without equitable subrogation, lenders would\\nbe hesitant to refinance homestead property due to increased risk that they\\nmight be forced to forfeit their liens.” Id. at 620. “The general purpose of\\nequitable subrogation is to prevent unjust enrichment of the debtor” whose\\ndebt was repaid. Bank of America v. Babu, 340 S.W.3d 917, 926 (Tex. App.—\\nDallas 2011, no pet.).\\n Since at least 1890, the Supreme Court of Texas has applied equitable\\nsubrogation in the face of a constitutionally-invalid home-equity loan. Texas\\nLand & Loan Co. v. Blalock, 13 S.W. 12, 13–14 (Tex. 1890). See also, e.g.,\\nLaSalle Bank, 246 S.W.3d at 618 (applying equitable subrogation for a loan\\nimpermissibly secured on homestead property designated for agricultural use);\\nBenchmark Bank, 919 S.W.2d at 662 (upholding equitable subrogation for a\\nloan to pay taxes unconstitutionally secured by a lien on the homestead); Farm\\n& Home Sav. & Loan Ass’n v. Martin, 88 S.W.2d 459, 469–70 (Tex. 1935)\\n(upholding equitable subrogation for a valid mechanic’s lien when the second\\nloan was unconstitutional).\\n None of these cases, however, involve a constitutional defect that is\\nexclusively the fault of the lender, as is the case here. If the party seeking\\n 6\\n\\f Case: 18-20336 Document: 00515077390 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\nequitable subrogation could have satisfied the requirements of § 50(a)(6)(Q)(ix)\\nbut failed to do so, does that failure preclude it from invoking equitable\\nsubrogation? To our knowledge, the Supreme Court of Texas has never\\nanswered the question, and the parties cite no such decision. 2\\n III.\\n We hereby certify the following question of law to the Supreme Court of\\nTexas:\\n Is a lender entitled to equitable subrogation, where it failed to\\n correct a curable constitutional defect in the loan documents under\\n § 50 of the Texas Constitution?\\n We disclaim any intention or desire that the Supreme Court of Texas\\nconfine its reply to the precise form or scope of the questions certified.\\n\\n\\n\\n\\n A True Copy\\n Certified Aug 15, 2019\\n\\n\\n Clerk, U.S. Court of Appeals, Fifth Circuit\\n\\n\\n\\n\\n 2The only potential guidance comes from two appellate cases from Dallas, but no clear\\nrule emerges from those rulings. In Murray v. Cadle Co., 257 S.W.3d 291 (Tex. App.—Dallas\\n2008, pet. denied), the court found that the party seeking equitable subrogation was at fault\\nand denied equitable subrogation accordingly. Three years later, that same court found that,\\nalthough the bank was responsible for the non-compliant loan, it was still entitled to\\nequitable subrogation. Bank of America, 340 S.W.3d at 928. We have been unable to discern\\na governing rule of Texas law from these decisions.\\n 7\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4425955/\", \"author_raw\": \"JAMES C. HO, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JAMES"},"judge2":{"kind":"string","value":"HAYNES"},"judge3":{"kind":"string","value":"GRAVES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648702/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Sylvia ZEPEDA, Plaintiff - Appellee v. FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendant - Appellant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-20336 Document: 00515077390 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-20336 August 15, 2019\n Lyle W. Cayce\nSYLVIA ZEPEDA, Clerk\n\n\n Plaintiff - Appellee\n\nv.\n\nFEDERAL HOME LOAN MORTGAGE CORPORATION,\n\n Defendant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\nJAMES C. HO, Circuit Judge:\n To protect homeowners, the Texas Constitution imposes a number of\nrequirements before a lender may execute a deed of trust on a homestead to\nsecure a loan. See generally TEX. CONST. art. XVI, § 50. At the same time,\nTexas courts have on various occasions allowed lenders to invoke the doctrine\nof equitable subrogation to obtain partial repayment of the loan, in the event\nthat one of the requirements of the Texas Constitution is not met. See, e.g.,\nBenchmark Bank v. Crowder, 919 S.W.2d 657, 662 (Tex. 1996). This case\nrequires us to decide a dispute that falls at the intersection of these two\ncompeting principles of Texas law, under circumstances not directly addressed\nby a previous decision of the Texas Supreme Court, but that may recur in\n\f Case: 18-20336 Document: 00515077390 Page: 2 Date Filed: 08/15/2019\n\n\n\n No. 18-20336\nfuture cases. We believe this dispute presents a pure question of law that\n“should be answered by the only court that can issue a precedential ruling that\nwill benefit all future litigants, whether in state or federal court.” JCB, Inc. v.\nHorsburgh & Scott Co., 912 F.3d 238, 239 (5th Cir. 2018). Accordingly, we\ncertify one question to the Supreme Court of Texas.\n This case also presents a question of contractual subrogation which we\ndo not certify to the Texas Supreme Court because, as we shall explain, Texas\nlaw already provides a clear answer. As the district court correctly concluded,\na secondary lender is not entitled to contractual subrogation without a valid\ncontract.\n I.\n A.\n The Texas Constitution states that “[n]o . . . lien on the homestead shall\never be valid unless it secures a debt described by this section.” TEX. CONST.\nart. XVI, § 50(c). Among other things, the homeowner and the lender must\nsatisfy various procedural requirements to secure a loan that uses a homestead\nas collateral. TEX. CONST. art. XVI, § 50(a)(6)(Q). At issue here is the\nrequirement that both “the owner of the homestead and the lender [must] sign\na written acknowledgment as to the fair market value of the homestead\nproperty on the date the extension of credit is made.” TEX. CONST. art. XVI,\n§ 50(a)(6)(Q)(ix) (emphasis added).\n In the event the lender fails to comply, the borrower may notify the\nlender of the mistake. TEX. CONST. art. XVI, § 50(a)(6)(Q)(x). If the lender does\nnot correct the failure within sixty days, it may forfeit all principal and interest\nof the loan. Id. “[A] lien securing a constitutionally noncompliant home-equity\nloan is not valid before the defect is cured.” Wood v. HSBC Bank USA, N.A.,\n505 S.W.3d 542, 547 (Tex. 2016).\n\n\n 2\n\f Case: 18-20336 Document: 00515077390 Page: 3 Date Filed: 08/15/2019\n\n\n\n No. 18-20336\n Even in the event of noncompliance, however, some lenders under\ncertain circumstances may be able to recover on the loan under the doctrine of\nequitable subrogation. LaSalle Bank Nat. Ass’n v. White, 246 S.W.3d 616, 620\n(Tex. 2007). Subrogation provides that a “subsequent lender will succeed to\nthe rights of prior lenders and become entitled to ‘all rights of the prior\ncreditors in relation to the debt.’” Vogel v. Veneman, 276 F.3d 729, 735 (5th\nCir. 2002) (quoting Means v. United Fid. Life Ins. Co., 550 S.W.2d 302, 308\n(Tex. Civ. App.—El Paso 1977, writ ref’d n.r.e.)).\n Generally, subrogation works as follows: A homeowner takes out a loan\nusing the homestead as collateral. Later, the homeowner takes out a second\nloan, and asks the second lender to pay the balance on the first loan. The\nsecond lender is subrogated to the first lender’s rights under the original lien.\nWhatever the terms of the original loan agreement, at a minimum, the second\nlender stands in the shoes of the first lender. See RESTATEMENT (THIRD) OF\nPROPERTY: MORTGAGES § 7.6 (AM. LAW INST. 1996). Without subrogation, the\nrisk of forfeiture may discourage some lenders from refinancing homestead\nproperty. LaSalle Bank, 246 S.W.3d at 620.\n B.\n In 2007, Sylvia Zepeda took out a purchase-money loan for $65,000 from\nCIT Group/Consumer Finance, Inc., to buy her homestead. Zepeda secured the\nloan using her homestead as collateral. Four years later, Zepeda took out a\nsecond loan from Embrace Home Loans, Inc., for $56,500 to refinance her\ncurrent debt. Embrace and Zepeda executed an agreement for an extension of\ncredit under § 50 of the Texas Constitution, secured by a lien on her\nhomestead. The agreement required Embrace to pay the balance of Zepeda’s\nfirst lien with CIT and release the remainder of the funds to her. The\nagreement contained an express subrogation provision, which provided that\nEmbrace would be subrogated to all rights of any other holder of liens or debts\n 3\n\f Case: 18-20336 Document: 00515077390 Page: 4 Date Filed: 08/15/2019\n\n\n\n No. 18-20336\noutstanding before the agreement was executed. Upon Embrace’s payment of\nthe balance of Zepeda’s debt to CIT, CIT released its claim on the homestead.\n In 2015, Zepeda notified Embrace that the loan documents contained a\nconstitutional deficiency—namely, that Embrace’s signature did not appear on\nthe acknowledgement of fair market value. In response, Embrace did not sign\nthe document, but instead sent a new copy of the acknowledgement to Zepeda,\nwith no explanation for the lack of signature.\n At some point after Zepeda originally notified Embrace of the deficiency,\nFreddie Mac became Embrace’s successor-in-interest for Zepeda’s loan. At oral\nargument, Freddie Mac admitted it received the notice to cure, but offered no\nreason why it did not attempt to cure the problem. Nor did Freddie Mac\nexplain why Embrace failed to sign the document.\n Zepeda sued Freddie Mac to quiet title, claiming that Freddie Mac’s\nfailure to comply with the Texas Constitution meant that Freddie Mac did not\npossess a valid lien on her property. In its defense, Freddie Mac asserted that\nit is both contractually and equitably subrogated to the original 2007 lien,\nbecause its predecessor-in-interest paid off the remainder of that loan. Both\nparties filed cross motions for summary judgment.\n The district court granted summary judgment on Zepeda’s quiet-title\nclaim and denied Freddie Mac’s claim for contractual and equitable\nsubrogation. It found that Freddie Mac could not avail itself of contractual\nsubrogation, because Freddie Mac did not have a valid contract. The district\ncourt also denied equitable subrogation, because it found that Freddie Mac was\nnegligent and therefore could not claim an equitable remedy.\n\n\n\n\n 4\n\f Case: 18-20336 Document: 00515077390 Page: 5 Date Filed: 08/15/2019\n\n\n\n No. 18-20336\n Freddie Mac appeals the denial of its claims for both contractual and\nequitable subrogation. Neither party disputes the validity of the 2007 loan or\nthe invalidity of the 2011 loan. 1\n II.\n We review a grant of summary judgment de novo. Smith v. Chrysler\nGrp., L.L.C., 909 F.3d 744, 749 (5th Cir. 2018). “The court shall grant\nsummary judgment if the movant shows that there is no genuine dispute as to\nany material fact and the movant is entitled to judgment as a matter of law.”\nFED. R. CIV. P. 56(a).\n A.\n Contractual subrogation arises from a valid deed of trust executed by\nboth the borrower and lender. Benchmark Bank, 919 S.W.2d at 662. See also\nTEX. CONST. art. XVI, § 50(c) (no “trust deed, or other lien on the homestead\nshall ever be valid unless it secures a debt described by this section”). Freddie\nMac failed to sign the acknowledgment of fair market value, as required under\n§ 50(a)(6)(Q)(ix). Zepeda properly notified Freddie Mac of the failure to comply,\nand Freddie Mac neither cured the deficiency, nor explained why it failed to do\nso. Freddie Mac acknowledges that the loan document is invalid but argues\nthat it is nevertheless contractually subrogated to the original lien terms. It\nacknowledges that it forfeits any amount of the loan beyond what was used to\npay off the original lien. We disagree.\n If contractual subrogation requires a valid deed of trust, which requires\nthe loan to comply with constitutional provisions, and the loan does not comply,\nit follows that the deed of trust is invalid, and that precludes any contractual\nsubrogation. Without a signature, Freddie Mac has no ability to enforce the\n\n\n\n 1 Because Freddie Mac is Embrace’s successor-in-interest and received notice of the\ndeficiency, we shall refer to Freddie Mac instead of Embrace for the remainder of this opinion.\n 5\n\f Case: 18-20336 Document: 00515077390 Page: 6 Date Filed: 08/15/2019\n\n\n\n No. 18-20336\ncontract itself or its subrogation provision. Accordingly, we agree with the\ndistrict court’s denial of Freddie Mac’s contractual subrogation claim.\n B.\n In contrast to Freddie Mac’s contractual subrogation claim, equitable\nsubrogation occurs when a subsequent lender pays off an existing debt,\nregardless of whether the subsequent loan was valid. Vogel, 276 F.3d at 735.\n“The doctrine allows a third party who discharges a lien upon the property of\nanother to step into the original lienholder’s shoes and assume the lienholder’s\nright to the security interest against the debtor.” LaSalle Bank, 246 S.W.3d at\n619. Equitable subrogation benefits lenders, to be sure, but the doctrine\nbenefits homeowners as well. “Without equitable subrogation, lenders would\nbe hesitant to refinance homestead property due to increased risk that they\nmight be forced to forfeit their liens.” Id. at 620. “The general purpose of\nequitable subrogation is to prevent unjust enrichment of the debtor” whose\ndebt was repaid. Bank of America v. Babu, 340 S.W.3d 917, 926 (Tex. App.—\nDallas 2011, no pet.).\n Since at least 1890, the Supreme Court of Texas has applied equitable\nsubrogation in the face of a constitutionally-invalid home-equity loan. Texas\nLand & Loan Co. v. Blalock, 13 S.W. 12, 13–14 (Tex. 1890). See also, e.g.,\nLaSalle Bank, 246 S.W.3d at 618 (applying equitable subrogation for a loan\nimpermissibly secured on homestead property designated for agricultural use);\nBenchmark Bank, 919 S.W.2d at 662 (upholding equitable subrogation for a\nloan to pay taxes unconstitutionally secured by a lien on the homestead); Farm\n& Home Sav. & Loan Ass’n v. Martin, 88 S.W.2d 459, 469–70 (Tex. 1935)\n(upholding equitable subrogation for a valid mechanic’s lien when the second\nloan was unconstitutional).\n None of these cases, however, involve a constitutional defect that is\nexclusively the fault of the lender, as is the case here. If the party seeking\n 6\n\f Case: 18-20336 Document: 00515077390 Page: 7 Date Filed: 08/15/2019\n\n\n\n No. 18-20336\nequitable subrogation could have satisfied the requirements of § 50(a)(6)(Q)(ix)\nbut failed to do so, does that failure preclude it from invoking equitable\nsubrogation? To our knowledge, the Supreme Court of Texas has never\nanswered the question, and the parties cite no such decision. 2\n III.\n We hereby certify the following question of law to the Supreme Court of\nTexas:\n Is a lender entitled to equitable subrogation, where it failed to\n correct a curable constitutional defect in the loan documents under\n § 50 of the Texas Constitution?\n We disclaim any intention or desire that the Supreme Court of Texas\nconfine its reply to the precise form or scope of the questions certified.\n\n\n\n\n A True Copy\n Certified Aug 15, 2019\n\n\n Clerk, U.S. Court of Appeals, Fifth Circuit\n\n\n\n\n 2The only potential guidance comes from two appellate cases from Dallas, but no clear\nrule emerges from those rulings. In Murray v. Cadle Co., 257 S.W.3d 291 (Tex. App.—Dallas\n2008, pet. denied), the court found that the party seeking equitable subrogation was at fault\nand denied equitable subrogation accordingly. Three years later, that same court found that,\nalthough the bank was responsible for the non-compliant loan, it was still entitled to\nequitable subrogation. Bank of America, 340 S.W.3d at 928. We have been unable to discern\na governing rule of Texas law from these decisions.\n 7\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Sylvia ZEPEDA, Plaintiff - Appellee v. FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendant - Appellant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-20336 Document: 00515077390 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-20336 August 15, 2019\\n Lyle W. Cayce\\nSYLVIA ZEPEDA, Clerk\\n\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nFEDERAL HOME LOAN MORTGAGE CORPORATION,\\n\\n Defendant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\\nJAMES C. HO, Circuit Judge:\\n To protect homeowners, the Texas Constitution imposes a number of\\nrequirements before a lender may execute a deed of trust on a homestead to\\nsecure a loan. See generally TEX. CONST. art. XVI, § 50. At the same time,\\nTexas courts have on various occasions allowed lenders to invoke the doctrine\\nof equitable subrogation to obtain partial repayment of the loan, in the event\\nthat one of the requirements of the Texas Constitution is not met. See, e.g.,\\nBenchmark Bank v. Crowder, 919 S.W.2d 657, 662 (Tex. 1996). This case\\nrequires us to decide a dispute that falls at the intersection of these two\\ncompeting principles of Texas law, under circumstances not directly addressed\\nby a previous decision of the Texas Supreme Court, but that may recur in\\n\\f Case: 18-20336 Document: 00515077390 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\nfuture cases. We believe this dispute presents a pure question of law that\\n“should be answered by the only court that can issue a precedential ruling that\\nwill benefit all future litigants, whether in state or federal court.” JCB, Inc. v.\\nHorsburgh & Scott Co., 912 F.3d 238, 239 (5th Cir. 2018). Accordingly, we\\ncertify one question to the Supreme Court of Texas.\\n This case also presents a question of contractual subrogation which we\\ndo not certify to the Texas Supreme Court because, as we shall explain, Texas\\nlaw already provides a clear answer. As the district court correctly concluded,\\na secondary lender is not entitled to contractual subrogation without a valid\\ncontract.\\n I.\\n A.\\n The Texas Constitution states that “[n]o . . . lien on the homestead shall\\never be valid unless it secures a debt described by this section.” TEX. CONST.\\nart. XVI, § 50(c). Among other things, the homeowner and the lender must\\nsatisfy various procedural requirements to secure a loan that uses a homestead\\nas collateral. TEX. CONST. art. XVI, § 50(a)(6)(Q). At issue here is the\\nrequirement that both “the owner of the homestead and the lender [must] sign\\na written acknowledgment as to the fair market value of the homestead\\nproperty on the date the extension of credit is made.” TEX. CONST. art. XVI,\\n§ 50(a)(6)(Q)(ix) (emphasis added).\\n In the event the lender fails to comply, the borrower may notify the\\nlender of the mistake. TEX. CONST. art. XVI, § 50(a)(6)(Q)(x). If the lender does\\nnot correct the failure within sixty days, it may forfeit all principal and interest\\nof the loan. Id. “[A] lien securing a constitutionally noncompliant home-equity\\nloan is not valid before the defect is cured.” Wood v. HSBC Bank USA, N.A.,\\n505 S.W.3d 542, 547 (Tex. 2016).\\n\\n\\n 2\\n\\f Case: 18-20336 Document: 00515077390 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\n Even in the event of noncompliance, however, some lenders under\\ncertain circumstances may be able to recover on the loan under the doctrine of\\nequitable subrogation. LaSalle Bank Nat. Ass’n v. White, 246 S.W.3d 616, 620\\n(Tex. 2007). Subrogation provides that a “subsequent lender will succeed to\\nthe rights of prior lenders and become entitled to ‘all rights of the prior\\ncreditors in relation to the debt.’” Vogel v. Veneman, 276 F.3d 729, 735 (5th\\nCir. 2002) (quoting Means v. United Fid. Life Ins. Co., 550 S.W.2d 302, 308\\n(Tex. Civ. App.—El Paso 1977, writ ref’d n.r.e.)).\\n Generally, subrogation works as follows: A homeowner takes out a loan\\nusing the homestead as collateral. Later, the homeowner takes out a second\\nloan, and asks the second lender to pay the balance on the first loan. The\\nsecond lender is subrogated to the first lender’s rights under the original lien.\\nWhatever the terms of the original loan agreement, at a minimum, the second\\nlender stands in the shoes of the first lender. See RESTATEMENT (THIRD) OF\\nPROPERTY: MORTGAGES § 7.6 (AM. LAW INST. 1996). Without subrogation, the\\nrisk of forfeiture may discourage some lenders from refinancing homestead\\nproperty. LaSalle Bank, 246 S.W.3d at 620.\\n B.\\n In 2007, Sylvia Zepeda took out a purchase-money loan for $65,000 from\\nCIT Group/Consumer Finance, Inc., to buy her homestead. Zepeda secured the\\nloan using her homestead as collateral. Four years later, Zepeda took out a\\nsecond loan from Embrace Home Loans, Inc., for $56,500 to refinance her\\ncurrent debt. Embrace and Zepeda executed an agreement for an extension of\\ncredit under § 50 of the Texas Constitution, secured by a lien on her\\nhomestead. The agreement required Embrace to pay the balance of Zepeda’s\\nfirst lien with CIT and release the remainder of the funds to her. The\\nagreement contained an express subrogation provision, which provided that\\nEmbrace would be subrogated to all rights of any other holder of liens or debts\\n 3\\n\\f Case: 18-20336 Document: 00515077390 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\noutstanding before the agreement was executed. Upon Embrace’s payment of\\nthe balance of Zepeda’s debt to CIT, CIT released its claim on the homestead.\\n In 2015, Zepeda notified Embrace that the loan documents contained a\\nconstitutional deficiency—namely, that Embrace’s signature did not appear on\\nthe acknowledgement of fair market value. In response, Embrace did not sign\\nthe document, but instead sent a new copy of the acknowledgement to Zepeda,\\nwith no explanation for the lack of signature.\\n At some point after Zepeda originally notified Embrace of the deficiency,\\nFreddie Mac became Embrace’s successor-in-interest for Zepeda’s loan. At oral\\nargument, Freddie Mac admitted it received the notice to cure, but offered no\\nreason why it did not attempt to cure the problem. Nor did Freddie Mac\\nexplain why Embrace failed to sign the document.\\n Zepeda sued Freddie Mac to quiet title, claiming that Freddie Mac’s\\nfailure to comply with the Texas Constitution meant that Freddie Mac did not\\npossess a valid lien on her property. In its defense, Freddie Mac asserted that\\nit is both contractually and equitably subrogated to the original 2007 lien,\\nbecause its predecessor-in-interest paid off the remainder of that loan. Both\\nparties filed cross motions for summary judgment.\\n The district court granted summary judgment on Zepeda’s quiet-title\\nclaim and denied Freddie Mac’s claim for contractual and equitable\\nsubrogation. It found that Freddie Mac could not avail itself of contractual\\nsubrogation, because Freddie Mac did not have a valid contract. The district\\ncourt also denied equitable subrogation, because it found that Freddie Mac was\\nnegligent and therefore could not claim an equitable remedy.\\n\\n\\n\\n\\n 4\\n\\f Case: 18-20336 Document: 00515077390 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\n Freddie Mac appeals the denial of its claims for both contractual and\\nequitable subrogation. Neither party disputes the validity of the 2007 loan or\\nthe invalidity of the 2011 loan. 1\\n II.\\n We review a grant of summary judgment de novo. Smith v. Chrysler\\nGrp., L.L.C., 909 F.3d 744, 749 (5th Cir. 2018). “The court shall grant\\nsummary judgment if the movant shows that there is no genuine dispute as to\\nany material fact and the movant is entitled to judgment as a matter of law.”\\nFED. R. CIV. P. 56(a).\\n A.\\n Contractual subrogation arises from a valid deed of trust executed by\\nboth the borrower and lender. Benchmark Bank, 919 S.W.2d at 662. See also\\nTEX. CONST. art. XVI, § 50(c) (no “trust deed, or other lien on the homestead\\nshall ever be valid unless it secures a debt described by this section”). Freddie\\nMac failed to sign the acknowledgment of fair market value, as required under\\n§ 50(a)(6)(Q)(ix). Zepeda properly notified Freddie Mac of the failure to comply,\\nand Freddie Mac neither cured the deficiency, nor explained why it failed to do\\nso. Freddie Mac acknowledges that the loan document is invalid but argues\\nthat it is nevertheless contractually subrogated to the original lien terms. It\\nacknowledges that it forfeits any amount of the loan beyond what was used to\\npay off the original lien. We disagree.\\n If contractual subrogation requires a valid deed of trust, which requires\\nthe loan to comply with constitutional provisions, and the loan does not comply,\\nit follows that the deed of trust is invalid, and that precludes any contractual\\nsubrogation. Without a signature, Freddie Mac has no ability to enforce the\\n\\n\\n\\n 1 Because Freddie Mac is Embrace’s successor-in-interest and received notice of the\\ndeficiency, we shall refer to Freddie Mac instead of Embrace for the remainder of this opinion.\\n 5\\n\\f Case: 18-20336 Document: 00515077390 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\ncontract itself or its subrogation provision. Accordingly, we agree with the\\ndistrict court’s denial of Freddie Mac’s contractual subrogation claim.\\n B.\\n In contrast to Freddie Mac’s contractual subrogation claim, equitable\\nsubrogation occurs when a subsequent lender pays off an existing debt,\\nregardless of whether the subsequent loan was valid. Vogel, 276 F.3d at 735.\\n“The doctrine allows a third party who discharges a lien upon the property of\\nanother to step into the original lienholder’s shoes and assume the lienholder’s\\nright to the security interest against the debtor.” LaSalle Bank, 246 S.W.3d at\\n619. Equitable subrogation benefits lenders, to be sure, but the doctrine\\nbenefits homeowners as well. “Without equitable subrogation, lenders would\\nbe hesitant to refinance homestead property due to increased risk that they\\nmight be forced to forfeit their liens.” Id. at 620. “The general purpose of\\nequitable subrogation is to prevent unjust enrichment of the debtor” whose\\ndebt was repaid. Bank of America v. Babu, 340 S.W.3d 917, 926 (Tex. App.—\\nDallas 2011, no pet.).\\n Since at least 1890, the Supreme Court of Texas has applied equitable\\nsubrogation in the face of a constitutionally-invalid home-equity loan. Texas\\nLand & Loan Co. v. Blalock, 13 S.W. 12, 13–14 (Tex. 1890). See also, e.g.,\\nLaSalle Bank, 246 S.W.3d at 618 (applying equitable subrogation for a loan\\nimpermissibly secured on homestead property designated for agricultural use);\\nBenchmark Bank, 919 S.W.2d at 662 (upholding equitable subrogation for a\\nloan to pay taxes unconstitutionally secured by a lien on the homestead); Farm\\n& Home Sav. & Loan Ass’n v. Martin, 88 S.W.2d 459, 469–70 (Tex. 1935)\\n(upholding equitable subrogation for a valid mechanic’s lien when the second\\nloan was unconstitutional).\\n None of these cases, however, involve a constitutional defect that is\\nexclusively the fault of the lender, as is the case here. If the party seeking\\n 6\\n\\f Case: 18-20336 Document: 00515077390 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-20336\\nequitable subrogation could have satisfied the requirements of § 50(a)(6)(Q)(ix)\\nbut failed to do so, does that failure preclude it from invoking equitable\\nsubrogation? To our knowledge, the Supreme Court of Texas has never\\nanswered the question, and the parties cite no such decision. 2\\n III.\\n We hereby certify the following question of law to the Supreme Court of\\nTexas:\\n Is a lender entitled to equitable subrogation, where it failed to\\n correct a curable constitutional defect in the loan documents under\\n § 50 of the Texas Constitution?\\n We disclaim any intention or desire that the Supreme Court of Texas\\nconfine its reply to the precise form or scope of the questions certified.\\n\\n\\n\\n\\n A True Copy\\n Certified Aug 15, 2019\\n\\n\\n Clerk, U.S. Court of Appeals, Fifth Circuit\\n\\n\\n\\n\\n 2The only potential guidance comes from two appellate cases from Dallas, but no clear\\nrule emerges from those rulings. In Murray v. Cadle Co., 257 S.W.3d 291 (Tex. App.—Dallas\\n2008, pet. denied), the court found that the party seeking equitable subrogation was at fault\\nand denied equitable subrogation accordingly. Three years later, that same court found that,\\nalthough the bank was responsible for the non-compliant loan, it was still entitled to\\nequitable subrogation. Bank of America, 340 S.W.3d at 928. We have been unable to discern\\na governing rule of Texas law from these decisions.\\n 7\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3665,"cells":{"id":{"kind":"number","value":4648703,"string":"4,648,703"},"name":{"kind":"string","value":"Steven Kurt BAUGHMAN, Plaintiff - Appellant v. Ron HICKMAN; Doctor Marcus Guice, Medical Doctor; Licensed Vocational Nurse K. Johnson; Harris County, Texas; Deputy Durham; Licensed Vocational Nurse Jane Doe; Henri Madiko, Licensed Vocational Nurse; Deputy Richard Pruitt; David Solce, Doctor of Osteopathic Medicine; Medical Doctor M. Haque; Stephen Williams, Medical Doctor, Defendants - Appellees"},"name_abbreviation":{"kind":"string","value":"Steven Baughman v. Ron Hickman"},"decision_date":{"kind":"string","value":"2019-08-15"},"docket_number":{"kind":"string","value":"17-20679"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Higginbotham, Smith, Southwick\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-20679 Document: 00515077635 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-20679 FILED\\n August 15, 2019\\n Lyle W. Cayce\\nSTEVEN KURT BAUGHMAN, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nRON HICKMAN; DOCTOR MARCUS GUICE, Medical Doctor; LICENSED\\nVOCATIONAL NURSE K. JOHNSON; HARRIS COUNTY, TEXAS;\\nDEPUTY DURHAM; LICENSED VOCATIONAL NURSE JANE DOE;\\nHENRI MADIKO, Licensed Vocational Nurse; DEPUTY RICHARD PRUITT;\\nDAVID SOLCE, Doctor of Osteopathic Medicine; MEDICAL DOCTOR M.\\nHAQUE; STEPHEN WILLIAMS, Medical Doctor,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n A pretrial detainee sued Harris County, Texas and county jail officials\\nfor allegedly violating his constitutional rights by being deliberately indifferent\\nto his health, safety, and medical needs. He also sued a prison nurse for\\nretaliation and Harris County for negligence under Texas law. The district\\ncourt dismissed some of the claims on the pleadings and granted summary\\njudgment for the defendants on all others. We AFFIRM.\\n\\f Case: 17-20679 Document: 00515077635 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Steven Baughman was in custody of the Harris County, Texas Sheriff’s\\nOffice at the time the events relevant to this suit took place. On November 11,\\n2015, sheriff deputies transported him to a hospital from which he was\\ndischarged the next day. Deputy Sheriff Richard Pruitt picked Baughman up\\nat the hospital in a sheriff’s-office van to return him to jail. Baughman alleges\\nthat during this ride, Deputy Pruitt drove recklessly and caused Baughman,\\nwho was handcuffed, shackled, and not secured by a seatbelt, to be thrown out\\nof his seat and injured when the van lurched after hitting a pothole or speed\\nbump.\\n Baughman further claims that once back at the jail, he sought medical\\nattention but was rebuffed by the jail’s medical staff. Those responsible are\\nsaid to be Nurse Henri Madiko, unknown Nurse Jane Doe, Deputy Bryan\\nDurham, and Drs. Stephan Williams and M. Haque. Baughman also alleges\\nthat Drs. Williams and Haque, along with another sheriff-office doctor, David\\nSolce, generally denied him appropriate treatment.\\n Finally, Baughman claims that two and a half weeks after the van ride,\\nanother nurse, Kellie Johnson, refused to administer his medication and then\\nretaliated against him after he filed an administrative complaint against her.\\n Proceeding pro se, Baughman sued Deputy Pruitt, Nurse Madiko, Nurse\\nJane Doe, Deputy Durham, Dr. Williams, Dr. Solce, and Nurse Johnson in\\ntheir individual capacities. He also sued the jail’s interim Executive Director\\nfor Health Services Dr. Marcus Guice and the former sheriff of Harris County\\nRon Hickman for their supervisory roles. He brought his suit under 42 U.S.C.\\n§ 1983, claiming deliberate indifference to his health, safety, and medical\\nneeds. Baughman also asserted a retaliation claim against Nurse Johnson.\\nSeeking county liability, he further sued Harris County along with Dr. Guice\\nand Sheriff Hickman in their official capacities. Last, Baughman asserted a\\n 2\\n\\f Case: 17-20679 Document: 00515077635 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nnegligence claim under the Texas Tort Claims Act against Harris County.\\nBaughman requested a declaration that his rights had been violated along with\\ninjunctive relief and damages.\\n Deputy Pruitt, Nurse Madiko, Deputy Durham, Sheriff Hickman, Harris\\nCounty, Dr. Guice, and Nurse Johnson filed a joint motion for summary\\njudgment. Drs. Williams and Haque filed separate motions to dismiss under\\nFederal Rule of Civil Procedure 12(b)(6). Nurse Jane Doe and Doctor Solce\\nwere never served, but the district court evaluated the claims against them\\nunder the Prison Litigation Reform Act. The district court dismissed all of the\\nfederal claims and declined to exercise supplemental jurisdiction over the\\nTexas-law claim. The district court also dismissed Baughman’s motions for\\nappointment of counsel and a stay.\\n Baughman appealed, contending the district court erred when it\\ndismissed his claims and refused to appoint counsel. He also filed a motion for\\nappointment of counsel in this court. Drs. Williams and Haque filed a motion\\nin this court for leave to file a sur-reply or alternatively to strike portions of\\nBaughman’s reply brief. These motions have been carried with the case.\\n\\n\\n DISCUSSION\\n The district court dismissed some of the claims as failing to state a claim\\nand granted summary judgment on others. “A dismissal for failure to state a\\nclaim under Rule 12(b)(6) is reviewed ‘de novo, accepting all well-pleaded facts\\nas true and viewing those facts in the light most favorable to the plaintiff.’”\\nWhitaker v. Collier, 862 F.3d 490, 496-97 (5th Cir. 2017) (citation omitted). A\\nprovision of the Prison Litigation Reform Act incorporates similar analysis by\\nallowing dismissal if the suit is frivolous, malicious, or fails to state a claim.\\n28 U.S.C. § 1915(e)(2)(B)(i)-(ii). A separate provision requiring a district court\\n\\n\\n 3\\n\\f Case: 17-20679 Document: 00515077635 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nto screen prisoner cases before docketing them allows dismissal for similar\\nreasons. § 1915A(b)(1).\\n Our review of the grant of summary judgment is “de novo, viewing ‘all\\nfacts and evidence in the light most favorable to the non-moving party’” and\\nensuring “the movant shows that there is no genuine dispute as to any material\\nfact and the movant is entitled to judgment as a matter of law.” Burell v.\\nPrudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016) (citations omitted).\\n\\n\\nI. Deliberate indifference claims\\n Baughman relies on the Eighth and Fourteenth Amendments for his\\ndeliberate indifference claims. The Eighth Amendment ensures the safety of\\nconvicted prisoners while due process under the Fourteenth Amendment\\nprotects pretrial detainees. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th\\nCir. 1996) (en banc). In an affidavit Baughman filed in October 2017, he\\nexplained that he had been “awaiting trial since April 2, 2014.” The proper\\nanalysis of each category of claims is the same, as our “Fourteenth Amendment\\ncase law concerning pretrial detainees [is based] on the Supreme Court’s\\nEighth Amendment precedent concerning prisoners.” Garza v. City of Donna,\\n922 F.3d 626, 634 (5th Cir. 2019) (citing Hare, 74 F.3d at 643-44). The district\\ncourt analyzed the case using pretrial detention cases, and we will as well.\\n We classify a pretrial detention due process claim according to whether\\nit concerns a “condition of confinement” or an “episodic act or omission.”\\nOlabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999) (citation\\nomitted). As is clear from our earlier explanation of the facts underlying\\nBaughman’s suit, he is making claims based on episodic acts or omissions. For\\nsuch claims, “we employ different standards depending on whether the liability\\nof the individual defendant or the municipal defendant is at issue.” Id. Both\\nstandards require Baughman to “establish that the official(s) acted with\\n 4\\n\\f Case: 17-20679 Document: 00515077635 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nsubjective deliberate indifference.” Id. (citation omitted). Resolving some\\narguably conflicting articulations of the required mental state for subjective\\ndeliberate indifference, the en banc court stated this test: “(1) ‘the official must\\nboth be aware of facts from which the inference could be drawn that a\\nsubstantial risk of serious harm exists,’ and (2) ‘he must also draw the\\ninference.’” Williams v. Hampton, 797 F.3d 276, 281 (5th Cir. 2015) (en banc)\\n(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).\\n The “official conduct must be ‘wanton,’ which is defined to mean\\n‘reckless.’” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420 (5th\\nCir. 2017). Subjective deliberate indifference “is an extremely high standard\\nto meet.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.\\n2001). County as opposed to individual liability has the additional\\nrequirement that the “violation resulted from a [county] policy or custom\\nadopted and maintained with objective deliberate indifference.” Garza, 922\\nF.3d at 634 (citation omitted).\\n\\n\\n A. Van ride\\n Baughman claims that the van driver, Deputy Pruitt, “operated the van\\nrecklessly . . . rapidly accelerating, rapidly braking, weaving in and out of\\ntraffic and fail[ing] to keep a proper look-out” with Baughman in the back on\\na steel bench where he was handcuffed, shackled, and not protected by a\\nseatbelt. Baughman’s affidavit identifies the cause of his actual injury was the\\nvehicle’s hitting a pothole or speed bump because the driver failed to keep a\\nproper lookout. The “explosive impact from striking the road hazard injured\\n[P]laintiff’s back and catapulted [P]laintiff from the steel bench causing him to\\nstrike the ceiling of the security cage with the back of his head and neck, just\\nbefore throwing him forward against the front wall of the security divider, as\\nDeputy Pruitt hit the brakes.” Baughman in his complaint asserted that the\\n 5\\n\\f Case: 17-20679 Document: 00515077635 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\ndeputy had acknowledged that “other prisoners have been injured during\\ntransport, in a similar fashion.”\\n Baughman contends his case is similar to a precedent in which we\\nrecognized sufficient allegations of deliberate indifference to survive sua sponte\\ndismissal by the district court during the initial screening of a prisoner’s case.\\nRogers v. Boatright, 709 F.3d 403, 408 (5th Cir. 2013); see 28 U.S.C. § 1915A\\n(requiring review by the district court “as soon as practicable” of certain types\\nof civil complaints by prisoners, and dismissal if justified). In that case, a\\ncorrections officer “was driving the van recklessly, darting in and out of traffic\\nat high speeds while [the inmate] was caged in the back . . . [seated] on a\\nnarrow bench . . . shackled in leg irons and handcuffs . . . [with] no seatbelt;”\\nthe officer “was driving so fast that he had to brake hard to avoid hitting a\\nvehicle in front of him;” the inmate “was thrown head-first into the end of the\\ncage;” and one officer told another “that other inmates similarly had been\\ninjured.” Id. at 406, 409.\\n Baughman also discusses a case from another circuit, Brown v. Fortner,\\n518 F.3d 552 (8th Cir. 2008). There, three prison vans were traveling in a\\nconvoy and collided with each other after going 75 miles per hour in a 55 mile-\\nper-hour zone and “pass[ing] other vehicles at inappropriate times.” Id. at 556.\\nThe driver in the second van had not buckled the seatbelt of the plaintiff-\\ninmate, who was shackled, and he ignored pleas of multiple inmates to slow\\ndown, even “turn[ing] up the radio” after one request. Id. There was no\\nevidence, however, that the driver of the third van “was asked to slow down\\nand refused” or knew that the plaintiff-inmate in the second van was not in a\\nseatbelt. Id. at 560. Finding that knowledge was the “critical difference\\nbetween” the drivers of the two vans, the Eighth Circuit held there was enough\\nevidence at the summary judgment stage to show the driver of the second van\\nwas deliberately indifferent but not the driver of the third. Id. at 560-61.\\n 6\\n\\f Case: 17-20679 Document: 00515077635 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\n In the present case, Deputy Pruitt moved for summary judgment.\\nUnlike in our Rogers decision, which we held was improperly dismissed at the\\nscreening stage, Baughman had to demonstrate genuine issues of material fact\\nthat ultimately could allow a finding that Deputy Pruitt was subjectively –\\nactually – “aware of facts from which the inference could be drawn that a\\nsubstantial risk of serious harm exists” from the manner in which he was\\ndriving the van, and that the deputy must also have drawn that inference yet\\ncontinued to drive dangerously. Williams, 797 F.3d at 281 (citation omitted).\\n The evidence here on summary judgment included an Internal Affairs\\nInvestigative Report of March 1, 2016, a little more than three months after\\nthe November 12, 2015 van ride. That report concluded that the accusations\\nagainst Pruitt for his driving were “unfounded.” Baughman’s affidavit\\nacknowledged that he did not remember much about the event, as he had been\\ngiven morphine and hydrocodone before the van ride and felt “knocked out.”\\nAffidavits from Deputy Pruitt and from the other officer in the van, Deputy\\nBarnett, stated that neither officer could recall the specific ride. Medical\\nrecords from the treatment Baughman received the day of the incident\\n“indicated there was no evidence of injury and the overall findings [of his\\ncondition] were consistent with degenerative change.” He had many medical\\nproblems well before this incident, perhaps affected by his weighing over 420\\npounds.\\n Baughman’s evidence largely came from a sworn statement he gave in\\nDecember 2015. He states he was made to sit on a prison van bench that had\\nno seatbelts. Pruitt was not shown to have any responsibility for the fact there\\nwere no seatbelts. Baughman stated generally that a deputy “drove in a\\nreckless manner when he accelerated and decelerated rapidly.” He then stated\\nthat the van hit a speed bump or pothole, causing Baughman to be propelled\\n\\n\\n 7\\n\\f Case: 17-20679 Document: 00515077635 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nfrom his seat. The statement does not detail further how the driving was\\nreckless.\\n As to whether this is enough evidence of to create a fact issue of\\nrecklessness, we start with Deputy Pruitt’s affidavit which identifies the route\\nhe took that day as including time on Interstate Highway 10. Speeding up and\\nspeeding down on an expressway (or on any road), even if done “rapidly,” is not\\nevidence of recklessness, nor is the inability to avoid a pothole or speed bump.\\nAt most, the sworn statement from someone sitting in the back of a van claimed\\nthat the van was being driven with rapid speed changes (though not\\nnecessarily speeding), and when the van hit something in the road, the\\npassenger was thrown from his seat. This is not evidence of driving in a\\nmanner creating a substantial risk of serious harm.\\n Further, the driver’s subjective knowledge of reckless conduct is not\\naddressed at all in the sworn statement. Though Baughman’s complaint\\nstated that deputy Pruitt “acknowledged other prisoners have been injured” in\\nsimilar fashion, there is no mention of that in the sworn statement. Unlike in\\nBrown, there is no evidence that Baughman asked to have a seatbelt fastened\\nand Pruitt refused, or that he asked the deputy to slow down, or other evidence\\nthat would be some support for the deputy’s awareness.\\n We conclude that there is insufficient information about Pruitt’s driving\\nand no evidence to allow a finding of Pruitt’s actual knowledge that the manner\\nin which he was driving created a substantial risk of harm. Merely negligent\\ndriving by Deputy Pruitt would not support a violation of a constitutional right.\\nWith the evidentiary burden on him at the summary judgment stage,\\nBaughman has failed to marshal evidence in support of this claim.\\n\\n\\n\\n\\n 8\\n\\f Case: 17-20679 Document: 00515077635 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\n B. Post-van ride incident\\n After his return to the jail, Baughman fell asleep in his cell for several\\nhours. His complaint alleges that when he awoke later that evening, he was\\n“in pain so severe he could not get out of his bunk,” that he “was literally crying\\nin pain,” and that he “was not even able to roll onto his side due to the pain.”\\nBaughman alleges that after he got the attention of an officer, Nurse Madiko\\nand two trustees arrived and carried Baughman to the medical unit.\\n Once there, Baughman alleges he “was not seen by a physician, was not\\nquestioned by a physician, and was not given a physical examination or even\\ntouched.” He asserts Nurse Jane Doe simply “shouted from the nurses station\\nthat Dr. Haque had already written . . . a prescription,” commented that\\nBaughman also had a bottom bunk pass, and instructed security personnel to\\nremove Baughman. In response, Nurse Madiko and Deputy Durham ordered\\nBaughman to get off the stretcher. Baughman admits he then “cause[d] a\\ndisturbance” that drew the attention of a supervising officer. Baughman\\nalleges that officer then ordered medical staff to attend to Baughman, after\\nwhich Baughman was sent back to a hospital. Baughman’s complaint\\nemphasizes the “severe” and readily apparent nature of the pain he\\nexperienced before and while at the medical unit. The district court held\\nBaughman failed to state a claim against any of the defendants.\\n For an episodic act claim relying on an alleged denial or delay of medical\\ncare, Baughman can show deliberate indifference by demonstrating that an\\nofficial “refused to treat him, ignored his complaints, intentionally treated him\\nincorrectly, or engaged in any similar conduct that would clearly evince a\\nwanton disregard for any serious medical needs.” Perniciaro v. Lea, 901 F.3d\\n241, 258 (5th Cir. 2018) (citation omitted). “A disagreement about the\\nrecommended medical treatment is generally not sufficient to show deliberate\\nindifference, but the denial of recommended medical treatment is often\\n 9\\n\\f Case: 17-20679 Document: 00515077635 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nsufficient to show deliberate indifference.” Carlucci v. Chapa, 884 F.3d 534,\\n538 (5th Cir. 2018). We of course examine each defendant’s actions\\nindividually. See Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007).\\n The complaint recognizes Jane Doe knew that a “doctor had already\\nwritten [Baughman] a prescription for Tylenol and issued him a bottom bunk\\npass” and that such knowledge formed the basis for her order that Baughman\\nleave the medical area. That is, Baughman’s allegations demonstrate Jane\\nDoe was cognizant of his medical condition and treatment. Her purported\\norders for Baughman to leave the medical unit simply indicate a decision he\\ndid not need further medical attention. The agreement to this course of action\\nby Nurse Madiko, who the complaint alleges accompanied and observed\\nBaughman from his cell to the medical area, is similar. Baughman, in effect,\\ndisputes the nurses’ decision on the medical attention he should have received,\\nwhich is insufficient to state a claim. Carlucci, 884 F.3d at 538.\\n Regarding Doctors Williams and Haque, the complaint at most implies\\nthey were aware of Baughman’s arrival to the medical unit but did not attend\\nto him. This is not the same as alleging the doctors “‘refused to treat him,\\nignored his complaints, intentionally treated him incorrectly, or engaged in\\nany similar conduct that would clearly evince a wanton disregard for any\\nserious medical needs.’” Perniciaro, 901 F.3d at 258 (citation omitted). To the\\ncontrary, Baughman asserts nurses interacted with him and never notified a\\ndoctor that Baughman needed evaluation. Last, Baughman’s complaint about\\nDeputy Durham, a non-medically trained lay person, is that he observed\\nBaughman in pain yet deferred to the decisions of multiple medical personnel.\\nThis fails to state a claim against Deputy Durham. See Hester v. Donahoo, 47\\nF.3d 425 (5th Cir. 1995); 5TH CIR. R. 47.5.3.\\n\\n\\n\\n\\n 10\\n\\f Case: 17-20679 Document: 00515077635 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\n C. Subsequent medical treatment\\n Baughman also alleges Drs. Solce, Williams, and Haque generally\\n“denied [him] adequate pain medication” and “access to physical therapy.” The\\ndistrict court held Baughman failed to state a claim. We agree as these\\n“conclusory allegations . . . will not suffice to prevent a motion to dismiss.”\\nBeavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation\\nomitted).\\n Baughman further alleges that in a January 2016 meeting regarding his\\nback pain, Dr. Haque told him to not “expect to receive pain management . . .\\nor other services you could get if you weren’t in jail;” that “pain is all in the\\nmind and we must all learn to live with it;” and that the jail had “a limited\\nbudget and . . . so many prisoner[s’] problems . . . to deal with.” Baughman\\nalleges these statements “demonstrate a deliberately indifferent attitude and\\nintent to deny adequate medical care.” The district court dismissed these\\nallegations for failure to state a claim. Again, we agree. Factual assertions\\nconcerning Dr. Haque’s “attitude” and “intent” are not sufficient to allege he\\nactually “refused to treat [Baughman], ignored his complaints, intentionally\\ntreated him incorrectly, or engaged in similar conduct.” Alderson, 848 F.3d at\\n422 (citation omitted).\\n\\n\\n D. Incidents involving Nurse Johnson\\n Baughman alleges that about two and a half weeks after the van ride,\\nNurse Johnson visited his cell to administer pain medication and demanded\\nBaughman come to the door of the cell to receive it from her. Baughman\\nasserts his pain was so great he was unable to walk, and Johnson responded\\nthat if he “wanted his medication . . . he needed to crawl to the door to get” it.\\nAn officer allegedly offered to give Baughman his medication in his cell, but\\nJohnson refused to employ that option and left. Later, the complaint claims\\n 11\\n\\f Case: 17-20679 Document: 00515077635 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nthe officer escorted Baughman toward the jail’s medical unit to obtain his\\nmedicine. They encountered Johnson and her pill cart in the hall. Johnson\\nagain allegedly refused Baughman his medicine. The district court granted\\nsummary judgment in Johnson’s favor. Johnson has raised qualified\\nimmunity, placing the burden on Baughman to “demonstrate genuine issues of\\nmaterial fact” regarding whether a violation of clearly established law\\noccurred. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).\\n Johnson acknowledges she did not dispense Baughman’s medicine at his\\ncell nor later when she encountered him in the hall. She asserts, however, she\\n“did not feel comfortable entering [Baughman’s] cell” nor administering his\\nmedication while he was unrestrained in the hallway. She swore in an\\naffidavit that she “followed the Jail procedures” for “high security” in\\ndemanding Baughman receive the medication through an opening in his cell\\nand refusing to dispense it later when Baughman “was not properly restrained”\\nin the hall. She further swore Baughman could go to the medical unit to receive\\nhis medication, which Baughman’s allegations also imply.\\n There is evidence in the record that Johnson was disciplined after\\nBaughman filed a grievance over these incidents and that she was ordered to\\nreview the sheriff’s office policies on the administration of medications.\\nBaughman has not cited any evidence, though, that Johnson actually violated\\njail policy. Indeed, in her affidavit, which she swore out after the ordered\\nreview of the policies, she maintained that she had followed the appropriate\\njail procedures. Baughman has failed to demonstrate a genuine issue of\\nmaterial fact disputing that Johnson was hesitant to administer his medicine\\nbecause of security concerns and jail policy. Refusing to give Baughman his\\nmedicine under these circumstances, especially when he could otherwise\\nobtain it at the jail’s medical unit, does not “show deliberate indifference to\\nserious medical needs.” Alderson, 848 F.3d at 422.\\n 12\\n\\f Case: 17-20679 Document: 00515077635 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\n E. Official capacity defendants; Dr. Guice and Sheriff Hickman in\\n their individual capacities\\n Baughman contends the County, Dr. Guice, and Sheriff Hickman are\\nliable “in their Official Capacities and Individual Capacities for policies at the\\n[jail].” Because an underlying constitutional violation is required to impose\\nliability on the governmental body or supervisory liability on Dr. Guice and\\nSheriff Hickman as individuals, Baughman’s failure to demonstrate a\\nconstitutional violation regarding Deputy Pruitt, Nurse Jane Doe, Nurse\\nMadiko, Deputy Durham, and Drs. Solce, Williams, and Haque disposes of any\\npurported liability of Harris County, Dr. Guice, and Sheriff Hickman on those\\nclaims. See Brumfield v. Hollins, 551 F.3d 322, 327-29, 331-32 (5th Cir. 2008).\\n We resolved the claim against Nurse Johnson, however, by applying\\nqualified immunity and shifting the evidentiary burden to Baughman. The\\nbenefits of that doctrine’s application to Nurse Johnson do not extend to the\\nCounty. See Owen v. City of Independence, 445 U.S. 622, 635-38 (1980).\\nFurther, Dr. Guice’s and Sheriff Hickman’s actions in their individual\\ncapacities were not part of our prior analysis. We consider, then, if Baughman\\nhas sufficient evidence to support claims against the County and Dr. Guice and\\nSheriff Hickman individually. These claims, whether seeking official or\\nindividual liability, require Baughman to connect the existence of a policy,\\nwidespread and settled practice, or a failure to train to a constitutional\\nviolation. Brumfield, 551 F.3d at 327-29, 331-32.\\n Baughman hinges his claims on allegations the jail’s medical personnel\\nroutinely ignore prisoners’ complaints, summarily turn them away when they\\nseek medical attention, and refuse them pain treatment and therapy. Aside\\nfrom the previously mentioned comments by Dr. Haque, which are insufficient,\\nBaughman’s allegations are not supported by specific facts. He directs us to\\nreview a few hundred pages of district court filings. “Although we liberally\\n\\n 13\\n\\f Case: 17-20679 Document: 00515077635 Page: 14 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nconstrue briefs of pro se litigants and apply less stringent standards . . . pro se\\nparties must still brief the issues and reasonably comply with the standards of\\nRule 28.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). These claims\\nwere properly dismissed.\\n\\n\\nII. Retaliation claims\\n Baughman filed a grievance with the jail several days after the incidents\\ninvolving Nurse Johnson. He alleges that she then retaliated by ordering his\\nwheelchair be taken from his cell and by complaining to jail officials that\\nmedical personnel were improperly entering his cell to administer pain\\nmedication. The district court granted summary judgment to Johnson and the\\nCounty Defendants.\\n The First Amendment protects a detainee from retaliation for filing\\ngrievances against prison officials. See DeMarco v. Davis, 914 F.3d 383, 388\\n(5th Cir. 2019). To sustain such a claim, a detainee “must establish (1) a\\nspecific constitutional right, (2) the defendant’s intent to retaliate against\\n[him] for his . . . exercise of that right, (3) a retaliatory adverse act, and (4)\\ncausation.” Id. (citation omitted). Even if an act might be “motivated by\\nretaliatory intent,” it is not a constitutional violation if the effects of it “are so\\nde minimis that they would not deter the ordinary person from further exercise\\nof his rights.” Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). As in the\\ndeliberate indifference context, Baughman must tie a Section 1983 First\\nAmendment claim to a county policy or lack of training to trigger official\\nliability or individual liability for Dr. Guice and Sheriff Hickman. Brumfield,\\n551 F.3d at 331; Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).\\n Baughman does not even allege any harm from Johnson’s purported\\nretaliatory acts. The circumstances in which Nurse Johnson ordered his\\nwheelchair be taken are unclear. Nonetheless, there is no evidence as to the\\n 14\\n\\f Case: 17-20679 Document: 00515077635 Page: 15 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nresult of such an order. Examples of what is not said is whether another\\nwheelchair was not timely found or that Baughman had to maneuver through\\nthe jail without one. There is also no evidence that Johnson’s alleged reporting\\nof medical personnel who entered Baughman’s cell had any consequence for\\nBaughman.\\n\\n\\nIII. Supplemental jurisdiction; motions for counsel and leave to file sur-reply\\n With all federal claims dismissed and diversity lacking, the district court\\nrefused to exercise supplemental jurisdiction over Baughman’s state law claim.\\nSuch a refusal is generally not an abuse of discretion. Heggemeier v. Caldwell\\nCnty., 826 F.3d 861, 872 (5th Cir. 2016). In the absence of “exceptional\\ncircumstances,” it is not an abuse of the district court’s discretion not to appoint\\ncounsel. Naranjo v. Thompson, 809 F.3d 793, 801 (5th Cir. 2015). We also\\nexercise our discretion not to appoint counsel now. Cooper v. Sheriff, Lubbock\\nCnty., 929 F.2d 1078, 1084 (5th Cir. 1991).\\n AFFIRMED. All pending motions are DENIED.\\n\\n\\n\\n\\n 15\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4425956/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"SOUTHWICK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648703/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Steven Kurt BAUGHMAN, Plaintiff - Appellant v. Ron HICKMAN; Doctor Marcus Guice, Medical Doctor; Licensed Vocational Nurse K. Johnson; Harris County, Texas; Deputy Durham; Licensed Vocational Nurse Jane Doe; Henri Madiko, Licensed Vocational Nurse; Deputy Richard Pruitt; David Solce, Doctor of Osteopathic Medicine; Medical Doctor M. Haque; Stephen Williams, Medical Doctor, Defendants - Appellees\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-20679 Document: 00515077635 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-20679 FILED\n August 15, 2019\n Lyle W. Cayce\nSTEVEN KURT BAUGHMAN, Clerk\n\n Plaintiff - Appellant\n\nv.\n\nRON HICKMAN; DOCTOR MARCUS GUICE, Medical Doctor; LICENSED\nVOCATIONAL NURSE K. JOHNSON; HARRIS COUNTY, TEXAS;\nDEPUTY DURHAM; LICENSED VOCATIONAL NURSE JANE DOE;\nHENRI MADIKO, Licensed Vocational Nurse; DEPUTY RICHARD PRUITT;\nDAVID SOLCE, Doctor of Osteopathic Medicine; MEDICAL DOCTOR M.\nHAQUE; STEPHEN WILLIAMS, Medical Doctor,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n A pretrial detainee sued Harris County, Texas and county jail officials\nfor allegedly violating his constitutional rights by being deliberately indifferent\nto his health, safety, and medical needs. He also sued a prison nurse for\nretaliation and Harris County for negligence under Texas law. The district\ncourt dismissed some of the claims on the pleadings and granted summary\njudgment for the defendants on all others. We AFFIRM.\n\f Case: 17-20679 Document: 00515077635 Page: 2 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\n FACTUAL AND PROCEDURAL BACKGROUND\n Steven Baughman was in custody of the Harris County, Texas Sheriff’s\nOffice at the time the events relevant to this suit took place. On November 11,\n2015, sheriff deputies transported him to a hospital from which he was\ndischarged the next day. Deputy Sheriff Richard Pruitt picked Baughman up\nat the hospital in a sheriff’s-office van to return him to jail. Baughman alleges\nthat during this ride, Deputy Pruitt drove recklessly and caused Baughman,\nwho was handcuffed, shackled, and not secured by a seatbelt, to be thrown out\nof his seat and injured when the van lurched after hitting a pothole or speed\nbump.\n Baughman further claims that once back at the jail, he sought medical\nattention but was rebuffed by the jail’s medical staff. Those responsible are\nsaid to be Nurse Henri Madiko, unknown Nurse Jane Doe, Deputy Bryan\nDurham, and Drs. Stephan Williams and M. Haque. Baughman also alleges\nthat Drs. Williams and Haque, along with another sheriff-office doctor, David\nSolce, generally denied him appropriate treatment.\n Finally, Baughman claims that two and a half weeks after the van ride,\nanother nurse, Kellie Johnson, refused to administer his medication and then\nretaliated against him after he filed an administrative complaint against her.\n Proceeding pro se, Baughman sued Deputy Pruitt, Nurse Madiko, Nurse\nJane Doe, Deputy Durham, Dr. Williams, Dr. Solce, and Nurse Johnson in\ntheir individual capacities. He also sued the jail’s interim Executive Director\nfor Health Services Dr. Marcus Guice and the former sheriff of Harris County\nRon Hickman for their supervisory roles. He brought his suit under 42 U.S.C.\n§ 1983, claiming deliberate indifference to his health, safety, and medical\nneeds. Baughman also asserted a retaliation claim against Nurse Johnson.\nSeeking county liability, he further sued Harris County along with Dr. Guice\nand Sheriff Hickman in their official capacities. Last, Baughman asserted a\n 2\n\f Case: 17-20679 Document: 00515077635 Page: 3 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\nnegligence claim under the Texas Tort Claims Act against Harris County.\nBaughman requested a declaration that his rights had been violated along with\ninjunctive relief and damages.\n Deputy Pruitt, Nurse Madiko, Deputy Durham, Sheriff Hickman, Harris\nCounty, Dr. Guice, and Nurse Johnson filed a joint motion for summary\njudgment. Drs. Williams and Haque filed separate motions to dismiss under\nFederal Rule of Civil Procedure 12(b)(6). Nurse Jane Doe and Doctor Solce\nwere never served, but the district court evaluated the claims against them\nunder the Prison Litigation Reform Act. The district court dismissed all of the\nfederal claims and declined to exercise supplemental jurisdiction over the\nTexas-law claim. The district court also dismissed Baughman’s motions for\nappointment of counsel and a stay.\n Baughman appealed, contending the district court erred when it\ndismissed his claims and refused to appoint counsel. He also filed a motion for\nappointment of counsel in this court. Drs. Williams and Haque filed a motion\nin this court for leave to file a sur-reply or alternatively to strike portions of\nBaughman’s reply brief. These motions have been carried with the case.\n\n\n DISCUSSION\n The district court dismissed some of the claims as failing to state a claim\nand granted summary judgment on others. “A dismissal for failure to state a\nclaim under Rule 12(b)(6) is reviewed ‘de novo, accepting all well-pleaded facts\nas true and viewing those facts in the light most favorable to the plaintiff.’”\nWhitaker v. Collier, 862 F.3d 490, 496-97 (5th Cir. 2017) (citation omitted). A\nprovision of the Prison Litigation Reform Act incorporates similar analysis by\nallowing dismissal if the suit is frivolous, malicious, or fails to state a claim.\n28 U.S.C. § 1915(e)(2)(B)(i)-(ii). A separate provision requiring a district court\n\n\n 3\n\f Case: 17-20679 Document: 00515077635 Page: 4 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\nto screen prisoner cases before docketing them allows dismissal for similar\nreasons. § 1915A(b)(1).\n Our review of the grant of summary judgment is “de novo, viewing ‘all\nfacts and evidence in the light most favorable to the non-moving party’” and\nensuring “the movant shows that there is no genuine dispute as to any material\nfact and the movant is entitled to judgment as a matter of law.” Burell v.\nPrudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016) (citations omitted).\n\n\nI. Deliberate indifference claims\n Baughman relies on the Eighth and Fourteenth Amendments for his\ndeliberate indifference claims. The Eighth Amendment ensures the safety of\nconvicted prisoners while due process under the Fourteenth Amendment\nprotects pretrial detainees. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th\nCir. 1996) (en banc). In an affidavit Baughman filed in October 2017, he\nexplained that he had been “awaiting trial since April 2, 2014.” The proper\nanalysis of each category of claims is the same, as our “Fourteenth Amendment\ncase law concerning pretrial detainees [is based] on the Supreme Court’s\nEighth Amendment precedent concerning prisoners.” Garza v. City of Donna,\n922 F.3d 626, 634 (5th Cir. 2019) (citing Hare, 74 F.3d at 643-44). The district\ncourt analyzed the case using pretrial detention cases, and we will as well.\n We classify a pretrial detention due process claim according to whether\nit concerns a “condition of confinement” or an “episodic act or omission.”\nOlabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999) (citation\nomitted). As is clear from our earlier explanation of the facts underlying\nBaughman’s suit, he is making claims based on episodic acts or omissions. For\nsuch claims, “we employ different standards depending on whether the liability\nof the individual defendant or the municipal defendant is at issue.” Id. Both\nstandards require Baughman to “establish that the official(s) acted with\n 4\n\f Case: 17-20679 Document: 00515077635 Page: 5 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\nsubjective deliberate indifference.” Id. (citation omitted). Resolving some\narguably conflicting articulations of the required mental state for subjective\ndeliberate indifference, the en banc court stated this test: “(1) ‘the official must\nboth be aware of facts from which the inference could be drawn that a\nsubstantial risk of serious harm exists,’ and (2) ‘he must also draw the\ninference.’” Williams v. Hampton, 797 F.3d 276, 281 (5th Cir. 2015) (en banc)\n(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).\n The “official conduct must be ‘wanton,’ which is defined to mean\n‘reckless.’” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420 (5th\nCir. 2017). Subjective deliberate indifference “is an extremely high standard\nto meet.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.\n2001). County as opposed to individual liability has the additional\nrequirement that the “violation resulted from a [county] policy or custom\nadopted and maintained with objective deliberate indifference.” Garza, 922\nF.3d at 634 (citation omitted).\n\n\n A. Van ride\n Baughman claims that the van driver, Deputy Pruitt, “operated the van\nrecklessly . . . rapidly accelerating, rapidly braking, weaving in and out of\ntraffic and fail[ing] to keep a proper look-out” with Baughman in the back on\na steel bench where he was handcuffed, shackled, and not protected by a\nseatbelt. Baughman’s affidavit identifies the cause of his actual injury was the\nvehicle’s hitting a pothole or speed bump because the driver failed to keep a\nproper lookout. The “explosive impact from striking the road hazard injured\n[P]laintiff’s back and catapulted [P]laintiff from the steel bench causing him to\nstrike the ceiling of the security cage with the back of his head and neck, just\nbefore throwing him forward against the front wall of the security divider, as\nDeputy Pruitt hit the brakes.” Baughman in his complaint asserted that the\n 5\n\f Case: 17-20679 Document: 00515077635 Page: 6 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\ndeputy had acknowledged that “other prisoners have been injured during\ntransport, in a similar fashion.”\n Baughman contends his case is similar to a precedent in which we\nrecognized sufficient allegations of deliberate indifference to survive sua sponte\ndismissal by the district court during the initial screening of a prisoner’s case.\nRogers v. Boatright, 709 F.3d 403, 408 (5th Cir. 2013); see 28 U.S.C. § 1915A\n(requiring review by the district court “as soon as practicable” of certain types\nof civil complaints by prisoners, and dismissal if justified). In that case, a\ncorrections officer “was driving the van recklessly, darting in and out of traffic\nat high speeds while [the inmate] was caged in the back . . . [seated] on a\nnarrow bench . . . shackled in leg irons and handcuffs . . . [with] no seatbelt;”\nthe officer “was driving so fast that he had to brake hard to avoid hitting a\nvehicle in front of him;” the inmate “was thrown head-first into the end of the\ncage;” and one officer told another “that other inmates similarly had been\ninjured.” Id. at 406, 409.\n Baughman also discusses a case from another circuit, Brown v. Fortner,\n518 F.3d 552 (8th Cir. 2008). There, three prison vans were traveling in a\nconvoy and collided with each other after going 75 miles per hour in a 55 mile-\nper-hour zone and “pass[ing] other vehicles at inappropriate times.” Id. at 556.\nThe driver in the second van had not buckled the seatbelt of the plaintiff-\ninmate, who was shackled, and he ignored pleas of multiple inmates to slow\ndown, even “turn[ing] up the radio” after one request. Id. There was no\nevidence, however, that the driver of the third van “was asked to slow down\nand refused” or knew that the plaintiff-inmate in the second van was not in a\nseatbelt. Id. at 560. Finding that knowledge was the “critical difference\nbetween” the drivers of the two vans, the Eighth Circuit held there was enough\nevidence at the summary judgment stage to show the driver of the second van\nwas deliberately indifferent but not the driver of the third. Id. at 560-61.\n 6\n\f Case: 17-20679 Document: 00515077635 Page: 7 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\n In the present case, Deputy Pruitt moved for summary judgment.\nUnlike in our Rogers decision, which we held was improperly dismissed at the\nscreening stage, Baughman had to demonstrate genuine issues of material fact\nthat ultimately could allow a finding that Deputy Pruitt was subjectively –\nactually – “aware of facts from which the inference could be drawn that a\nsubstantial risk of serious harm exists” from the manner in which he was\ndriving the van, and that the deputy must also have drawn that inference yet\ncontinued to drive dangerously. Williams, 797 F.3d at 281 (citation omitted).\n The evidence here on summary judgment included an Internal Affairs\nInvestigative Report of March 1, 2016, a little more than three months after\nthe November 12, 2015 van ride. That report concluded that the accusations\nagainst Pruitt for his driving were “unfounded.” Baughman’s affidavit\nacknowledged that he did not remember much about the event, as he had been\ngiven morphine and hydrocodone before the van ride and felt “knocked out.”\nAffidavits from Deputy Pruitt and from the other officer in the van, Deputy\nBarnett, stated that neither officer could recall the specific ride. Medical\nrecords from the treatment Baughman received the day of the incident\n“indicated there was no evidence of injury and the overall findings [of his\ncondition] were consistent with degenerative change.” He had many medical\nproblems well before this incident, perhaps affected by his weighing over 420\npounds.\n Baughman’s evidence largely came from a sworn statement he gave in\nDecember 2015. He states he was made to sit on a prison van bench that had\nno seatbelts. Pruitt was not shown to have any responsibility for the fact there\nwere no seatbelts. Baughman stated generally that a deputy “drove in a\nreckless manner when he accelerated and decelerated rapidly.” He then stated\nthat the van hit a speed bump or pothole, causing Baughman to be propelled\n\n\n 7\n\f Case: 17-20679 Document: 00515077635 Page: 8 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\nfrom his seat. The statement does not detail further how the driving was\nreckless.\n As to whether this is enough evidence of to create a fact issue of\nrecklessness, we start with Deputy Pruitt’s affidavit which identifies the route\nhe took that day as including time on Interstate Highway 10. Speeding up and\nspeeding down on an expressway (or on any road), even if done “rapidly,” is not\nevidence of recklessness, nor is the inability to avoid a pothole or speed bump.\nAt most, the sworn statement from someone sitting in the back of a van claimed\nthat the van was being driven with rapid speed changes (though not\nnecessarily speeding), and when the van hit something in the road, the\npassenger was thrown from his seat. This is not evidence of driving in a\nmanner creating a substantial risk of serious harm.\n Further, the driver’s subjective knowledge of reckless conduct is not\naddressed at all in the sworn statement. Though Baughman’s complaint\nstated that deputy Pruitt “acknowledged other prisoners have been injured” in\nsimilar fashion, there is no mention of that in the sworn statement. Unlike in\nBrown, there is no evidence that Baughman asked to have a seatbelt fastened\nand Pruitt refused, or that he asked the deputy to slow down, or other evidence\nthat would be some support for the deputy’s awareness.\n We conclude that there is insufficient information about Pruitt’s driving\nand no evidence to allow a finding of Pruitt’s actual knowledge that the manner\nin which he was driving created a substantial risk of harm. Merely negligent\ndriving by Deputy Pruitt would not support a violation of a constitutional right.\nWith the evidentiary burden on him at the summary judgment stage,\nBaughman has failed to marshal evidence in support of this claim.\n\n\n\n\n 8\n\f Case: 17-20679 Document: 00515077635 Page: 9 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\n B. Post-van ride incident\n After his return to the jail, Baughman fell asleep in his cell for several\nhours. His complaint alleges that when he awoke later that evening, he was\n“in pain so severe he could not get out of his bunk,” that he “was literally crying\nin pain,” and that he “was not even able to roll onto his side due to the pain.”\nBaughman alleges that after he got the attention of an officer, Nurse Madiko\nand two trustees arrived and carried Baughman to the medical unit.\n Once there, Baughman alleges he “was not seen by a physician, was not\nquestioned by a physician, and was not given a physical examination or even\ntouched.” He asserts Nurse Jane Doe simply “shouted from the nurses station\nthat Dr. Haque had already written . . . a prescription,” commented that\nBaughman also had a bottom bunk pass, and instructed security personnel to\nremove Baughman. In response, Nurse Madiko and Deputy Durham ordered\nBaughman to get off the stretcher. Baughman admits he then “cause[d] a\ndisturbance” that drew the attention of a supervising officer. Baughman\nalleges that officer then ordered medical staff to attend to Baughman, after\nwhich Baughman was sent back to a hospital. Baughman’s complaint\nemphasizes the “severe” and readily apparent nature of the pain he\nexperienced before and while at the medical unit. The district court held\nBaughman failed to state a claim against any of the defendants.\n For an episodic act claim relying on an alleged denial or delay of medical\ncare, Baughman can show deliberate indifference by demonstrating that an\nofficial “refused to treat him, ignored his complaints, intentionally treated him\nincorrectly, or engaged in any similar conduct that would clearly evince a\nwanton disregard for any serious medical needs.” Perniciaro v. Lea, 901 F.3d\n241, 258 (5th Cir. 2018) (citation omitted). “A disagreement about the\nrecommended medical treatment is generally not sufficient to show deliberate\nindifference, but the denial of recommended medical treatment is often\n 9\n\f Case: 17-20679 Document: 00515077635 Page: 10 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\nsufficient to show deliberate indifference.” Carlucci v. Chapa, 884 F.3d 534,\n538 (5th Cir. 2018). We of course examine each defendant’s actions\nindividually. See Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007).\n The complaint recognizes Jane Doe knew that a “doctor had already\nwritten [Baughman] a prescription for Tylenol and issued him a bottom bunk\npass” and that such knowledge formed the basis for her order that Baughman\nleave the medical area. That is, Baughman’s allegations demonstrate Jane\nDoe was cognizant of his medical condition and treatment. Her purported\norders for Baughman to leave the medical unit simply indicate a decision he\ndid not need further medical attention. The agreement to this course of action\nby Nurse Madiko, who the complaint alleges accompanied and observed\nBaughman from his cell to the medical area, is similar. Baughman, in effect,\ndisputes the nurses’ decision on the medical attention he should have received,\nwhich is insufficient to state a claim. Carlucci, 884 F.3d at 538.\n Regarding Doctors Williams and Haque, the complaint at most implies\nthey were aware of Baughman’s arrival to the medical unit but did not attend\nto him. This is not the same as alleging the doctors “‘refused to treat him,\nignored his complaints, intentionally treated him incorrectly, or engaged in\nany similar conduct that would clearly evince a wanton disregard for any\nserious medical needs.’” Perniciaro, 901 F.3d at 258 (citation omitted). To the\ncontrary, Baughman asserts nurses interacted with him and never notified a\ndoctor that Baughman needed evaluation. Last, Baughman’s complaint about\nDeputy Durham, a non-medically trained lay person, is that he observed\nBaughman in pain yet deferred to the decisions of multiple medical personnel.\nThis fails to state a claim against Deputy Durham. See Hester v. Donahoo, 47\nF.3d 425 (5th Cir. 1995); 5TH CIR. R. 47.5.3.\n\n\n\n\n 10\n\f Case: 17-20679 Document: 00515077635 Page: 11 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\n C. Subsequent medical treatment\n Baughman also alleges Drs. Solce, Williams, and Haque generally\n“denied [him] adequate pain medication” and “access to physical therapy.” The\ndistrict court held Baughman failed to state a claim. We agree as these\n“conclusory allegations . . . will not suffice to prevent a motion to dismiss.”\nBeavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation\nomitted).\n Baughman further alleges that in a January 2016 meeting regarding his\nback pain, Dr. Haque told him to not “expect to receive pain management . . .\nor other services you could get if you weren’t in jail;” that “pain is all in the\nmind and we must all learn to live with it;” and that the jail had “a limited\nbudget and . . . so many prisoner[s’] problems . . . to deal with.” Baughman\nalleges these statements “demonstrate a deliberately indifferent attitude and\nintent to deny adequate medical care.” The district court dismissed these\nallegations for failure to state a claim. Again, we agree. Factual assertions\nconcerning Dr. Haque’s “attitude” and “intent” are not sufficient to allege he\nactually “refused to treat [Baughman], ignored his complaints, intentionally\ntreated him incorrectly, or engaged in similar conduct.” Alderson, 848 F.3d at\n422 (citation omitted).\n\n\n D. Incidents involving Nurse Johnson\n Baughman alleges that about two and a half weeks after the van ride,\nNurse Johnson visited his cell to administer pain medication and demanded\nBaughman come to the door of the cell to receive it from her. Baughman\nasserts his pain was so great he was unable to walk, and Johnson responded\nthat if he “wanted his medication . . . he needed to crawl to the door to get” it.\nAn officer allegedly offered to give Baughman his medication in his cell, but\nJohnson refused to employ that option and left. Later, the complaint claims\n 11\n\f Case: 17-20679 Document: 00515077635 Page: 12 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\nthe officer escorted Baughman toward the jail’s medical unit to obtain his\nmedicine. They encountered Johnson and her pill cart in the hall. Johnson\nagain allegedly refused Baughman his medicine. The district court granted\nsummary judgment in Johnson’s favor. Johnson has raised qualified\nimmunity, placing the burden on Baughman to “demonstrate genuine issues of\nmaterial fact” regarding whether a violation of clearly established law\noccurred. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).\n Johnson acknowledges she did not dispense Baughman’s medicine at his\ncell nor later when she encountered him in the hall. She asserts, however, she\n“did not feel comfortable entering [Baughman’s] cell” nor administering his\nmedication while he was unrestrained in the hallway. She swore in an\naffidavit that she “followed the Jail procedures” for “high security” in\ndemanding Baughman receive the medication through an opening in his cell\nand refusing to dispense it later when Baughman “was not properly restrained”\nin the hall. She further swore Baughman could go to the medical unit to receive\nhis medication, which Baughman’s allegations also imply.\n There is evidence in the record that Johnson was disciplined after\nBaughman filed a grievance over these incidents and that she was ordered to\nreview the sheriff’s office policies on the administration of medications.\nBaughman has not cited any evidence, though, that Johnson actually violated\njail policy. Indeed, in her affidavit, which she swore out after the ordered\nreview of the policies, she maintained that she had followed the appropriate\njail procedures. Baughman has failed to demonstrate a genuine issue of\nmaterial fact disputing that Johnson was hesitant to administer his medicine\nbecause of security concerns and jail policy. Refusing to give Baughman his\nmedicine under these circumstances, especially when he could otherwise\nobtain it at the jail’s medical unit, does not “show deliberate indifference to\nserious medical needs.” Alderson, 848 F.3d at 422.\n 12\n\f Case: 17-20679 Document: 00515077635 Page: 13 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\n E. Official capacity defendants; Dr. Guice and Sheriff Hickman in\n their individual capacities\n Baughman contends the County, Dr. Guice, and Sheriff Hickman are\nliable “in their Official Capacities and Individual Capacities for policies at the\n[jail].” Because an underlying constitutional violation is required to impose\nliability on the governmental body or supervisory liability on Dr. Guice and\nSheriff Hickman as individuals, Baughman’s failure to demonstrate a\nconstitutional violation regarding Deputy Pruitt, Nurse Jane Doe, Nurse\nMadiko, Deputy Durham, and Drs. Solce, Williams, and Haque disposes of any\npurported liability of Harris County, Dr. Guice, and Sheriff Hickman on those\nclaims. See Brumfield v. Hollins, 551 F.3d 322, 327-29, 331-32 (5th Cir. 2008).\n We resolved the claim against Nurse Johnson, however, by applying\nqualified immunity and shifting the evidentiary burden to Baughman. The\nbenefits of that doctrine’s application to Nurse Johnson do not extend to the\nCounty. See Owen v. City of Independence, 445 U.S. 622, 635-38 (1980).\nFurther, Dr. Guice’s and Sheriff Hickman’s actions in their individual\ncapacities were not part of our prior analysis. We consider, then, if Baughman\nhas sufficient evidence to support claims against the County and Dr. Guice and\nSheriff Hickman individually. These claims, whether seeking official or\nindividual liability, require Baughman to connect the existence of a policy,\nwidespread and settled practice, or a failure to train to a constitutional\nviolation. Brumfield, 551 F.3d at 327-29, 331-32.\n Baughman hinges his claims on allegations the jail’s medical personnel\nroutinely ignore prisoners’ complaints, summarily turn them away when they\nseek medical attention, and refuse them pain treatment and therapy. Aside\nfrom the previously mentioned comments by Dr. Haque, which are insufficient,\nBaughman’s allegations are not supported by specific facts. He directs us to\nreview a few hundred pages of district court filings. “Although we liberally\n\n 13\n\f Case: 17-20679 Document: 00515077635 Page: 14 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\nconstrue briefs of pro se litigants and apply less stringent standards . . . pro se\nparties must still brief the issues and reasonably comply with the standards of\nRule 28.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). These claims\nwere properly dismissed.\n\n\nII. Retaliation claims\n Baughman filed a grievance with the jail several days after the incidents\ninvolving Nurse Johnson. He alleges that she then retaliated by ordering his\nwheelchair be taken from his cell and by complaining to jail officials that\nmedical personnel were improperly entering his cell to administer pain\nmedication. The district court granted summary judgment to Johnson and the\nCounty Defendants.\n The First Amendment protects a detainee from retaliation for filing\ngrievances against prison officials. See DeMarco v. Davis, 914 F.3d 383, 388\n(5th Cir. 2019). To sustain such a claim, a detainee “must establish (1) a\nspecific constitutional right, (2) the defendant’s intent to retaliate against\n[him] for his . . . exercise of that right, (3) a retaliatory adverse act, and (4)\ncausation.” Id. (citation omitted). Even if an act might be “motivated by\nretaliatory intent,” it is not a constitutional violation if the effects of it “are so\nde minimis that they would not deter the ordinary person from further exercise\nof his rights.” Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). As in the\ndeliberate indifference context, Baughman must tie a Section 1983 First\nAmendment claim to a county policy or lack of training to trigger official\nliability or individual liability for Dr. Guice and Sheriff Hickman. Brumfield,\n551 F.3d at 331; Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).\n Baughman does not even allege any harm from Johnson’s purported\nretaliatory acts. The circumstances in which Nurse Johnson ordered his\nwheelchair be taken are unclear. Nonetheless, there is no evidence as to the\n 14\n\f Case: 17-20679 Document: 00515077635 Page: 15 Date Filed: 08/15/2019\n\n\n\n No. 17-20679\nresult of such an order. Examples of what is not said is whether another\nwheelchair was not timely found or that Baughman had to maneuver through\nthe jail without one. There is also no evidence that Johnson’s alleged reporting\nof medical personnel who entered Baughman’s cell had any consequence for\nBaughman.\n\n\nIII. Supplemental jurisdiction; motions for counsel and leave to file sur-reply\n With all federal claims dismissed and diversity lacking, the district court\nrefused to exercise supplemental jurisdiction over Baughman’s state law claim.\nSuch a refusal is generally not an abuse of discretion. Heggemeier v. Caldwell\nCnty., 826 F.3d 861, 872 (5th Cir. 2016). In the absence of “exceptional\ncircumstances,” it is not an abuse of the district court’s discretion not to appoint\ncounsel. Naranjo v. Thompson, 809 F.3d 793, 801 (5th Cir. 2015). We also\nexercise our discretion not to appoint counsel now. Cooper v. Sheriff, Lubbock\nCnty., 929 F.2d 1078, 1084 (5th Cir. 1991).\n AFFIRMED. All pending motions are DENIED.\n\n\n\n\n 15\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Steven Kurt BAUGHMAN, Plaintiff - Appellant v. Ron HICKMAN; Doctor Marcus Guice, Medical Doctor; Licensed Vocational Nurse K. Johnson; Harris County, Texas; Deputy Durham; Licensed Vocational Nurse Jane Doe; Henri Madiko, Licensed Vocational Nurse; Deputy Richard Pruitt; David Solce, Doctor of Osteopathic Medicine; Medical Doctor M. Haque; Stephen Williams, Medical Doctor, Defendants - Appellees\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-20679 Document: 00515077635 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-20679 FILED\\n August 15, 2019\\n Lyle W. Cayce\\nSTEVEN KURT BAUGHMAN, Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nRON HICKMAN; DOCTOR MARCUS GUICE, Medical Doctor; LICENSED\\nVOCATIONAL NURSE K. JOHNSON; HARRIS COUNTY, TEXAS;\\nDEPUTY DURHAM; LICENSED VOCATIONAL NURSE JANE DOE;\\nHENRI MADIKO, Licensed Vocational Nurse; DEPUTY RICHARD PRUITT;\\nDAVID SOLCE, Doctor of Osteopathic Medicine; MEDICAL DOCTOR M.\\nHAQUE; STEPHEN WILLIAMS, Medical Doctor,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n A pretrial detainee sued Harris County, Texas and county jail officials\\nfor allegedly violating his constitutional rights by being deliberately indifferent\\nto his health, safety, and medical needs. He also sued a prison nurse for\\nretaliation and Harris County for negligence under Texas law. The district\\ncourt dismissed some of the claims on the pleadings and granted summary\\njudgment for the defendants on all others. We AFFIRM.\\n\\f Case: 17-20679 Document: 00515077635 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Steven Baughman was in custody of the Harris County, Texas Sheriff’s\\nOffice at the time the events relevant to this suit took place. On November 11,\\n2015, sheriff deputies transported him to a hospital from which he was\\ndischarged the next day. Deputy Sheriff Richard Pruitt picked Baughman up\\nat the hospital in a sheriff’s-office van to return him to jail. Baughman alleges\\nthat during this ride, Deputy Pruitt drove recklessly and caused Baughman,\\nwho was handcuffed, shackled, and not secured by a seatbelt, to be thrown out\\nof his seat and injured when the van lurched after hitting a pothole or speed\\nbump.\\n Baughman further claims that once back at the jail, he sought medical\\nattention but was rebuffed by the jail’s medical staff. Those responsible are\\nsaid to be Nurse Henri Madiko, unknown Nurse Jane Doe, Deputy Bryan\\nDurham, and Drs. Stephan Williams and M. Haque. Baughman also alleges\\nthat Drs. Williams and Haque, along with another sheriff-office doctor, David\\nSolce, generally denied him appropriate treatment.\\n Finally, Baughman claims that two and a half weeks after the van ride,\\nanother nurse, Kellie Johnson, refused to administer his medication and then\\nretaliated against him after he filed an administrative complaint against her.\\n Proceeding pro se, Baughman sued Deputy Pruitt, Nurse Madiko, Nurse\\nJane Doe, Deputy Durham, Dr. Williams, Dr. Solce, and Nurse Johnson in\\ntheir individual capacities. He also sued the jail’s interim Executive Director\\nfor Health Services Dr. Marcus Guice and the former sheriff of Harris County\\nRon Hickman for their supervisory roles. He brought his suit under 42 U.S.C.\\n§ 1983, claiming deliberate indifference to his health, safety, and medical\\nneeds. Baughman also asserted a retaliation claim against Nurse Johnson.\\nSeeking county liability, he further sued Harris County along with Dr. Guice\\nand Sheriff Hickman in their official capacities. Last, Baughman asserted a\\n 2\\n\\f Case: 17-20679 Document: 00515077635 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nnegligence claim under the Texas Tort Claims Act against Harris County.\\nBaughman requested a declaration that his rights had been violated along with\\ninjunctive relief and damages.\\n Deputy Pruitt, Nurse Madiko, Deputy Durham, Sheriff Hickman, Harris\\nCounty, Dr. Guice, and Nurse Johnson filed a joint motion for summary\\njudgment. Drs. Williams and Haque filed separate motions to dismiss under\\nFederal Rule of Civil Procedure 12(b)(6). Nurse Jane Doe and Doctor Solce\\nwere never served, but the district court evaluated the claims against them\\nunder the Prison Litigation Reform Act. The district court dismissed all of the\\nfederal claims and declined to exercise supplemental jurisdiction over the\\nTexas-law claim. The district court also dismissed Baughman’s motions for\\nappointment of counsel and a stay.\\n Baughman appealed, contending the district court erred when it\\ndismissed his claims and refused to appoint counsel. He also filed a motion for\\nappointment of counsel in this court. Drs. Williams and Haque filed a motion\\nin this court for leave to file a sur-reply or alternatively to strike portions of\\nBaughman’s reply brief. These motions have been carried with the case.\\n\\n\\n DISCUSSION\\n The district court dismissed some of the claims as failing to state a claim\\nand granted summary judgment on others. “A dismissal for failure to state a\\nclaim under Rule 12(b)(6) is reviewed ‘de novo, accepting all well-pleaded facts\\nas true and viewing those facts in the light most favorable to the plaintiff.’”\\nWhitaker v. Collier, 862 F.3d 490, 496-97 (5th Cir. 2017) (citation omitted). A\\nprovision of the Prison Litigation Reform Act incorporates similar analysis by\\nallowing dismissal if the suit is frivolous, malicious, or fails to state a claim.\\n28 U.S.C. § 1915(e)(2)(B)(i)-(ii). A separate provision requiring a district court\\n\\n\\n 3\\n\\f Case: 17-20679 Document: 00515077635 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nto screen prisoner cases before docketing them allows dismissal for similar\\nreasons. § 1915A(b)(1).\\n Our review of the grant of summary judgment is “de novo, viewing ‘all\\nfacts and evidence in the light most favorable to the non-moving party’” and\\nensuring “the movant shows that there is no genuine dispute as to any material\\nfact and the movant is entitled to judgment as a matter of law.” Burell v.\\nPrudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016) (citations omitted).\\n\\n\\nI. Deliberate indifference claims\\n Baughman relies on the Eighth and Fourteenth Amendments for his\\ndeliberate indifference claims. The Eighth Amendment ensures the safety of\\nconvicted prisoners while due process under the Fourteenth Amendment\\nprotects pretrial detainees. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th\\nCir. 1996) (en banc). In an affidavit Baughman filed in October 2017, he\\nexplained that he had been “awaiting trial since April 2, 2014.” The proper\\nanalysis of each category of claims is the same, as our “Fourteenth Amendment\\ncase law concerning pretrial detainees [is based] on the Supreme Court’s\\nEighth Amendment precedent concerning prisoners.” Garza v. City of Donna,\\n922 F.3d 626, 634 (5th Cir. 2019) (citing Hare, 74 F.3d at 643-44). The district\\ncourt analyzed the case using pretrial detention cases, and we will as well.\\n We classify a pretrial detention due process claim according to whether\\nit concerns a “condition of confinement” or an “episodic act or omission.”\\nOlabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999) (citation\\nomitted). As is clear from our earlier explanation of the facts underlying\\nBaughman’s suit, he is making claims based on episodic acts or omissions. For\\nsuch claims, “we employ different standards depending on whether the liability\\nof the individual defendant or the municipal defendant is at issue.” Id. Both\\nstandards require Baughman to “establish that the official(s) acted with\\n 4\\n\\f Case: 17-20679 Document: 00515077635 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nsubjective deliberate indifference.” Id. (citation omitted). Resolving some\\narguably conflicting articulations of the required mental state for subjective\\ndeliberate indifference, the en banc court stated this test: “(1) ‘the official must\\nboth be aware of facts from which the inference could be drawn that a\\nsubstantial risk of serious harm exists,’ and (2) ‘he must also draw the\\ninference.’” Williams v. Hampton, 797 F.3d 276, 281 (5th Cir. 2015) (en banc)\\n(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).\\n The “official conduct must be ‘wanton,’ which is defined to mean\\n‘reckless.’” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420 (5th\\nCir. 2017). Subjective deliberate indifference “is an extremely high standard\\nto meet.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.\\n2001). County as opposed to individual liability has the additional\\nrequirement that the “violation resulted from a [county] policy or custom\\nadopted and maintained with objective deliberate indifference.” Garza, 922\\nF.3d at 634 (citation omitted).\\n\\n\\n A. Van ride\\n Baughman claims that the van driver, Deputy Pruitt, “operated the van\\nrecklessly . . . rapidly accelerating, rapidly braking, weaving in and out of\\ntraffic and fail[ing] to keep a proper look-out” with Baughman in the back on\\na steel bench where he was handcuffed, shackled, and not protected by a\\nseatbelt. Baughman’s affidavit identifies the cause of his actual injury was the\\nvehicle’s hitting a pothole or speed bump because the driver failed to keep a\\nproper lookout. The “explosive impact from striking the road hazard injured\\n[P]laintiff’s back and catapulted [P]laintiff from the steel bench causing him to\\nstrike the ceiling of the security cage with the back of his head and neck, just\\nbefore throwing him forward against the front wall of the security divider, as\\nDeputy Pruitt hit the brakes.” Baughman in his complaint asserted that the\\n 5\\n\\f Case: 17-20679 Document: 00515077635 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\ndeputy had acknowledged that “other prisoners have been injured during\\ntransport, in a similar fashion.”\\n Baughman contends his case is similar to a precedent in which we\\nrecognized sufficient allegations of deliberate indifference to survive sua sponte\\ndismissal by the district court during the initial screening of a prisoner’s case.\\nRogers v. Boatright, 709 F.3d 403, 408 (5th Cir. 2013); see 28 U.S.C. § 1915A\\n(requiring review by the district court “as soon as practicable” of certain types\\nof civil complaints by prisoners, and dismissal if justified). In that case, a\\ncorrections officer “was driving the van recklessly, darting in and out of traffic\\nat high speeds while [the inmate] was caged in the back . . . [seated] on a\\nnarrow bench . . . shackled in leg irons and handcuffs . . . [with] no seatbelt;”\\nthe officer “was driving so fast that he had to brake hard to avoid hitting a\\nvehicle in front of him;” the inmate “was thrown head-first into the end of the\\ncage;” and one officer told another “that other inmates similarly had been\\ninjured.” Id. at 406, 409.\\n Baughman also discusses a case from another circuit, Brown v. Fortner,\\n518 F.3d 552 (8th Cir. 2008). There, three prison vans were traveling in a\\nconvoy and collided with each other after going 75 miles per hour in a 55 mile-\\nper-hour zone and “pass[ing] other vehicles at inappropriate times.” Id. at 556.\\nThe driver in the second van had not buckled the seatbelt of the plaintiff-\\ninmate, who was shackled, and he ignored pleas of multiple inmates to slow\\ndown, even “turn[ing] up the radio” after one request. Id. There was no\\nevidence, however, that the driver of the third van “was asked to slow down\\nand refused” or knew that the plaintiff-inmate in the second van was not in a\\nseatbelt. Id. at 560. Finding that knowledge was the “critical difference\\nbetween” the drivers of the two vans, the Eighth Circuit held there was enough\\nevidence at the summary judgment stage to show the driver of the second van\\nwas deliberately indifferent but not the driver of the third. Id. at 560-61.\\n 6\\n\\f Case: 17-20679 Document: 00515077635 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\n In the present case, Deputy Pruitt moved for summary judgment.\\nUnlike in our Rogers decision, which we held was improperly dismissed at the\\nscreening stage, Baughman had to demonstrate genuine issues of material fact\\nthat ultimately could allow a finding that Deputy Pruitt was subjectively –\\nactually – “aware of facts from which the inference could be drawn that a\\nsubstantial risk of serious harm exists” from the manner in which he was\\ndriving the van, and that the deputy must also have drawn that inference yet\\ncontinued to drive dangerously. Williams, 797 F.3d at 281 (citation omitted).\\n The evidence here on summary judgment included an Internal Affairs\\nInvestigative Report of March 1, 2016, a little more than three months after\\nthe November 12, 2015 van ride. That report concluded that the accusations\\nagainst Pruitt for his driving were “unfounded.” Baughman’s affidavit\\nacknowledged that he did not remember much about the event, as he had been\\ngiven morphine and hydrocodone before the van ride and felt “knocked out.”\\nAffidavits from Deputy Pruitt and from the other officer in the van, Deputy\\nBarnett, stated that neither officer could recall the specific ride. Medical\\nrecords from the treatment Baughman received the day of the incident\\n“indicated there was no evidence of injury and the overall findings [of his\\ncondition] were consistent with degenerative change.” He had many medical\\nproblems well before this incident, perhaps affected by his weighing over 420\\npounds.\\n Baughman’s evidence largely came from a sworn statement he gave in\\nDecember 2015. He states he was made to sit on a prison van bench that had\\nno seatbelts. Pruitt was not shown to have any responsibility for the fact there\\nwere no seatbelts. Baughman stated generally that a deputy “drove in a\\nreckless manner when he accelerated and decelerated rapidly.” He then stated\\nthat the van hit a speed bump or pothole, causing Baughman to be propelled\\n\\n\\n 7\\n\\f Case: 17-20679 Document: 00515077635 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nfrom his seat. The statement does not detail further how the driving was\\nreckless.\\n As to whether this is enough evidence of to create a fact issue of\\nrecklessness, we start with Deputy Pruitt’s affidavit which identifies the route\\nhe took that day as including time on Interstate Highway 10. Speeding up and\\nspeeding down on an expressway (or on any road), even if done “rapidly,” is not\\nevidence of recklessness, nor is the inability to avoid a pothole or speed bump.\\nAt most, the sworn statement from someone sitting in the back of a van claimed\\nthat the van was being driven with rapid speed changes (though not\\nnecessarily speeding), and when the van hit something in the road, the\\npassenger was thrown from his seat. This is not evidence of driving in a\\nmanner creating a substantial risk of serious harm.\\n Further, the driver’s subjective knowledge of reckless conduct is not\\naddressed at all in the sworn statement. Though Baughman’s complaint\\nstated that deputy Pruitt “acknowledged other prisoners have been injured” in\\nsimilar fashion, there is no mention of that in the sworn statement. Unlike in\\nBrown, there is no evidence that Baughman asked to have a seatbelt fastened\\nand Pruitt refused, or that he asked the deputy to slow down, or other evidence\\nthat would be some support for the deputy’s awareness.\\n We conclude that there is insufficient information about Pruitt’s driving\\nand no evidence to allow a finding of Pruitt’s actual knowledge that the manner\\nin which he was driving created a substantial risk of harm. Merely negligent\\ndriving by Deputy Pruitt would not support a violation of a constitutional right.\\nWith the evidentiary burden on him at the summary judgment stage,\\nBaughman has failed to marshal evidence in support of this claim.\\n\\n\\n\\n\\n 8\\n\\f Case: 17-20679 Document: 00515077635 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\n B. Post-van ride incident\\n After his return to the jail, Baughman fell asleep in his cell for several\\nhours. His complaint alleges that when he awoke later that evening, he was\\n“in pain so severe he could not get out of his bunk,” that he “was literally crying\\nin pain,” and that he “was not even able to roll onto his side due to the pain.”\\nBaughman alleges that after he got the attention of an officer, Nurse Madiko\\nand two trustees arrived and carried Baughman to the medical unit.\\n Once there, Baughman alleges he “was not seen by a physician, was not\\nquestioned by a physician, and was not given a physical examination or even\\ntouched.” He asserts Nurse Jane Doe simply “shouted from the nurses station\\nthat Dr. Haque had already written . . . a prescription,” commented that\\nBaughman also had a bottom bunk pass, and instructed security personnel to\\nremove Baughman. In response, Nurse Madiko and Deputy Durham ordered\\nBaughman to get off the stretcher. Baughman admits he then “cause[d] a\\ndisturbance” that drew the attention of a supervising officer. Baughman\\nalleges that officer then ordered medical staff to attend to Baughman, after\\nwhich Baughman was sent back to a hospital. Baughman’s complaint\\nemphasizes the “severe” and readily apparent nature of the pain he\\nexperienced before and while at the medical unit. The district court held\\nBaughman failed to state a claim against any of the defendants.\\n For an episodic act claim relying on an alleged denial or delay of medical\\ncare, Baughman can show deliberate indifference by demonstrating that an\\nofficial “refused to treat him, ignored his complaints, intentionally treated him\\nincorrectly, or engaged in any similar conduct that would clearly evince a\\nwanton disregard for any serious medical needs.” Perniciaro v. Lea, 901 F.3d\\n241, 258 (5th Cir. 2018) (citation omitted). “A disagreement about the\\nrecommended medical treatment is generally not sufficient to show deliberate\\nindifference, but the denial of recommended medical treatment is often\\n 9\\n\\f Case: 17-20679 Document: 00515077635 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nsufficient to show deliberate indifference.” Carlucci v. Chapa, 884 F.3d 534,\\n538 (5th Cir. 2018). We of course examine each defendant’s actions\\nindividually. See Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007).\\n The complaint recognizes Jane Doe knew that a “doctor had already\\nwritten [Baughman] a prescription for Tylenol and issued him a bottom bunk\\npass” and that such knowledge formed the basis for her order that Baughman\\nleave the medical area. That is, Baughman’s allegations demonstrate Jane\\nDoe was cognizant of his medical condition and treatment. Her purported\\norders for Baughman to leave the medical unit simply indicate a decision he\\ndid not need further medical attention. The agreement to this course of action\\nby Nurse Madiko, who the complaint alleges accompanied and observed\\nBaughman from his cell to the medical area, is similar. Baughman, in effect,\\ndisputes the nurses’ decision on the medical attention he should have received,\\nwhich is insufficient to state a claim. Carlucci, 884 F.3d at 538.\\n Regarding Doctors Williams and Haque, the complaint at most implies\\nthey were aware of Baughman’s arrival to the medical unit but did not attend\\nto him. This is not the same as alleging the doctors “‘refused to treat him,\\nignored his complaints, intentionally treated him incorrectly, or engaged in\\nany similar conduct that would clearly evince a wanton disregard for any\\nserious medical needs.’” Perniciaro, 901 F.3d at 258 (citation omitted). To the\\ncontrary, Baughman asserts nurses interacted with him and never notified a\\ndoctor that Baughman needed evaluation. Last, Baughman’s complaint about\\nDeputy Durham, a non-medically trained lay person, is that he observed\\nBaughman in pain yet deferred to the decisions of multiple medical personnel.\\nThis fails to state a claim against Deputy Durham. See Hester v. Donahoo, 47\\nF.3d 425 (5th Cir. 1995); 5TH CIR. R. 47.5.3.\\n\\n\\n\\n\\n 10\\n\\f Case: 17-20679 Document: 00515077635 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\n C. Subsequent medical treatment\\n Baughman also alleges Drs. Solce, Williams, and Haque generally\\n“denied [him] adequate pain medication” and “access to physical therapy.” The\\ndistrict court held Baughman failed to state a claim. We agree as these\\n“conclusory allegations . . . will not suffice to prevent a motion to dismiss.”\\nBeavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation\\nomitted).\\n Baughman further alleges that in a January 2016 meeting regarding his\\nback pain, Dr. Haque told him to not “expect to receive pain management . . .\\nor other services you could get if you weren’t in jail;” that “pain is all in the\\nmind and we must all learn to live with it;” and that the jail had “a limited\\nbudget and . . . so many prisoner[s’] problems . . . to deal with.” Baughman\\nalleges these statements “demonstrate a deliberately indifferent attitude and\\nintent to deny adequate medical care.” The district court dismissed these\\nallegations for failure to state a claim. Again, we agree. Factual assertions\\nconcerning Dr. Haque’s “attitude” and “intent” are not sufficient to allege he\\nactually “refused to treat [Baughman], ignored his complaints, intentionally\\ntreated him incorrectly, or engaged in similar conduct.” Alderson, 848 F.3d at\\n422 (citation omitted).\\n\\n\\n D. Incidents involving Nurse Johnson\\n Baughman alleges that about two and a half weeks after the van ride,\\nNurse Johnson visited his cell to administer pain medication and demanded\\nBaughman come to the door of the cell to receive it from her. Baughman\\nasserts his pain was so great he was unable to walk, and Johnson responded\\nthat if he “wanted his medication . . . he needed to crawl to the door to get” it.\\nAn officer allegedly offered to give Baughman his medication in his cell, but\\nJohnson refused to employ that option and left. Later, the complaint claims\\n 11\\n\\f Case: 17-20679 Document: 00515077635 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nthe officer escorted Baughman toward the jail’s medical unit to obtain his\\nmedicine. They encountered Johnson and her pill cart in the hall. Johnson\\nagain allegedly refused Baughman his medicine. The district court granted\\nsummary judgment in Johnson’s favor. Johnson has raised qualified\\nimmunity, placing the burden on Baughman to “demonstrate genuine issues of\\nmaterial fact” regarding whether a violation of clearly established law\\noccurred. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).\\n Johnson acknowledges she did not dispense Baughman’s medicine at his\\ncell nor later when she encountered him in the hall. She asserts, however, she\\n“did not feel comfortable entering [Baughman’s] cell” nor administering his\\nmedication while he was unrestrained in the hallway. She swore in an\\naffidavit that she “followed the Jail procedures” for “high security” in\\ndemanding Baughman receive the medication through an opening in his cell\\nand refusing to dispense it later when Baughman “was not properly restrained”\\nin the hall. She further swore Baughman could go to the medical unit to receive\\nhis medication, which Baughman’s allegations also imply.\\n There is evidence in the record that Johnson was disciplined after\\nBaughman filed a grievance over these incidents and that she was ordered to\\nreview the sheriff’s office policies on the administration of medications.\\nBaughman has not cited any evidence, though, that Johnson actually violated\\njail policy. Indeed, in her affidavit, which she swore out after the ordered\\nreview of the policies, she maintained that she had followed the appropriate\\njail procedures. Baughman has failed to demonstrate a genuine issue of\\nmaterial fact disputing that Johnson was hesitant to administer his medicine\\nbecause of security concerns and jail policy. Refusing to give Baughman his\\nmedicine under these circumstances, especially when he could otherwise\\nobtain it at the jail’s medical unit, does not “show deliberate indifference to\\nserious medical needs.” Alderson, 848 F.3d at 422.\\n 12\\n\\f Case: 17-20679 Document: 00515077635 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\n E. Official capacity defendants; Dr. Guice and Sheriff Hickman in\\n their individual capacities\\n Baughman contends the County, Dr. Guice, and Sheriff Hickman are\\nliable “in their Official Capacities and Individual Capacities for policies at the\\n[jail].” Because an underlying constitutional violation is required to impose\\nliability on the governmental body or supervisory liability on Dr. Guice and\\nSheriff Hickman as individuals, Baughman’s failure to demonstrate a\\nconstitutional violation regarding Deputy Pruitt, Nurse Jane Doe, Nurse\\nMadiko, Deputy Durham, and Drs. Solce, Williams, and Haque disposes of any\\npurported liability of Harris County, Dr. Guice, and Sheriff Hickman on those\\nclaims. See Brumfield v. Hollins, 551 F.3d 322, 327-29, 331-32 (5th Cir. 2008).\\n We resolved the claim against Nurse Johnson, however, by applying\\nqualified immunity and shifting the evidentiary burden to Baughman. The\\nbenefits of that doctrine’s application to Nurse Johnson do not extend to the\\nCounty. See Owen v. City of Independence, 445 U.S. 622, 635-38 (1980).\\nFurther, Dr. Guice’s and Sheriff Hickman’s actions in their individual\\ncapacities were not part of our prior analysis. We consider, then, if Baughman\\nhas sufficient evidence to support claims against the County and Dr. Guice and\\nSheriff Hickman individually. These claims, whether seeking official or\\nindividual liability, require Baughman to connect the existence of a policy,\\nwidespread and settled practice, or a failure to train to a constitutional\\nviolation. Brumfield, 551 F.3d at 327-29, 331-32.\\n Baughman hinges his claims on allegations the jail’s medical personnel\\nroutinely ignore prisoners’ complaints, summarily turn them away when they\\nseek medical attention, and refuse them pain treatment and therapy. Aside\\nfrom the previously mentioned comments by Dr. Haque, which are insufficient,\\nBaughman’s allegations are not supported by specific facts. He directs us to\\nreview a few hundred pages of district court filings. “Although we liberally\\n\\n 13\\n\\f Case: 17-20679 Document: 00515077635 Page: 14 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nconstrue briefs of pro se litigants and apply less stringent standards . . . pro se\\nparties must still brief the issues and reasonably comply with the standards of\\nRule 28.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). These claims\\nwere properly dismissed.\\n\\n\\nII. Retaliation claims\\n Baughman filed a grievance with the jail several days after the incidents\\ninvolving Nurse Johnson. He alleges that she then retaliated by ordering his\\nwheelchair be taken from his cell and by complaining to jail officials that\\nmedical personnel were improperly entering his cell to administer pain\\nmedication. The district court granted summary judgment to Johnson and the\\nCounty Defendants.\\n The First Amendment protects a detainee from retaliation for filing\\ngrievances against prison officials. See DeMarco v. Davis, 914 F.3d 383, 388\\n(5th Cir. 2019). To sustain such a claim, a detainee “must establish (1) a\\nspecific constitutional right, (2) the defendant’s intent to retaliate against\\n[him] for his . . . exercise of that right, (3) a retaliatory adverse act, and (4)\\ncausation.” Id. (citation omitted). Even if an act might be “motivated by\\nretaliatory intent,” it is not a constitutional violation if the effects of it “are so\\nde minimis that they would not deter the ordinary person from further exercise\\nof his rights.” Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). As in the\\ndeliberate indifference context, Baughman must tie a Section 1983 First\\nAmendment claim to a county policy or lack of training to trigger official\\nliability or individual liability for Dr. Guice and Sheriff Hickman. Brumfield,\\n551 F.3d at 331; Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).\\n Baughman does not even allege any harm from Johnson’s purported\\nretaliatory acts. The circumstances in which Nurse Johnson ordered his\\nwheelchair be taken are unclear. Nonetheless, there is no evidence as to the\\n 14\\n\\f Case: 17-20679 Document: 00515077635 Page: 15 Date Filed: 08/15/2019\\n\\n\\n\\n No. 17-20679\\nresult of such an order. Examples of what is not said is whether another\\nwheelchair was not timely found or that Baughman had to maneuver through\\nthe jail without one. There is also no evidence that Johnson’s alleged reporting\\nof medical personnel who entered Baughman’s cell had any consequence for\\nBaughman.\\n\\n\\nIII. Supplemental jurisdiction; motions for counsel and leave to file sur-reply\\n With all federal claims dismissed and diversity lacking, the district court\\nrefused to exercise supplemental jurisdiction over Baughman’s state law claim.\\nSuch a refusal is generally not an abuse of discretion. Heggemeier v. Caldwell\\nCnty., 826 F.3d 861, 872 (5th Cir. 2016). In the absence of “exceptional\\ncircumstances,” it is not an abuse of the district court’s discretion not to appoint\\ncounsel. Naranjo v. Thompson, 809 F.3d 793, 801 (5th Cir. 2015). We also\\nexercise our discretion not to appoint counsel now. Cooper v. Sheriff, Lubbock\\nCnty., 929 F.2d 1078, 1084 (5th Cir. 1991).\\n AFFIRMED. All pending motions are DENIED.\\n\\n\\n\\n\\n 15\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3666,"cells":{"id":{"kind":"number","value":4648813,"string":"4,648,813"},"name":{"kind":"string","value":"WAL-MART STORES, INCORPORATED; Wal-Mart Stores Texas, L.L.C.; Sam's East, Incorporated; Quality Licensing Corporation, Plaintiffs - Appellees Cross-Appellants v. TEXAS ALCOHOLIC BEVERAGE COMMISSION; Kevin Lilly, Presiding Officer of the Texas Alcoholic Beverage Commission; Ida Clement Steen, Defendants - Appellants Cross-Appellees Texas Package Stores Association, Incorporated, Movant - Appellant Cross-Appellee"},"name_abbreviation":{"kind":"string","value":"Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm'n"},"decision_date":{"kind":"string","value":"2019-08-15"},"docket_number":{"kind":"string","value":"18-50299"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Davis, Haynes, Graves\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES E. GRAVES, JR., Circuit Judge\", \"type\": \"010combined\", \"text\": \"Case: 18-50299 Document: 00515078735 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 15, 2019\\n No. 18-50299\\n Lyle W. Cayce\\n Clerk\\n\\nWAL-MART STORES, INCORPORATED; WAL-MART STORES TEXAS,\\nL.L.C; SAM'S EAST, INCORPORATED; QUALITY LICENSING CORPORA-\\nTION,\\n\\n Plaintiffs - Appellees Cross-Appellants\\n\\nv.\\n\\nTEXAS ALCOHOLIC BEVERAGE COMMISSION; KEVIN LILLY, Presiding\\nOfficer of the Texas Alcoholic Beverage Commission; IDA CLEMENT\\nSTEEN,\\n\\n Defendants - Appellants Cross-Appellees\\n\\nTEXAS PACKAGE STORES ASSOCIATION, INCORPORATED,\\n\\n Movant - Appellant Cross-Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore DAVIS, HAYNES, and GRAVES, Circuit Judges.\\nJAMES E. GRAVES, JR., Circuit Judge:\\n Plaintiff-Appellee Wal-Mart Stores, Incorporated and three of its subsid-\\niaries (collectively, “Walmart”), brought 42 U.S.C. § 1983 claims against the\\nTexas Alcoholic Beverage Commission and three of its commissioners (collec-\\ntively, the “TABC”), to challenge four Texas statutes (Tex. Alco. Bev. Code §§\\n\\f Case: 18-50299 Document: 00515078735 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n22.04, 22.05, 22.06, 22.16) 1 that govern the issuances of permits that allow for\\nthe retail sale of liquor in Texas (called “package store” permits, or “P per-\\nmits”). Section 22.16 prohibits public corporations from obtaining P permits in\\nTexas. Walmart argued that the ban violates the dormant Commerce Clause\\nof the United States Constitution and the Equal Protection Clause of the Four-\\nteenth Amendment. Later, we granted the Texas Package Store Association’s\\n(“TPSA”) motion to intervene as a matter of right, in defense of the statutes.\\nSee Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562 (5th\\nCir. 2016).\\n We now consider the TABC and TPSA’s (“appellants”) appeal of the dis-\\ntrict court’s conclusion that the public corporation ban offends the dormant\\nCommerce Clause, and Walmart’s cross-appeal of the district court’s determi-\\nnation that the public corporation ban does not violate the Equal Protection\\nClause. We affirm the part of the district court’s judgment rejecting Walmart’s\\nEqual Protection challenge to the public corporation ban. Conversely, because\\nthe district court erred in its findings regarding the discriminatory nature and\\nburden imposed by the public corporation ban, Walmart’s dormant Commerce\\nClause challenge to § 22.16 is remanded.\\n I. Facts\\n A.\\n Texas regulates the sale and importation of alcoholic beverages through\\na three-tier system that requires separate licenses and permits for producers,\\nwholesalers, and retailers who meet certain eligibility requirements. See Wine\\nCountry Gift Baskets.com v. Steen, 612 F.3d 809, 818–19 (5th Cir. 2010) (noting\\nthat Texas has a three-tier system “in which producers sell to state-licensed\\nwholesalers, who sell to state-licensed retailers”). Liquor retailers must obtain\\n\\n\\n 1 Walmart’s challenge to Tex. Alco. Bev. Code § 22.06 is not at issue on appeal.\\n 2\\n\\f Case: 18-50299 Document: 00515078735 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\na separate permit for each physical location where liquor is sold for off-prem-\\nises consumption. The permits authorize an unlimited volume of sales from the\\npermitted location. The TABC is the state agency responsible for issuing per-\\nmits and enforcing the Texas Alcoholic Beverage Code. The TPSA is the trade\\nassociation of Texas package stores that are majority-owned by Texans.\\n There is one permit relevant to this appeal. P permits authorize the sale\\nof liquor, wine, and ale for off-premises consumption. Tex. Alco. Bev. Code §\\n22.01. Texas liquor stores must hold a P permit.\\n At the time of this litigation, there were 2,578 active P permits issued by\\nthe TABC, and 574 were owned by a package store chain (a business holding\\nsix or more P permits). There were 21 active package store chains. Since 1944,\\npackage store chains have grown in size and volume of sales, although the total\\nnumber of package stores has remained approximately the same. The package\\nstore chains have a significant share of the Texas market, but it is not clear\\nhow much. The largest package store chains control seven of the nine seats on\\nthe TPSA’s executive committee.\\n B.\\n Texas’ public corporation ban proscribes “any entity which is directly or\\nindirectly owned or controlled, in whole or in part, by a public corporation”\\nfrom obtaining a P permit. Tex. Alco. Bev. Code § 22.16(a). The statute defines\\na “public corporation” as a corporation “whose shares . . . are listed on a public\\nstock exchange” or “in which more than 35 persons hold an ownership inter-\\nest.” Id. § 22.16(b). Public corporations can hold any of the other seventy-five\\ntypes of alcohol permits that Texas issues.\\n\\n\\n\\n\\n 3\\n\\f Case: 18-50299 Document: 00515078735 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n Walmart is a retailer that is the largest public company in the world. 2\\nOperating approximately 5,000 stores in the U.S., Walmart currently sells beer\\nor wine in forty-seven states, including 668 locations in Texas, and liquor in\\nthirty-one states. Walmart’s goal is to increase its sales and profits from alco-\\nholic beverages in Texas. Walmart has plans to open liquor stores adjacent to\\nsome of its existing Texas retail locations. However, because it is a publicly\\ntraded corporation without a majority shareholder, Walmart cannot imple-\\nment its plan unless the public corporation ban is invalidated.\\n Walmart unsuccessfully lobbied the Texas Legislature to repeal § 22.16. 3\\nAfter its failed attempt to obtain a legislative remedy, Walmart sued the TABC\\nin federal court to have the judiciary neutralize the public corporation ban, and\\nthis court subsequently granted the TPSA’s motion to intervene.\\n After a week-long bench trail, the district court concluded, inter alia, that\\nthe public corporation ban: (1) has a discriminatory purpose and the ban’s bur-\\nden on interstate commerce is clearly excessive when compared to the local\\nbenefits, and (2) does not violate the Equal Protection Clause. The district\\ncourt enjoined the TABC from enforcing the public corporation ban. This ap-\\npeal and cross-appeal followed. We consider whether the public corporation\\nban is unconstitutional under the dormant Commerce Clause and the Equal\\nProtection Clause. 4\\n\\n\\n\\n\\n 2 As of 2018, Walmart had consolidated revenue of over $500 billion, making it the\\nlargest company in the world. Fortune 500 Companies 2018: Who Made the List, FORTUNE\\nMAG. (May 21, 2018), http://fortune.com/global500/.\\n 3 Along with the other aforementioned statutes that we do not address at this time.\\n 4 The district court exercised subject matter jurisdiction over this case based on federal\\n\\nquestion jurisdiction under 28 U.S.C. § 1331. We have jurisdiction over this appeal pursuant\\nto 28 U.S.C. § 1291.\\n 4\\n\\f Case: 18-50299 Document: 00515078735 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n II. Standards of Review\\n We review a district court’s judgment regarding the constitutionally of a\\nstatute de novo. Allstate Ins. Co. v. Abbott, 495 F.3d 151, 160 (5th Cir. 2007).\\nThe district court’s findings of fact relevant to the constitutional question are\\nreviewed for clear error. Id. Because this case involves a dormant Commerce\\nClause challenge, one threshold issue is whether the public corporation ban\\nwas enacted with the purpose to discriminate against interstate commerce. Id.\\nat 160–62. In Allstate, this court applied the Arlington 5 factors to determine\\nwhether purposeful discrimination inspired a state legislature’s actions in vio-\\nlation of the dormant Commerce Clause. 6 Therefore, we do the same. 7 “[A] dis-\\ntrict court’s finding of fact on the question of discriminatory intent is reviewed\\nfor clear error.” Abbott v. Perez, 138 S. Ct. 2305, 2326 (2018). “If the district\\ncourt’s findings are plausible in light of the record viewed in its entirety, we\\nmust accept them, even though we might have weighed the evidence differently\\nif we had been sitting as a trier of fact.” Veasey v. Abbott, 830 F.3d 216, 229\\n(5th Cir. 2016) (en banc) (quotation marks omitted). “However, when the dis-\\ntrict court’s ‘findings are infirm because of an erroneous view of the law, a re-\\nmand is the proper course unless the record permits only one resolution of the\\nfactual issue.’” Id. (quoting Pullman–Standard v. Swint, 456 U.S. 273, 292\\n(1982)). In the latter case, we should reverse and render a decision. Id.\\n\\n\\n\\n\\n 5 See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266–\\n68 (1977).\\n 6 Allstate, 495 F.3d at 160.\\n 7 Although it is debatable whether the Arlington factors should be applied when con-\\n\\nsidering whether purposeful discrimination motivated legislative action in a dormant Com-\\nmerce Clause case, given our well-established rule that one panel of the Fifth Circuit cannot\\noverrule the prior decision of another panel, we need not consider arguments challenging\\napplication of the factors to this case. See Gardes Directional Drilling v. U.S. Turnkey Expl.\\nCo., 98 F.3d 860, 868 (5th Cir. 1996) (citing Broussard v. Southern Pac. Transp. Co., 665 F.2d\\n1387, 1389 (1982) (en banc)).\\n 5\\n\\f Case: 18-50299 Document: 00515078735 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n III. Challenges\\n A.\\n The Supreme Court has long held that the Commerce Clause “prohibits\\nstate laws that unduly restrict interstate commerce.” Tennessee Wine & Spirits\\nRetailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019). This interpretation is\\nknown as the dormant Commerce Clause. “‘This negative aspect of the Com-\\nmerce Clause’ prevents the States from adopting protectionist measures and\\nthus preserves a national market for goods and services.” Tennessee Wine, 139\\nS. Ct. at 2459 (quoting New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273\\n(1988)).\\n “A statute violates the dormant Commerce Clause where it discriminates\\nagainst interstate commerce either facially, by purpose, or by effect.” Allstate,\\n495 F.3d at 160. Given that this case involves a law that regulates liquor re-\\ntailers, the dormant Commerce Clause analysis must be considered in light of\\nthe Twenty-first Amendment. Section 2 of the Amendment grants states the\\nauthority to regulate the transportation, importation, possession, and use of\\nalcohol within their own borders. See U.S. Const. amend. XXI, § 2.\\n Recently, in Tennessee Wine, the Court reaffirmed what this court had\\npreviously concluded: 8 Section 2 does not grant states the power to violate the\\n“nondiscrimination principle” of the dormant Commerce Clause. 139 S. Ct. at\\n2470 (citing Granholm v. Heald, 544 U.S. 460, 487 (2005)). The Court acknowl-\\nedged that, under § 2, states “remai[n] free to pursue their legitimate interests”\\nin addressing the health and safety risks associated with the alcohol trade. Id.\\nat 2472 (alteration in original) (quotation marks omitted). Therefore, “each\\nvariation [of law] must be judged based on its own features.” Id.\\n\\n\\n 8 In Cooper II, this court rejected the TPSA’s assertion that Commerce Clause protec-\\ntions do not apply to state alcohol laws regulating the retailers and wholesalers in a three-\\ntier system. 820 F.3d at 743.\\n 6\\n\\f Case: 18-50299 Document: 00515078735 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n The Court clarified the standard for evaluating a discriminatory alcohol-\\nrelated regulation, charging courts to “ask whether the challenged [discrimi-\\nnatory] requirement can be justified as a public health or safety measure or on\\nsome other legitimate nonprotectionist ground.” Id. at 2474. The standard has\\nteeth. “[M]ere speculation” or “unsupported assertions” of fact are insufficient\\nto validate an otherwise discriminatory law. Id. If the “predominant effect” of\\nthe discriminatory law is protectionism and not “the protection of public health\\nor safety,” the law is not shielded by § 2. Id. at 2474. In conducting the inquiry,\\ncourts must look for “concrete evidence” that the statute “actually promotes\\npublic health or safety,” or evidence that “nondiscriminatory alternatives\\nwould be insufficient to further those interests.” Id.\\n Section 22.16 is a facially neutral statute that bans all public corpora-\\ntions from obtaining P permits irrespective of domicile. Therefore, we focus on\\nwhether the ban was enacted with a discriminatory purpose or has a discrimi-\\nnatory effect on interstate commerce.\\n B.\\n Although the district court correctly cited the Arlington framework, some\\nof its discriminatory purpose “findings are infirm.” Veasey, 830 F.3d at 230\\n(quotation marks omitted). The record does not support “only one resolution of\\nthe factual issue,” as there is evidence that could support the district court’s\\nfinding of a purpose to discriminate, so we must remand for a reweighing of\\nthe evidence on that issue. Id.\\n “The burden of establishing that a challenged statute has a discrimina-\\ntory purpose under the Commerce Clause falls on the party challenging the\\nprovision.” Allstate, 495 F.3d at 160. We consider the following non-exhaustive\\nfactors when determining whether a state legislature’s actions amount to pur-\\nposeful discrimination against interstate commerce: (1) whether the effect of\\nthe state action creates a clear pattern of discrimination; (2) the historical\\n 7\\n\\f Case: 18-50299 Document: 00515078735 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nbackground of the action, which may include any history of discrimination by\\nthe decisionmakers; (3) the “specific sequence of events leading up” to the chal-\\nlenged state action, including (4) any “departures from normal procedures[;]”\\nand (5) “the legislative or administrative history of the state action, including\\ncontemporary statements by decisionmakers.” Id. Legislators’ awareness of a\\ndiscriminatory effect “is not enough: the law must be passed because of” that\\ndiscriminatory effect. Veasey, 830 F.3d at 231 (applying the Arlington factors).\\nThe challenger must show that the discriminatory effect was “a substantial or\\nmotivating factor” leading to the enactment of the statute. Id. (quotation marks\\nomitted). If the challenger meets that burden, defendants must “demonstrate\\nthat the law would have been enacted without this factor.” Id.\\n First, the district court properly found that Texas has a clear history of\\ndiscriminating against out-of-state alcohol retailers. From the passage of its\\nLiquor Control Act in 1935, Texas had prohibited out-of-state individuals and\\ncompanies from owning package stores. In Cooper v. McBeath, this court inval-\\nidated Texas laws imposing durational residency requirements on alcohol re-\\ntail store owners. 11 F.3d 547 (5th Cir. 1994) (Cooper I). While Cooper I was\\npending, the Texas Legislature enacted House Bill 1445, in an attempt to moot\\nthe Cooper I litigation. The bill repealed the residency requirements at issue\\nin the case. Texas kept durational residency requirements for other permits.\\nSoon after the governor of Texas signed the bill, the Cooper I plaintiffs moved\\nto dismiss the appeal as moot. However, this court denied the motion and is-\\nsued an opinion striking down the residency requirements, with language\\nbroad enough to apply to all the alcohol permits. Id. at 550–51, 554. Despite\\nthe Cooper I decision, Texas enforced durational residency requirements as ap-\\nplied to P permits for another twelve years—stopping enforcement only after\\nthe practice was permanently enjoined by a federal district court. S. Wine &\\nSpirits of Texas, Inc. v. Steen, 486 F. Supp. 2d 626, 633 (W.D. Tex. 2007). The\\n 8\\n\\f Case: 18-50299 Document: 00515078735 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nevidence relied on by the district court was “not long past history.” Veasey, 830\\nF.3d at 232. Texas decisionmakers have a history of discrimination. 9\\n Addressing a second factor, the district court erred in finding that the\\nlegislative history of § 22.16 includes direct evidence of a purpose to discrimi-\\nnate against interstate commerce. The district court made much of the fact\\nthat § 22.16 was enacted in 1995, one year after Cooper I. A lawyer and lobbyist\\nwho worked on behalf of the TPSA drafted the corporation ban. The TPSA,\\nwhich had vigorously defended the residency requirements struck down by this\\ncourt, later admitted that there was a fear that “large stores could disrupt what\\nhad been a very stable business climate” and there could be a “Wal-Martiza-\\ntion” of the Texas package store market. Further, the Texas legislature was\\naware that, but for the Cooper I decision, the TPSA would not have suggested\\nand supported the public corporation ban.\\n Based largely on those findings regarding the conduct and motivations\\nof the TPSA, the district court concluded that the Texas legislature enacted the\\npublic corporation ban with the same protectionist motivations. This despite\\nthe provision’s drafter testifying that he told legislators the purpose of the bill\\nwas accountability. He was the only witness at the committee hearings and\\ntold the legislators that the purpose of the bill was to promote accountability,\\nor “to have real human beings who are easily identifiable, who are close to the\\nbusiness, and who ultimately bear personal responsibility for the actions of the\\npackage store.” Years later—at trial—he admitted that he “knew that any bill\\n[enacted] might be challenged” and that his “assignment was to craft a bill\\nwhich . . . would survive a commerce clause challenge.” The district court de-\\ntermined that the “TPSA’s chief concern was maintaining the business climate\\n\\n\\n\\n 9 Walmart also argues that actions taken by the TPSA evidence a history of discrimi-\\nnation. However, the actions of the TPSA do not control this inquiry.\\n 9\\n\\f Case: 18-50299 Document: 00515078735 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\ncreated by the residency requirement,” and that the legitimate rationales con-\\ncerning accountability were “pretextual.” However, in Veasey, we reiterated\\nthat overreliance on “post-enactment testimony” from actual legislators is\\nproblematic, and not “the best indicia of the Texas Legislature’s intent.” Ve-\\nasey, 830 F.3d at 234. In light of Veasey, after-the-fact statements made by a\\nnon-legislator are certainly not sufficient indicia of legislative intent.\\n The district court did not find evidence connecting any Texas legislator\\nto the conclusion that the accountability rationale was pretextual. The only\\ncomments from a Texas legislator the district court relied on were made by\\nstate Senator Kenneth Armbrister. When asked to explain the purpose of the\\npublic corporation ban, Armbrister stated that the ban meant “you can’t have\\na package store inside a Walmart” and “Walmart can’t own the package store.”\\nAs the district court noted, during the senate floor debate on Senate Bill 1063\\n(which became § 22.16), Armbrister agreed with state Senator Henderson’s re-\\nmark that the Legislature “wanted to have somebody from Texas with a license\\nthat you could get ahold of . . . to enforce the code.”\\n However, the district court did not provide the context of the senators’\\nstatements. Armbrister and Henderson were engaged in a discussion about the\\nmotivation for the public corporation ban when Armbrister stated that the pur-\\npose was to have a better way to “track” package store owners. Specifically,\\nArmbrister stated, “I think what” both “the industry . . . and the [TABC] was\\ntrying to do is a better tracking system, because . . . you’ve got large-scale cor-\\nporations that operate . . . it all ties in to(sic) the operation phase.” Henderson\\nreplied by explaining that a corporation could own a package store by obtaining\\nthe permit through a local licensee (presumably because Texas previously had\\nenforceable durational-residency requirements), referring to the mechanism\\nemployed by corporations as a “fake-a-roo.” Next, Armbrister attempted to ex-\\nplain some exemptions to the ban when Henderson replied that the “fake-a-\\n 10\\n\\f Case: 18-50299 Document: 00515078735 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nroo” was used because the legislators previously wanted only people from\\nTexas to hold P permits “to enforce the code.”\\n Significantly, Henderson asked Armbrister, “It’s not the bill . . . that\\nkeeps foreign ownership from coming in and . . . getting licenses, that kind of\\nthing?” (emphasis added). To which Armbrister answered, “No. Those . . . both\\nthose bills are still pending in committee.” Henderson replied, “Good. Thank\\nyou.” Near the close of the floor debate, the Texas Senate voted to pass the bill.\\nThe floor debate was devoid of discriminatory remarks directed toward out-of-\\nstate competition generally. The transcript reveals that there were entirely\\nseparate bills being advanced to address foreign owners. Moreover, the “Expla-\\nnations and Arguments” in support of Senate Bill 1063 indicate that the reason\\nfor the ban was to ensure that owners were known to the community and “could\\nbe held accountable for responsible operation.” The document further states,\\n“Courts have recently struck down . . . Texas resident law saying that it penal-\\nized out of state citizens” but there remained a need to have a human who is\\neasily identifiable and responsible for the actions of a given package store busi-\\nness. The legislative history is merely “evidence of a legislative desire to treat\\ndifferently two business forms . . . a distinction based not on domicile but on\\nbusiness form.” Allstate, 495 F.3d at 161.\\n There is no direct evidence of a discriminatory purpose in the legislative\\nhistory; Plaintiffs rely on circumstantial evidence. The motivations and lobby-\\ning efforts of the TPSA are not direct evidence of legislative purpose. An ad-\\nmission that the drafter sought to create a law that would survive a constitu-\\ntional challenge is not evidence of a discriminatory legislative purpose. There\\nare no “stray protectionist remarks” in the legislative history, and even if there\\nwere, such remarks “are insufficient to condemn” an otherwise nondiscrimina-\\ntory statute. Id.\\n\\n\\n 11\\n\\f Case: 18-50299 Document: 00515078735 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n Turning to a third factor, the district court failed to apply the “presump-\\ntion of legislative good faith” in finding that the sequence of events that led to\\nthe enactment of § 22.16 evidences a discriminatory purpose. Perez, 138 S. Ct.\\nat 2324. In line with the district court, Walmart relies on the Texas Legisla-\\nture’s failed attempt to moot Cooper I during the 1993 session and the Legis-\\nlature’s enactment of the public corporation ban during the 1995 session. The\\nTABC argues that it is irrelevant that the corporation ban was enacted in re-\\nsponse to Cooper I. TPSA argues that the district court’s conclusion based in\\npart on post-Cooper I conduct is inconsistent with controlling case law.\\n In Perez, the Supreme Court made it clear that “[t]he allocation of the\\nburden of proof and the presumption of legislative good faith are not changed\\nby a finding of past discrimination.” Id. at 2324. Past discrimination is merely\\none potential evidentiary source. Id. The district court specifically found that\\n“if not for the Fifth Circuit striking down Texas’s residency requirement, TPSA\\nwould not have proposed, and the Legislature would not have enacted, the ban\\non public corporations holding package store permits.”\\n While that finding might be true, there are problems with concluding\\nthose events evidence a purpose to discriminate. As stated previously, the\\nTPSA’s motivations and actions are not sufficient indicia of legislative intent.\\nAs a result, the only remaining evidence is the Texas Legislature’s actions in\\nsupport of a discriminatory purpose during Cooper I. The district court flipped\\n“the evidentiary burden on its head” based only on the recent history of dis-\\ncrimination. Id. at 2325. More than requiring Walmart to present specific\\nevents evidencing a discriminatory purpose connected to the public corporation\\nban, the district court placed the burden on appellants to provide evidence that\\nthe Texas Legislature had a true “change of heart” with respect to the resi-\\ndency requirements while enacting a ban that affects public corporations irre-\\nspective of location. Id. at 2326.\\n 12\\n\\f Case: 18-50299 Document: 00515078735 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n The burden flip was especially problematic because the district court’s\\nfindings arguably indicate that the Legislature sought to comply with the de-\\nmands of the dormant Commerce Clause. The district court noted that Texas\\ndid not stop enforcing durational residency requirements as applied to package\\nstore owners until 2007, more than twelve years after § 22.16 was enacted.\\nThis also meant that the public corporation ban was enforced against Texas\\ncorporations while Texans still believed it was proper to deny would-be pack-\\nage store owners from outside the state. As far as the record reveals, Texas\\ncorporations were the only companies affected by the public corporation ban\\nfor at least a decade after it was enacted. 10 In any event, the district court\\ncommitted clear error by failing to apply a presumption of good faith to the\\nenactment of the public corporation ban.\\n The previously noted errors are further compounded because the district\\ncourt misapplied the first Arlington factor. The first factor asks whether “a\\nclear pattern of discrimination emerges from the effect of the state action.” All-\\nstate, 495 F.3d at 160. The district court found that the corporation ban had\\nthe “effect of barring nearly all out-of-state companies with the scale and ca-\\npabilities necessary to serve the Texas retail liquor market.” That finding does\\nnot answer the relevant question. For this dormant Commerce Clause inquiry,\\nthe question is: Does the legislative action affect Walmart based on its status\\nas an out-of-state public corporation? See Allstate, 495 F.3d at 160–61. This\\nerror highlights a general flaw throughout the district court’s findings.\\n\\n\\n\\n\\n 10 The public corporation ban does have a “grandfather clause” that exempts corpora-\\ntions that held a P permit before the day the statute was enacted. Tex. Alco. Bev. Code. §\\n22.16(f). Because Texas enforced durational residency requirements for package store owners\\nuntil 2007, the exempted corporations are Texas-based firms. This clause arguably provides\\nsome evidence of an effort by the Legislature to benefit in-state corporations, which the court\\ncan consider along with other evidence in this case.\\n 13\\n\\f Case: 18-50299 Document: 00515078735 Page: 14 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n The evidence indicates that the Legislature intended to ban public cor-\\nporations from obtaining P permits after the state lost its ability to enforce the\\ndurational residency requirements for other permits. Based on the optics, the\\ndistrict court made several assertions without considering a critical point: Un-\\nder the law of the Fifth Circuit, evidence that legislators intended to ban po-\\ntential permittees based on company form alone is insufficient to meet the pur-\\npose element of a dormant Commerce Clause claim. See Allstate, 495 F.3d at\\n161–62 (rejecting Allstate’s discriminatory purpose argument because the evi-\\ndence indicated only a desire to treat business forms differently, without re-\\ngard to location); Ford Motor Co. v. Texas Dep’t of Transp., 264 F.3d 493, 500–\\n01 (5th Cir. 2001) (rejecting discriminatory purpose argument because “the\\nlegislative history indicate[d] the legislature’s intent to prevent manufacturers\\nfrom utilizing their superior market position to compete against dealers in the\\nretail car market”); see also Exxon Corp. v. Maryland, 437 U.S. 117, 125 (1978)\\n(rejecting claims of disparate treatment because the statute did “not discrimi-\\nnate against interstate goods” or favor local companies over interstate compa-\\nnies). Section 22.16 bans public corporations from obtaining P permits irre-\\nspective of location. The ban’s effect on all public corporations provides strong\\nevidence that the Legislature did not purposefully discriminate against out-of-\\nstate corporations. 11\\n While the district court committed several errors in finding that the Leg-\\nislature adopted the public corporation ban with a purpose to discriminate\\nagainst interest commerce, the record also contains circumstantial evidence\\nthat could support such a finding. As acknowledged, Texas has a history of\\n\\n\\n 11 The application of the first Arlington factor underscores why it is debatable whether\\nthe factors should be applied in the dormant Commerce Clause context. Under Allstate, Ford,\\nand Exxon, a statute can create an obvious and significant barrier against out-of-state eco-\\nnomic actors and, nevertheless, not evidence a discriminatory purpose. Good drafting can\\nrender the first Arlington factor hollow.\\n 14\\n\\f Case: 18-50299 Document: 00515078735 Page: 15 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\ndiscriminating against out-of-state alcohol retailers. That history has signifi-\\ncant “probative value in connection” with the discriminatory purpose inquiry.\\nVeasey, 830 F.3d at 232. However, affirming the district court’s finding of a\\npurpose to discriminate based on the history alone would create an odd result.\\nStates should be able to respond to a court deeming one of its laws unconstitu-\\ntional. In addition, the present inquiry is further complicated because Texas\\nenforced durational residency requirements against would be P permit holders\\nfor years after the public corporation ban was enacted. In this context, overre-\\nliance on the history alone would be a mistake. In line with Veasey, 12 and the\\nSupreme Court’s analysis in Perez, the history of discrimination should be\\nweighed “with any other direct and circumstantial evidence of th[e] Legisla-\\nture’s intent.” Perez, 138 S. Ct. at 2327.\\n The district court committed errors in its findings with respect to the\\nother Arlington factors. The appropriate action is to remand the discriminatory\\npurpose issue for reconsideration in light of this opinion. See Veasey, 830 F.3d\\nat 235 (explaining that discriminatory intent is a factual matter that, when set\\naside for an error of law, should be remanded for further proceedings).\\n C.\\n Moving on in the dormant Commerce Clause analysis, the district court\\nfound that the public corporation ban does not have a discriminatory effect. 13\\nThe district court reached that determination by following Allstate, 14 Ford, 15\\n\\n\\n 12 830 F.3d at 232 (noting that “relatively contemporary examples of discrimination\\nidentified by the district court are limited in their probative value in connection with discern-\\ning the Texas Legislature’s intent”).\\n 13 The district court also acknowledged its “odd” result, finding the public corporation\\n\\nban has a discriminatory purpose but not a discriminatory effect. As stated in Section III.B\\nof this opinion, that result was partially attributable to the district court’s misapplication of\\nthe first Arlington factor. However, it also highlights the logical inconsistency that might\\nresult from applying the Arlington factors in a dormant Commerce Clause case.\\n 14 495 F.3d 162–63 (relying on Exxon and rejecting discriminatory effect argument).\\n 15 264 F.3d at 500–02 (relying on Exxon and rejecting discriminatory effect argument).\\n\\n 15\\n\\f Case: 18-50299 Document: 00515078735 Page: 16 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nand Exxon. 16 Exxon is the controlling dormant Commerce Clause case for con-\\nsidering a facially neutral statute that bans particular companies from a retail\\nmarket. In Exxon, oil companies brought a dormant Commerce Clause chal-\\nlenge to invalidate a Maryland statute prohibiting producers and refiners of\\npetroleum products from operating retail service stations in the state. The oil\\ncompanies argued that the statute had the effect of protecting in-state inde-\\npendent dealers from out-of-state competition. Exxon, 437 U.S. at 125. The\\nplaintiffs relied on the fact that the burden of the prohibition fell solely on in-\\nterstate companies. Id.\\n The Supreme Court rejected the argument and explained that because\\n“the burden of [a] state regulation falls on some interstate companies does not,\\nby itself, establish a claim of discrimination against interstate commerce.” Id.\\nat 126. The Court’s reasoning was based on the following factors: (1) The pro-\\nhibition did not restrict interstate dealers in the retail market; (2) did not re-\\nstrict the flow of interstate goods; (3) did not place added costs on interstate\\ngoods; and (4) did not distinguish between in-state and out-of-state retailers in\\nthe market. Id. The Court declared that the absence of those factors “distin-\\nguishe[d] th[e] case from those in which a State has been found to have dis-\\ncriminated against interstate commerce.” Id. A burden on some interstate com-\\npanies is not a violation if “in-state [retailers] will have no competitive ad-\\nvantage over out-of-state [retailers].” Id.\\n In Ford, this court considered Exxon and rejected the plaintiff’s discrim-\\ninatory effect argument. The case involved a Texas statute that banned auto-\\nmobile manufacturers from obtaining a license to become car dealers in the\\nstate. This court explained that a statute should be examined by “its effect on\\nsimilarly situated business entities.” Ford, 264 F.3d at 501. Ford had failed to\\n\\n\\n 16 437 U.S. at 125–26 (rejecting argument that statute had a discriminatory effect).\\n 16\\n\\f Case: 18-50299 Document: 00515078735 Page: 17 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nshow that the Texas statute in question “discriminate[d] according to the ex-\\ntent of a business entity’s contacts with the State. . . . [B]ut rather [showed\\ndiscrimination] on the basis of Ford’s status as an automobile manufacturer.”\\nId. at 502. It was irrelevant whether Ford is domiciled in Texas or Michigan.\\nId. Either way, Ford was proscribed from entering the Texas automobile retail\\nmarket. The statute, however, did not discriminate against independent auto-\\nmobile dealers seeking to enter the Texas market. Id. Even if the statute “pre-\\nvent[ed] manufacturers from utilizing their superior market position to com-\\npete against dealers in the retail car market[,]” the statute did not have a dis-\\ncriminatory effect on interstate commerce. Id. at 500. A statute can have a\\ndiscriminatory effect if it provides a “competitive advantage to in-state inter-\\nests vis-à-vis similarly situated out-of-state interests.” Id. at 501 (emphasis\\nadded).\\n Allstate is the most recent of the controlling cases. 17 Allstate, which con-\\ntrolled approximately 15% of the automobile insurance market in Texas, initi-\\nated a plan to enter the auto body repair business by acquiring Sterling Colli-\\nsion Centers, Inc. (“Sterling”). Sterling was a multi-state chain of repair shops,\\nincluding 15 shops in Texas. 495 F.3d at 155. Allstate believed it could mini-\\nmize expenses for unnecessary or overpriced repairs, and eventually started\\nfunneling repair opportunities to Sterling instead of other local repair shops.\\nId. Texas later passed a bill that barred insurers from acquiring an interest in\\n\\n\\n 17 In Churchill Downs Inc. v. Trout, this court acknowledged that, “[i]n cases where\\nthe challenged statutes are facially neutral, the Supreme Court has evinced a reluctance to\\ntake an expansive view of the concept of ‘discriminatory effects.’” 589 F. App’x 233, 236 (5th\\nCir. 2014). This court noted that the Court reached the conclusion in Exxon by using a narrow\\ndefinition of “substantially similarly entities.” Id. The Court has been mostly reluctant to find\\nthat a facially neutral statute has a discriminatory effect. See id. (discussing Minnesota v.\\nClover Leaf Creamery Co., 449 U.S. 456, 458 (1981), in which the court upheld a facially-\\nneutral statute); id. at n.7 (citing Erwin Chemerinsky, Constitutional Law 447 (4th ed. 2011)\\n(citing Clover Leaf as an additional example of a case where “discriminatory impact” did not\\ninvalidate a facially neutral statute)).\\n 17\\n\\f Case: 18-50299 Document: 00515078735 Page: 18 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nauto body shops. 18 Id. at 156. Allstate later filed suit, arguing in part that the\\nbill violated the dormant Commerce Clause. Allstate chiefly argued that the\\nbill was part of a coordinated political effort to hurt its Sterling venture and to\\nmaintain the market dominance of local Texas body shops. Id. The district\\ncourt rejected the claim. Id. at 157.\\n On appeal, the plaintiffs argued that the bill had a discriminatory effect\\nbecause it favored in-state companies and would shift some services from out-\\nof-state providers to in-state providers. 495 F.3d at 162. Relying principally on\\nExxon, this court rejected the discriminatory effect argument, stating that “[a]\\nstatute impermissibly discriminates only when it discriminates between simi-\\nlarly situated in-state and out-of-state interests.” Id. at 163.\\n In the present case, the public corporation ban treats in-state and out-\\nof-state public corporations the same. Neither in-state nor out-of-state public\\ncorporations may obtain a P permit or own a package store. There are “no bar-\\nriers whatsoever to out-of-state” companies obtaining P permits so long as they\\nare not a public corporation as defined by the statute. Allstate, 495 F.3d at 163.\\nFurther, § 22.16 does not “prohibit the flow of interstate [liquor retail prod-\\nucts], place additional costs upon [out-of-state retailers], or distinguish be-\\ntween in-state and out-of-state companies in the retail market.” Id. (quotation\\nmarks omitted). “[T]he absence of any of these factors fully distinguishes this\\ncase from those in which a State has been found to have discriminated against\\ninterstate commerce.” Id. (quotation marks omitted). As the district court\\nnoted, Texas-based public corporations are prohibited from selling liquor in the\\nstate. Meanwhile, several companies owned by out-of-state residents have en-\\ntered the Texas liquor retail market, including one of the ten largest liquor\\n\\n\\n\\n 18The bill also included a grandfather clause that exempted facilities already open for\\nbusiness at the time. Allstate, 495 F.3d at 157 n.6.\\n 18\\n\\f Case: 18-50299 Document: 00515078735 Page: 19 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nretailers in the state. 19 Despite the fact that the public corporation ban un-\\ndoubtedly blocks some economic actors from entering the Texas liquor retail\\nmarket, 20 we agree with the district court that the ban does not have a discrim-\\ninatory effect on interstate commerce. 21\\n Because the district court committed clear error in finding that § 22.16\\nwas enacted with a purpose to discriminate against interstate commerce, and\\ngiven that we have concluded that the facially neutral ban does not have a\\ndiscriminatory effect, we must remand this case for reconsideration of whether\\nthe ban was enacted with a discriminatory purpose.\\n\\n\\n\\n\\n 19 Fine Wines & Spirits of North Texas, LLC is owned by a Maryland resident.\\n 20 See Ford, 264 F.3d at 512 (Jones, J., concurring) (concurring because Exxon is con-\\ntrolling but noting the barrier to retail competition from out-of-state).\\n 21 There is a tension, however, between the Court’s analysis in Exxon and dicta from\\n\\nits recent opinion in Tennessee Wine. 139 S. Ct. 2449. The case involved a set of Tennessee\\nlaws that placed durational-residency requirements on those seeking to obtain or renew a\\nlicense to operate a liquor store in the state. Id. at 2456. One of the provisions provided that\\na corporation could not obtain a license to operate a liquor store unless all its stockholders\\nare residents of Tennessee. Id. at 2457. The Sixth Circuit had previously found that provision\\nfacially discriminatory and affirmed that it violated the dormant Commerce Clause. Byrd v.\\nTennessee Wine & Spirits Retailers Ass’n, 883 F.3d 608, 626, 628 (6th Cir.), cert. granted, 139\\nS. Ct. 52 (2018), and aff’d sub nom. Tennessee Wine, 139 S. Ct. 2449. The provision was not\\nat issue in Tennessee Wine, but the majority commented on its discriminatory nature and its\\npractical effect. The Court referred to the 100-percent-resident shareholder requirement as\\na “blatant” violation of the Commerce Clause. Id. at 2457. The Court also noted that the\\npractical effect of the provision was that “no corporation whose stock is publicly traded may\\noperate a liquor store in the State.” Id. But the Court did not say more on that point. Con-\\ncluding the opinion, the majority added that “the predominant effect” of the 100-percent-\\nresident shareholder provision was to protect members of the Tennessee Wine and Spirits\\nRetailers Association from out-of-state competition. Id. at 2476. The dicta in that opinion\\nleaves many questions to be answered. Was the predominant effect of the provision protec-\\ntionism because it was facially discriminatory or because of its practical effect? The Tennes-\\nsee laws were all facially discriminatory, so the Court never conducted a discriminatory effect\\nanalysis. As this court has previously noted, “jurisprudence in the area of the dormant Com-\\nmerce Clause is, quite simply, a mess.” Churchill Downs, 589 F. App’x at 235. Because of the\\nambiguity in the dicta from Tennessee Wine, we decline to conclude that the Court meant to\\nalter the discriminatory effect analysis when specifically considering a general public corpo-\\nration ban. Exxon remains the controlling Supreme Court precedent.\\n 19\\n\\f Case: 18-50299 Document: 00515078735 Page: 20 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n D.\\n The district court analyzed another means by which it concluded could\\ninvalidate a statute under the dormant Commerce Clause even if the statute\\ndid not discriminate facially, in purpose or in effect. The district court con-\\ncluded that “a law that does not directly discriminate against interstate com-\\nmerce” can still violate the dormant Commerce Clause if it imposes a burden\\non interstate commerce that is “clearly excessive” in relation to the “putative\\nlocal benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). The dis-\\ntrict court determined that § 22.16 violates the dormant Commerce Clause un-\\nder the Pike test. We conclude that remand is needed on this ground as well.\\n A court should consider: (1) whether the law burdens interstate com-\\nmerce; 22 (2) whether there is a “legitimate local interest” in the law; 23 and (3)\\nwhen both are present, if the extent of the burden should be tolerated based on\\nthe local interest involved, including if the interest “could be promoted as well\\nwith a lesser impact on interstate activities.” 24 The inquiry is known as the\\nPike balancing test. Churchill Downs, 589 F. App’x at 237. When applying the\\nPike test in this context, “[a] statute imposes a burden when it inhibits the flow\\nof goods interstate.” Allstate, 495 F.3d 151. Having already held that the public\\ncorporation ban was enacted with a purpose to discriminate, the district court\\nfurther concluded that “the burden imposed on [interstate] commerce” by the\\npublic corporation ban “is clearly excessive in relation to the putative local ben-\\nefits.” Pike, 397 U.S. at 142.\\n\\n\\n\\n\\n 22 Pike, 397 U.S. at 142.\\n 23 Id.\\n 24 Id. (emphasis added).\\n\\n 20\\n\\f Case: 18-50299 Document: 00515078735 Page: 21 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n Appellants argue that the Pike test does not apply to a nondiscriminatory\\nregulation of alcohol beverage retailing under the Twenty-first Amendment. 25\\nWalmart contends that the controlling case law is clear that Pike can be ap-\\nplied to alcohol-related laws despite the Twenty-first Amendment.\\n The Supreme Court has not considered the issue. Further, none of our\\nsister circuits have struck down a state regulation of liquor under Pike while\\nalso concluding that the Twenty-first Amendment applied. See Lebamoff En-\\nterprises, Inc. v. Huskey, 666 F.3d 455, 467 (7th Cir. 2012) (Hamilton, J., con-\\ncurring) (“What we do not find is a case applying Pike balancing and holding\\nthat a non-discriminatory state alcohol law flunks.”). Compare Baude v. Heath,\\n538 F.3d 608 (7th Cir. 2008) (striking down statute that was discriminatory in\\neffect while citing Pike without addressing the Twenty-first Amendment) with\\nLebamoff, 666 F.3d at 468 (Hamilton, J., concurring) (“The Baude opinion does\\nnot, however, provide a persuasive basis for applying Pike balancing to non-\\ndiscriminatory state alcohol laws.”). Application of Pike in the face of § 2 of the\\nTwenty-first Amendment is questionable in light of the Court’s recent declara-\\ntion that states “remai[n] free to pursue” legitimate interests aimed at regu-\\nlating the ill-effects and risks associated with the alcohol trade. Tennessee\\nWine, 139 S. Ct. at 2472 (alteration in original) (quotation marks omitted). 26\\n\\n\\n\\n 25 The TPSA asserts that Walmart failed to litigate Pike in the district court. However,\\nPike was either cited or raised by the parties numerous times during the district court pro-\\nceedings. Walmart did not waive the Pike issue.\\n 26 This is also true in light of the Court’s acknowledgement that three-tier systems for\\n\\nthe control and distribution of alcohol are “unquestionably legitimate.” Granholm, 544 U.S.\\nat 488–89 (quotation marks omitted). Various nondiscriminatory laws passed under three-\\ntier systems place at least some burden on interstate commerce. Pike balancing might be\\ndecisive in many cases. See Lebamoff, 666 F.3d at 469 (Hamilton, J., concurring). Granting\\ncourts the power to substitute a legislature’s policy considerations with its own when consid-\\nering nondiscriminatory alcohol-related laws seems to be in direct tension with state power\\ngranted by § 2. Such tension lends support for Justice Scalia’s contention that the Pike “in-\\nquiry is ill suited to the judicial function and should be undertaken rarely if at all.” CTS Corp.\\nv. Dynamics Corp. of Am., 481 U.S. 69, 95 (1987) (concurring).\\n 21\\n\\f Case: 18-50299 Document: 00515078735 Page: 22 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n However, in Tennessee Wine, the Court “reiterate[d] that the Commerce\\nClause by its own force restricts state protectionism.” 139 S. Ct. at 2461 (em-\\nphasis added). While that is an ambiguous statement from a case involving a\\nfacially discriminatory provision, it is a signal that we need not get ahead of\\nthe Court by concluding that Pike balancing cannot be applied to a facially\\nneutral regulation of alcohol retailing. 27 So we proceed with the test.\\n The inquiry ends at our first step in the analysis. The district court de-\\ntermined that the public corporation ban places a substantial burden on inter-\\nstate commerce because it protects package stores owned by Texas residents\\nfrom out-of-state market entrants. The district court relied on evidence that\\n98% of the package stores in Texas are owned by in-state residents. Addition-\\nally, Walmart provided evidence that numerous out-of-state companies would\\nenter the Texas liquor retail market if the ban was not in place. Appellants\\nargued that the ban places an equal burden on in-state companies, presenting\\nevidence that the number of publicly traded companies domiciled in Texas that\\nare barred by the ban is roughly proportional to Texas’ share of the national\\npopulation and national economy. The district court rejected appellants’ evi-\\ndence and declared that “assessing disparate impact requires the Court to\\nmeasure the effect the public corporation ban has on the in-state and out-of-\\nstate companies that would otherwise serve the market if not for the ban.”\\nThere is no authority which supports that conclusion.\\n The district court’s analysis overlooks the controlling precedent. In\\nExxon, the Court instructed that the Commerce “Clause protects the interstate\\n\\n\\n\\n 27 The Court has cited Pike in dormant Commerce Clause cases involving alcohol-re-\\nlated laws. See Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573,\\n579 (1986) (evaluating the constitutionality of state’s lowest-price affirmation provision of\\nalcohol control law); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 270 (1984) (considering the\\nconstitutionality of a liquor excise tax). In the absence of controlling authority, we will not\\nexempt an entire category of laws from the Pike test.\\n 22\\n\\f Case: 18-50299 Document: 00515078735 Page: 23 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nmarket, not particular interstate firms.” Exxon, 437 U.S. at 128 (emphases\\nadded). The Court explained that interstate commerce is not “subjected to an\\nimpermissible burden” because some potential participants are shifted out of\\nthe in-state market. Id. at 127. 28 As noted in Allstate, “[t]he Supreme Court\\nhas ‘rejected the notion that the Commerce Clause protects the particular\\nstructure or methods of operation in a . . . market.’” Allstate, 495 F.3d at 163–\\n64 (quoting CTS Corp., 481 U.S. at 93–94). In that case, this court rejected the\\nassertion that there was a substantial burden on interstate commerce, in part\\nbecause the Texas law in question did not prohibit interstate economic actors\\nfrom entering the in-state market. Id. at 164 (rejecting assertion that a com-\\npany’s inability to expand imposes a burden on interstate commerce). Similar\\nto Allstate, appellants in the present case have provided evidence that several\\npackage stores in Texas are owned and operated by out-of-state residents. See\\nid. (finding the same).\\n The district court should have considered evidence addressing the public\\ncorporation ban’s effect on the flow of interstate goods, or how the ban affects\\nthe flow of the potential market participant’s goods to the Texas liquor retail\\nmarket. See id. at 163 (“A statute imposes a burden when it inhibits the flow\\nof goods interstate.”); Ford, 264 F.3d at 503 (finding the plaintiff “failed to\\ndemonstrate that [the statute] will burden commerce by inhibiting the flow of\\ninterstate goods”); see also Exxon, 437 U.S. at 126 n.16 (“If the effect of a state\\n\\n\\n\\n 28 Walmart incorrectly asserts that Lewis v. BT Inv. Managers, Inc., informs the Pike\\ninquiry in this case. 447 U.S. 27 (1980). The Court made it clear that the prohibition in that\\ncase discriminated among similarly situated business entities according to their contact with\\nthe local state economy. See id. at 42 (“It follows that [the statue] discriminates among af-\\nfected business entities according to the extent of their contacts with the local economy. The\\nabsence of a similar discrimination between interstate and local producer-refiners was a most\\ncritical factor in Exxon.”) (emphasis in original). The Court determined that the statute had\\na discriminatory effect but concluded that it failed the Pike test. Id. Again, Exxon, Ford, and\\nAllstate are controlling in this case.\\n 23\\n\\f Case: 18-50299 Document: 00515078735 Page: 24 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nregulation is to cause local goods to constitute a larger share, and goods with\\nan out-of-state source to constitute a smaller share, of the total sales in the\\nmarket . . . the regulation may have a discriminatory effect on interstate com-\\nmerce.”). The record is devoid of such evidence. Therefore, a remand is neces-\\nsary to allow the trial court to find facts for proper application of the Pike test. 29\\n We vacate the portion of the district court’s judgment that the public\\ncorporation ban violates the dormant Commerce Clause because remand is\\nwarranted on two separate grounds.\\n E.\\n The district court also determined that the public corporation ban does\\nnot violate the Equal Protection Clause because the ban is rationally related\\nto the state’s legitimate purpose of reducing the availability and consumption\\nof liquor throughout Texas. Walmart argues that (1) heightened scrutiny\\nshould apply to the ban because the law imposes an “absolute deprivation” of\\na benefit due to the applicant’s supposed wealth; and (2) the ban has the hall-\\nmarks of “animus” against public corporations. Walmart adds that the ban is\\nalso irrational. Appellants argue that the public corporation ban is an economic\\nregulation that is not subject to heightened review and clearly survives ra-\\ntional basis review. We agree with the latter.\\n Under the Equal Protection Clause of the Fourteenth Amendment, “[n]o\\nState shall . . . deny to any person within its jurisdiction the equal protection\\nof the laws.” U.S. Const. amend. XIV, § 1. Walmart has failed to provide sup-\\nport for its assertion that a general ban on public corporations warrants height-\\nened scrutiny. 30 Walmart is not a member of a protected class and the public\\n\\n\\n 29 The district court also found that the public corporation ban is rationally related to\\na legitimate state interest. However, because there is not a sufficient factual record to weigh\\nagainst the state interest, we do not consider the issue at this time. A remand is warranted.\\n 30 Walmart’s contention, that the ban was enacted with animus toward public corpo-\\n\\nrations generally and animus toward Walmart specifically, may be true. However, Walmart\\n 24\\n\\f Case: 18-50299 Document: 00515078735 Page: 25 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\ncorporation ban does not infringe upon a fundamental right. Therefore, we ap-\\nply a rational basis review. Hines v. Alldredge, 783 F.3d 197, 202–03 (5th Cir.\\n2015). “Under this standard, a legislative classification ‘must be upheld\\nagainst equal protection challenge if there is any reasonably conceivable state\\nof facts that could provide a rational basis for the classification.’” Glass v. Pax-\\nton, 900 F.3d 233, 244–45 (5th Cir. 2018) (quoting FCC v. Beach Commc’ns,\\nInc., 508 U.S. 307, 313 (1993)). The parties challenging the “presumption of\\nvalidity” granted to legislative classifications must negate every conceivable\\nbasis which might support the legislation. Id. at 245.\\n Rational basis review is fact intensive. The review “places no affirmative\\nevidentiary burden on the government, [but] plaintiffs may nonetheless negate\\na seemingly plausible basis for the law by adducing evidence of irrationality.”\\nSt. Joseph Abbey v. Castille, 712 F.3d 215, 223 (5th Cir. 2013). While a “hypo-\\nthetical rationale” is acceptable, it “cannot be fantasy.” Id. The government\\naction “must rationally relate to the state interests it articulates.” Id. “[W]e\\nwill examine the State[’s] rationale informed by the setting and history of the\\nchallenged rule.” Id.\\n The district court determined that the public corporation ban is conceiv-\\nably related to Texas’ legitimate purpose to reduce the availability and con-\\nsumption of liquor. On appeal, Walmart contends that this conclusion was\\nmade up of “hypothetical . . . lawful links.” Walmart adds that allowing the ban\\nwould “justify banning any group the Legislature might conceivably believe\\n\\n\\n\\n\\nhas failed to provide a single case indicating that heightened scrutiny should be applied to\\nsuch an Equal Protection Claim. Walmart cites Bishop v. Smith. 760 F.3d 1070, 1099–1100\\n(10th Cir. 2014) (Holmes, J., concurring). However, Bishop did not involve an application of\\nheightened scrutiny based on animus toward corporations. Walmart has also failed to provide\\nsupport for its contention that a corporation’s perceived wealth warrants inclusion in a pro-\\ntected class.\\n 25\\n\\f Case: 18-50299 Document: 00515078735 Page: 26 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nwould be more successful at retail” and the hypothetical is “contrary to basic\\neconomic truth.” Walmart’s pleas are unavailing.\\n Walmart does not dispute that Texas has a legitimate interest in regu-\\nlating the consumption of liquor and limiting the effects of liquor-related ex-\\nternalities. The state could believe that excluding public corporations reduces\\nboth the total number of package store firms and overall liquor consumption,\\ndriving up prices. Relatedly, it is more than reasonable to assume that the\\nstate believed that public corporations have the capital and scale to offer liquor\\nwell below current prices. In fact, that assumption was included in Walmart’s\\nargument that the public corporation ban keeps liquor prices “artificially high”\\nand forces consumers to pay “non-competitive prices.” Walmart’s own argu-\\nments support the district court’s conclusion. Walmart has not negated the\\ntheory that excluding public corporations from the liquor retail market in-\\ncreases prices. We conclude that there is a rational basis for Texas’ decision to\\nban all public corporations from obtaining P permits. The public corporation\\nban does not violate the Equal Protection Clause.\\n F.\\n While this appeal was pending, the governor of Texas signed into law\\nHouse Bill 1545. Section 82 of the bill raises the five P permit limit created by\\nTex. Alco. Bev. Code § 22.04, to 250 P permits. A permittee may obtain up to\\n15 original P permits each year, and an unlimited number of permits pur-\\nchased from already-existing stores. Section 85 of the bill repeals Tex. Alco.\\nBev. Code § 22.05, the consanguinity exception to the five-permit limit. The bill\\ntakes effect on September 1, 2019. Tex. H.B. 1545, §§ 82, 84. Walmart now\\nseeks to withdraw its challenges to §§ 22.04 and 22.05, and has requested that\\nwe vacate the district court’s judgment in its favor with respect to those chal-\\nlenges. The parties agree that we should vacate the district court’s judgment\\n\\n\\n 26\\n\\f Case: 18-50299 Document: 00515078735 Page: 27 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nin Walmart’s favor with respect to those challenges. 31 Accordingly, we do not\\naddress Walmart’s challenges to §§ 22.04 and 22.05. The challenges are with-\\ndrawn. Remand is warranted in this case, and we leave for the district court to\\nconsider in the first instance whether the judgment in favor of Walmart with\\nrespect to §§ 22.04 and 22.05 should be vacated.\\n IV. Conclusion\\n For the reasons stated above, the district court’s judgment enjoining en-\\nforcement of § 22.16 is VACATED. The district court’s judgment that § 22.16\\ndoes not violate the Equal Protection Clause is AFFIRMED. The district court’s\\njudgment that § 22.16 offends the dormant Commerce Clause is VACATED\\nand REMANDED for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 31 Walmart did not file a motion but made its request in a Federal Rule of Appellate\\nProcedure 28(j) letter submitted to this court on June 17, 2019. On June 19, 2019, the TPSA\\nsubmitted a response to the 28(j) letter agreeing with Walmart. The TABC submitted a re-\\nsponse on June 20, 2019, agreeing that the district court’s judgment should be vacated.\\n\\n 27\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426066/\", \"author_raw\": \"JAMES E. GRAVES, JR., Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"HAYNES"},"judge3":{"kind":"string","value":"GRAVES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648813/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: WAL-MART STORES, INCORPORATED; Wal-Mart Stores Texas, L.L.C.; Sam's East, Incorporated; Quality Licensing Corporation, Plaintiffs - Appellees Cross-Appellants v. TEXAS ALCOHOLIC BEVERAGE COMMISSION; Kevin Lilly, Presiding Officer of the Texas Alcoholic Beverage Commission; Ida Clement Steen, Defendants - Appellants Cross-Appellees Texas Package Stores Association, Incorporated, Movant - Appellant Cross-Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50299 Document: 00515078735 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n August 15, 2019\n No. 18-50299\n Lyle W. Cayce\n Clerk\n\nWAL-MART STORES, INCORPORATED; WAL-MART STORES TEXAS,\nL.L.C; SAM'S EAST, INCORPORATED; QUALITY LICENSING CORPORA-\nTION,\n\n Plaintiffs - Appellees Cross-Appellants\n\nv.\n\nTEXAS ALCOHOLIC BEVERAGE COMMISSION; KEVIN LILLY, Presiding\nOfficer of the Texas Alcoholic Beverage Commission; IDA CLEMENT\nSTEEN,\n\n Defendants - Appellants Cross-Appellees\n\nTEXAS PACKAGE STORES ASSOCIATION, INCORPORATED,\n\n Movant - Appellant Cross-Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore DAVIS, HAYNES, and GRAVES, Circuit Judges.\nJAMES E. GRAVES, JR., Circuit Judge:\n Plaintiff-Appellee Wal-Mart Stores, Incorporated and three of its subsid-\niaries (collectively, “Walmart”), brought 42 U.S.C. § 1983 claims against the\nTexas Alcoholic Beverage Commission and three of its commissioners (collec-\ntively, the “TABC”), to challenge four Texas statutes (Tex. Alco. Bev. Code §§\n\f Case: 18-50299 Document: 00515078735 Page: 2 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n22.04, 22.05, 22.06, 22.16) 1 that govern the issuances of permits that allow for\nthe retail sale of liquor in Texas (called “package store” permits, or “P per-\nmits”). Section 22.16 prohibits public corporations from obtaining P permits in\nTexas. Walmart argued that the ban violates the dormant Commerce Clause\nof the United States Constitution and the Equal Protection Clause of the Four-\nteenth Amendment. Later, we granted the Texas Package Store Association’s\n(“TPSA”) motion to intervene as a matter of right, in defense of the statutes.\nSee Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562 (5th\nCir. 2016).\n We now consider the TABC and TPSA’s (“appellants”) appeal of the dis-\ntrict court’s conclusion that the public corporation ban offends the dormant\nCommerce Clause, and Walmart’s cross-appeal of the district court’s determi-\nnation that the public corporation ban does not violate the Equal Protection\nClause. We affirm the part of the district court’s judgment rejecting Walmart’s\nEqual Protection challenge to the public corporation ban. Conversely, because\nthe district court erred in its findings regarding the discriminatory nature and\nburden imposed by the public corporation ban, Walmart’s dormant Commerce\nClause challenge to § 22.16 is remanded.\n I. Facts\n A.\n Texas regulates the sale and importation of alcoholic beverages through\na three-tier system that requires separate licenses and permits for producers,\nwholesalers, and retailers who meet certain eligibility requirements. See Wine\nCountry Gift Baskets.com v. Steen, 612 F.3d 809, 818–19 (5th Cir. 2010) (noting\nthat Texas has a three-tier system “in which producers sell to state-licensed\nwholesalers, who sell to state-licensed retailers”). Liquor retailers must obtain\n\n\n 1 Walmart’s challenge to Tex. Alco. Bev. Code § 22.06 is not at issue on appeal.\n 2\n\f Case: 18-50299 Document: 00515078735 Page: 3 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\na separate permit for each physical location where liquor is sold for off-prem-\nises consumption. The permits authorize an unlimited volume of sales from the\npermitted location. The TABC is the state agency responsible for issuing per-\nmits and enforcing the Texas Alcoholic Beverage Code. The TPSA is the trade\nassociation of Texas package stores that are majority-owned by Texans.\n There is one permit relevant to this appeal. P permits authorize the sale\nof liquor, wine, and ale for off-premises consumption. Tex. Alco. Bev. Code §\n22.01. Texas liquor stores must hold a P permit.\n At the time of this litigation, there were 2,578 active P permits issued by\nthe TABC, and 574 were owned by a package store chain (a business holding\nsix or more P permits). There were 21 active package store chains. Since 1944,\npackage store chains have grown in size and volume of sales, although the total\nnumber of package stores has remained approximately the same. The package\nstore chains have a significant share of the Texas market, but it is not clear\nhow much. The largest package store chains control seven of the nine seats on\nthe TPSA’s executive committee.\n B.\n Texas’ public corporation ban proscribes “any entity which is directly or\nindirectly owned or controlled, in whole or in part, by a public corporation”\nfrom obtaining a P permit. Tex. Alco. Bev. Code § 22.16(a). The statute defines\na “public corporation” as a corporation “whose shares . . . are listed on a public\nstock exchange” or “in which more than 35 persons hold an ownership inter-\nest.” Id. § 22.16(b). Public corporations can hold any of the other seventy-five\ntypes of alcohol permits that Texas issues.\n\n\n\n\n 3\n\f Case: 18-50299 Document: 00515078735 Page: 4 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n Walmart is a retailer that is the largest public company in the world. 2\nOperating approximately 5,000 stores in the U.S., Walmart currently sells beer\nor wine in forty-seven states, including 668 locations in Texas, and liquor in\nthirty-one states. Walmart’s goal is to increase its sales and profits from alco-\nholic beverages in Texas. Walmart has plans to open liquor stores adjacent to\nsome of its existing Texas retail locations. However, because it is a publicly\ntraded corporation without a majority shareholder, Walmart cannot imple-\nment its plan unless the public corporation ban is invalidated.\n Walmart unsuccessfully lobbied the Texas Legislature to repeal § 22.16. 3\nAfter its failed attempt to obtain a legislative remedy, Walmart sued the TABC\nin federal court to have the judiciary neutralize the public corporation ban, and\nthis court subsequently granted the TPSA’s motion to intervene.\n After a week-long bench trail, the district court concluded, inter alia, that\nthe public corporation ban: (1) has a discriminatory purpose and the ban’s bur-\nden on interstate commerce is clearly excessive when compared to the local\nbenefits, and (2) does not violate the Equal Protection Clause. The district\ncourt enjoined the TABC from enforcing the public corporation ban. This ap-\npeal and cross-appeal followed. We consider whether the public corporation\nban is unconstitutional under the dormant Commerce Clause and the Equal\nProtection Clause. 4\n\n\n\n\n 2 As of 2018, Walmart had consolidated revenue of over $500 billion, making it the\nlargest company in the world. Fortune 500 Companies 2018: Who Made the List, FORTUNE\nMAG. (May 21, 2018), http://fortune.com/global500/.\n 3 Along with the other aforementioned statutes that we do not address at this time.\n 4 The district court exercised subject matter jurisdiction over this case based on federal\n\nquestion jurisdiction under 28 U.S.C. § 1331. We have jurisdiction over this appeal pursuant\nto 28 U.S.C. § 1291.\n 4\n\f Case: 18-50299 Document: 00515078735 Page: 5 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n II. Standards of Review\n We review a district court’s judgment regarding the constitutionally of a\nstatute de novo. Allstate Ins. Co. v. Abbott, 495 F.3d 151, 160 (5th Cir. 2007).\nThe district court’s findings of fact relevant to the constitutional question are\nreviewed for clear error. Id. Because this case involves a dormant Commerce\nClause challenge, one threshold issue is whether the public corporation ban\nwas enacted with the purpose to discriminate against interstate commerce. Id.\nat 160–62. In Allstate, this court applied the Arlington 5 factors to determine\nwhether purposeful discrimination inspired a state legislature’s actions in vio-\nlation of the dormant Commerce Clause. 6 Therefore, we do the same. 7 “[A] dis-\ntrict court’s finding of fact on the question of discriminatory intent is reviewed\nfor clear error.” Abbott v. Perez, 138 S. Ct. 2305, 2326 (2018). “If the district\ncourt’s findings are plausible in light of the record viewed in its entirety, we\nmust accept them, even though we might have weighed the evidence differently\nif we had been sitting as a trier of fact.” Veasey v. Abbott, 830 F.3d 216, 229\n(5th Cir. 2016) (en banc) (quotation marks omitted). “However, when the dis-\ntrict court’s ‘findings are infirm because of an erroneous view of the law, a re-\nmand is the proper course unless the record permits only one resolution of the\nfactual issue.’” Id. (quoting Pullman–Standard v. Swint, 456 U.S. 273, 292\n(1982)). In the latter case, we should reverse and render a decision. Id.\n\n\n\n\n 5 See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266–\n68 (1977).\n 6 Allstate, 495 F.3d at 160.\n 7 Although it is debatable whether the Arlington factors should be applied when con-\n\nsidering whether purposeful discrimination motivated legislative action in a dormant Com-\nmerce Clause case, given our well-established rule that one panel of the Fifth Circuit cannot\noverrule the prior decision of another panel, we need not consider arguments challenging\napplication of the factors to this case. See Gardes Directional Drilling v. U.S. Turnkey Expl.\nCo., 98 F.3d 860, 868 (5th Cir. 1996) (citing Broussard v. Southern Pac. Transp. Co., 665 F.2d\n1387, 1389 (1982) (en banc)).\n 5\n\f Case: 18-50299 Document: 00515078735 Page: 6 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n III. Challenges\n A.\n The Supreme Court has long held that the Commerce Clause “prohibits\nstate laws that unduly restrict interstate commerce.” Tennessee Wine & Spirits\nRetailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019). This interpretation is\nknown as the dormant Commerce Clause. “‘This negative aspect of the Com-\nmerce Clause’ prevents the States from adopting protectionist measures and\nthus preserves a national market for goods and services.” Tennessee Wine, 139\nS. Ct. at 2459 (quoting New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273\n(1988)).\n “A statute violates the dormant Commerce Clause where it discriminates\nagainst interstate commerce either facially, by purpose, or by effect.” Allstate,\n495 F.3d at 160. Given that this case involves a law that regulates liquor re-\ntailers, the dormant Commerce Clause analysis must be considered in light of\nthe Twenty-first Amendment. Section 2 of the Amendment grants states the\nauthority to regulate the transportation, importation, possession, and use of\nalcohol within their own borders. See U.S. Const. amend. XXI, § 2.\n Recently, in Tennessee Wine, the Court reaffirmed what this court had\npreviously concluded: 8 Section 2 does not grant states the power to violate the\n“nondiscrimination principle” of the dormant Commerce Clause. 139 S. Ct. at\n2470 (citing Granholm v. Heald, 544 U.S. 460, 487 (2005)). The Court acknowl-\nedged that, under § 2, states “remai[n] free to pursue their legitimate interests”\nin addressing the health and safety risks associated with the alcohol trade. Id.\nat 2472 (alteration in original) (quotation marks omitted). Therefore, “each\nvariation [of law] must be judged based on its own features.” Id.\n\n\n 8 In Cooper II, this court rejected the TPSA’s assertion that Commerce Clause protec-\ntions do not apply to state alcohol laws regulating the retailers and wholesalers in a three-\ntier system. 820 F.3d at 743.\n 6\n\f Case: 18-50299 Document: 00515078735 Page: 7 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n The Court clarified the standard for evaluating a discriminatory alcohol-\nrelated regulation, charging courts to “ask whether the challenged [discrimi-\nnatory] requirement can be justified as a public health or safety measure or on\nsome other legitimate nonprotectionist ground.” Id. at 2474. The standard has\nteeth. “[M]ere speculation” or “unsupported assertions” of fact are insufficient\nto validate an otherwise discriminatory law. Id. If the “predominant effect” of\nthe discriminatory law is protectionism and not “the protection of public health\nor safety,” the law is not shielded by § 2. Id. at 2474. In conducting the inquiry,\ncourts must look for “concrete evidence” that the statute “actually promotes\npublic health or safety,” or evidence that “nondiscriminatory alternatives\nwould be insufficient to further those interests.” Id.\n Section 22.16 is a facially neutral statute that bans all public corpora-\ntions from obtaining P permits irrespective of domicile. Therefore, we focus on\nwhether the ban was enacted with a discriminatory purpose or has a discrimi-\nnatory effect on interstate commerce.\n B.\n Although the district court correctly cited the Arlington framework, some\nof its discriminatory purpose “findings are infirm.” Veasey, 830 F.3d at 230\n(quotation marks omitted). The record does not support “only one resolution of\nthe factual issue,” as there is evidence that could support the district court’s\nfinding of a purpose to discriminate, so we must remand for a reweighing of\nthe evidence on that issue. Id.\n “The burden of establishing that a challenged statute has a discrimina-\ntory purpose under the Commerce Clause falls on the party challenging the\nprovision.” Allstate, 495 F.3d at 160. We consider the following non-exhaustive\nfactors when determining whether a state legislature’s actions amount to pur-\nposeful discrimination against interstate commerce: (1) whether the effect of\nthe state action creates a clear pattern of discrimination; (2) the historical\n 7\n\f Case: 18-50299 Document: 00515078735 Page: 8 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nbackground of the action, which may include any history of discrimination by\nthe decisionmakers; (3) the “specific sequence of events leading up” to the chal-\nlenged state action, including (4) any “departures from normal procedures[;]”\nand (5) “the legislative or administrative history of the state action, including\ncontemporary statements by decisionmakers.” Id. Legislators’ awareness of a\ndiscriminatory effect “is not enough: the law must be passed because of” that\ndiscriminatory effect. Veasey, 830 F.3d at 231 (applying the Arlington factors).\nThe challenger must show that the discriminatory effect was “a substantial or\nmotivating factor” leading to the enactment of the statute. Id. (quotation marks\nomitted). If the challenger meets that burden, defendants must “demonstrate\nthat the law would have been enacted without this factor.” Id.\n First, the district court properly found that Texas has a clear history of\ndiscriminating against out-of-state alcohol retailers. From the passage of its\nLiquor Control Act in 1935, Texas had prohibited out-of-state individuals and\ncompanies from owning package stores. In Cooper v. McBeath, this court inval-\nidated Texas laws imposing durational residency requirements on alcohol re-\ntail store owners. 11 F.3d 547 (5th Cir. 1994) (Cooper I). While Cooper I was\npending, the Texas Legislature enacted House Bill 1445, in an attempt to moot\nthe Cooper I litigation. The bill repealed the residency requirements at issue\nin the case. Texas kept durational residency requirements for other permits.\nSoon after the governor of Texas signed the bill, the Cooper I plaintiffs moved\nto dismiss the appeal as moot. However, this court denied the motion and is-\nsued an opinion striking down the residency requirements, with language\nbroad enough to apply to all the alcohol permits. Id. at 550–51, 554. Despite\nthe Cooper I decision, Texas enforced durational residency requirements as ap-\nplied to P permits for another twelve years—stopping enforcement only after\nthe practice was permanently enjoined by a federal district court. S. Wine &\nSpirits of Texas, Inc. v. Steen, 486 F. Supp. 2d 626, 633 (W.D. Tex. 2007). The\n 8\n\f Case: 18-50299 Document: 00515078735 Page: 9 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nevidence relied on by the district court was “not long past history.” Veasey, 830\nF.3d at 232. Texas decisionmakers have a history of discrimination. 9\n Addressing a second factor, the district court erred in finding that the\nlegislative history of § 22.16 includes direct evidence of a purpose to discrimi-\nnate against interstate commerce. The district court made much of the fact\nthat § 22.16 was enacted in 1995, one year after Cooper I. A lawyer and lobbyist\nwho worked on behalf of the TPSA drafted the corporation ban. The TPSA,\nwhich had vigorously defended the residency requirements struck down by this\ncourt, later admitted that there was a fear that “large stores could disrupt what\nhad been a very stable business climate” and there could be a “Wal-Martiza-\ntion” of the Texas package store market. Further, the Texas legislature was\naware that, but for the Cooper I decision, the TPSA would not have suggested\nand supported the public corporation ban.\n Based largely on those findings regarding the conduct and motivations\nof the TPSA, the district court concluded that the Texas legislature enacted the\npublic corporation ban with the same protectionist motivations. This despite\nthe provision’s drafter testifying that he told legislators the purpose of the bill\nwas accountability. He was the only witness at the committee hearings and\ntold the legislators that the purpose of the bill was to promote accountability,\nor “to have real human beings who are easily identifiable, who are close to the\nbusiness, and who ultimately bear personal responsibility for the actions of the\npackage store.” Years later—at trial—he admitted that he “knew that any bill\n[enacted] might be challenged” and that his “assignment was to craft a bill\nwhich . . . would survive a commerce clause challenge.” The district court de-\ntermined that the “TPSA’s chief concern was maintaining the business climate\n\n\n\n 9 Walmart also argues that actions taken by the TPSA evidence a history of discrimi-\nnation. However, the actions of the TPSA do not control this inquiry.\n 9\n\f Case: 18-50299 Document: 00515078735 Page: 10 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\ncreated by the residency requirement,” and that the legitimate rationales con-\ncerning accountability were “pretextual.” However, in Veasey, we reiterated\nthat overreliance on “post-enactment testimony” from actual legislators is\nproblematic, and not “the best indicia of the Texas Legislature’s intent.” Ve-\nasey, 830 F.3d at 234. In light of Veasey, after-the-fact statements made by a\nnon-legislator are certainly not sufficient indicia of legislative intent.\n The district court did not find evidence connecting any Texas legislator\nto the conclusion that the accountability rationale was pretextual. The only\ncomments from a Texas legislator the district court relied on were made by\nstate Senator Kenneth Armbrister. When asked to explain the purpose of the\npublic corporation ban, Armbrister stated that the ban meant “you can’t have\na package store inside a Walmart” and “Walmart can’t own the package store.”\nAs the district court noted, during the senate floor debate on Senate Bill 1063\n(which became § 22.16), Armbrister agreed with state Senator Henderson’s re-\nmark that the Legislature “wanted to have somebody from Texas with a license\nthat you could get ahold of . . . to enforce the code.”\n However, the district court did not provide the context of the senators’\nstatements. Armbrister and Henderson were engaged in a discussion about the\nmotivation for the public corporation ban when Armbrister stated that the pur-\npose was to have a better way to “track” package store owners. Specifically,\nArmbrister stated, “I think what” both “the industry . . . and the [TABC] was\ntrying to do is a better tracking system, because . . . you’ve got large-scale cor-\nporations that operate . . . it all ties in to(sic) the operation phase.” Henderson\nreplied by explaining that a corporation could own a package store by obtaining\nthe permit through a local licensee (presumably because Texas previously had\nenforceable durational-residency requirements), referring to the mechanism\nemployed by corporations as a “fake-a-roo.” Next, Armbrister attempted to ex-\nplain some exemptions to the ban when Henderson replied that the “fake-a-\n 10\n\f Case: 18-50299 Document: 00515078735 Page: 11 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nroo” was used because the legislators previously wanted only people from\nTexas to hold P permits “to enforce the code.”\n Significantly, Henderson asked Armbrister, “It’s not the bill . . . that\nkeeps foreign ownership from coming in and . . . getting licenses, that kind of\nthing?” (emphasis added). To which Armbrister answered, “No. Those . . . both\nthose bills are still pending in committee.” Henderson replied, “Good. Thank\nyou.” Near the close of the floor debate, the Texas Senate voted to pass the bill.\nThe floor debate was devoid of discriminatory remarks directed toward out-of-\nstate competition generally. The transcript reveals that there were entirely\nseparate bills being advanced to address foreign owners. Moreover, the “Expla-\nnations and Arguments” in support of Senate Bill 1063 indicate that the reason\nfor the ban was to ensure that owners were known to the community and “could\nbe held accountable for responsible operation.” The document further states,\n“Courts have recently struck down . . . Texas resident law saying that it penal-\nized out of state citizens” but there remained a need to have a human who is\neasily identifiable and responsible for the actions of a given package store busi-\nness. The legislative history is merely “evidence of a legislative desire to treat\ndifferently two business forms . . . a distinction based not on domicile but on\nbusiness form.” Allstate, 495 F.3d at 161.\n There is no direct evidence of a discriminatory purpose in the legislative\nhistory; Plaintiffs rely on circumstantial evidence. The motivations and lobby-\ning efforts of the TPSA are not direct evidence of legislative purpose. An ad-\nmission that the drafter sought to create a law that would survive a constitu-\ntional challenge is not evidence of a discriminatory legislative purpose. There\nare no “stray protectionist remarks” in the legislative history, and even if there\nwere, such remarks “are insufficient to condemn” an otherwise nondiscrimina-\ntory statute. Id.\n\n\n 11\n\f Case: 18-50299 Document: 00515078735 Page: 12 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n Turning to a third factor, the district court failed to apply the “presump-\ntion of legislative good faith” in finding that the sequence of events that led to\nthe enactment of § 22.16 evidences a discriminatory purpose. Perez, 138 S. Ct.\nat 2324. In line with the district court, Walmart relies on the Texas Legisla-\nture’s failed attempt to moot Cooper I during the 1993 session and the Legis-\nlature’s enactment of the public corporation ban during the 1995 session. The\nTABC argues that it is irrelevant that the corporation ban was enacted in re-\nsponse to Cooper I. TPSA argues that the district court’s conclusion based in\npart on post-Cooper I conduct is inconsistent with controlling case law.\n In Perez, the Supreme Court made it clear that “[t]he allocation of the\nburden of proof and the presumption of legislative good faith are not changed\nby a finding of past discrimination.” Id. at 2324. Past discrimination is merely\none potential evidentiary source. Id. The district court specifically found that\n“if not for the Fifth Circuit striking down Texas’s residency requirement, TPSA\nwould not have proposed, and the Legislature would not have enacted, the ban\non public corporations holding package store permits.”\n While that finding might be true, there are problems with concluding\nthose events evidence a purpose to discriminate. As stated previously, the\nTPSA’s motivations and actions are not sufficient indicia of legislative intent.\nAs a result, the only remaining evidence is the Texas Legislature’s actions in\nsupport of a discriminatory purpose during Cooper I. The district court flipped\n“the evidentiary burden on its head” based only on the recent history of dis-\ncrimination. Id. at 2325. More than requiring Walmart to present specific\nevents evidencing a discriminatory purpose connected to the public corporation\nban, the district court placed the burden on appellants to provide evidence that\nthe Texas Legislature had a true “change of heart” with respect to the resi-\ndency requirements while enacting a ban that affects public corporations irre-\nspective of location. Id. at 2326.\n 12\n\f Case: 18-50299 Document: 00515078735 Page: 13 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n The burden flip was especially problematic because the district court’s\nfindings arguably indicate that the Legislature sought to comply with the de-\nmands of the dormant Commerce Clause. The district court noted that Texas\ndid not stop enforcing durational residency requirements as applied to package\nstore owners until 2007, more than twelve years after § 22.16 was enacted.\nThis also meant that the public corporation ban was enforced against Texas\ncorporations while Texans still believed it was proper to deny would-be pack-\nage store owners from outside the state. As far as the record reveals, Texas\ncorporations were the only companies affected by the public corporation ban\nfor at least a decade after it was enacted. 10 In any event, the district court\ncommitted clear error by failing to apply a presumption of good faith to the\nenactment of the public corporation ban.\n The previously noted errors are further compounded because the district\ncourt misapplied the first Arlington factor. The first factor asks whether “a\nclear pattern of discrimination emerges from the effect of the state action.” All-\nstate, 495 F.3d at 160. The district court found that the corporation ban had\nthe “effect of barring nearly all out-of-state companies with the scale and ca-\npabilities necessary to serve the Texas retail liquor market.” That finding does\nnot answer the relevant question. For this dormant Commerce Clause inquiry,\nthe question is: Does the legislative action affect Walmart based on its status\nas an out-of-state public corporation? See Allstate, 495 F.3d at 160–61. This\nerror highlights a general flaw throughout the district court’s findings.\n\n\n\n\n 10 The public corporation ban does have a “grandfather clause” that exempts corpora-\ntions that held a P permit before the day the statute was enacted. Tex. Alco. Bev. Code. §\n22.16(f). Because Texas enforced durational residency requirements for package store owners\nuntil 2007, the exempted corporations are Texas-based firms. This clause arguably provides\nsome evidence of an effort by the Legislature to benefit in-state corporations, which the court\ncan consider along with other evidence in this case.\n 13\n\f Case: 18-50299 Document: 00515078735 Page: 14 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n The evidence indicates that the Legislature intended to ban public cor-\nporations from obtaining P permits after the state lost its ability to enforce the\ndurational residency requirements for other permits. Based on the optics, the\ndistrict court made several assertions without considering a critical point: Un-\nder the law of the Fifth Circuit, evidence that legislators intended to ban po-\ntential permittees based on company form alone is insufficient to meet the pur-\npose element of a dormant Commerce Clause claim. See Allstate, 495 F.3d at\n161–62 (rejecting Allstate’s discriminatory purpose argument because the evi-\ndence indicated only a desire to treat business forms differently, without re-\ngard to location); Ford Motor Co. v. Texas Dep’t of Transp., 264 F.3d 493, 500–\n01 (5th Cir. 2001) (rejecting discriminatory purpose argument because “the\nlegislative history indicate[d] the legislature’s intent to prevent manufacturers\nfrom utilizing their superior market position to compete against dealers in the\nretail car market”); see also Exxon Corp. v. Maryland, 437 U.S. 117, 125 (1978)\n(rejecting claims of disparate treatment because the statute did “not discrimi-\nnate against interstate goods” or favor local companies over interstate compa-\nnies). Section 22.16 bans public corporations from obtaining P permits irre-\nspective of location. The ban’s effect on all public corporations provides strong\nevidence that the Legislature did not purposefully discriminate against out-of-\nstate corporations. 11\n While the district court committed several errors in finding that the Leg-\nislature adopted the public corporation ban with a purpose to discriminate\nagainst interest commerce, the record also contains circumstantial evidence\nthat could support such a finding. As acknowledged, Texas has a history of\n\n\n 11 The application of the first Arlington factor underscores why it is debatable whether\nthe factors should be applied in the dormant Commerce Clause context. Under Allstate, Ford,\nand Exxon, a statute can create an obvious and significant barrier against out-of-state eco-\nnomic actors and, nevertheless, not evidence a discriminatory purpose. Good drafting can\nrender the first Arlington factor hollow.\n 14\n\f Case: 18-50299 Document: 00515078735 Page: 15 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\ndiscriminating against out-of-state alcohol retailers. That history has signifi-\ncant “probative value in connection” with the discriminatory purpose inquiry.\nVeasey, 830 F.3d at 232. However, affirming the district court’s finding of a\npurpose to discriminate based on the history alone would create an odd result.\nStates should be able to respond to a court deeming one of its laws unconstitu-\ntional. In addition, the present inquiry is further complicated because Texas\nenforced durational residency requirements against would be P permit holders\nfor years after the public corporation ban was enacted. In this context, overre-\nliance on the history alone would be a mistake. In line with Veasey, 12 and the\nSupreme Court’s analysis in Perez, the history of discrimination should be\nweighed “with any other direct and circumstantial evidence of th[e] Legisla-\nture’s intent.” Perez, 138 S. Ct. at 2327.\n The district court committed errors in its findings with respect to the\nother Arlington factors. The appropriate action is to remand the discriminatory\npurpose issue for reconsideration in light of this opinion. See Veasey, 830 F.3d\nat 235 (explaining that discriminatory intent is a factual matter that, when set\naside for an error of law, should be remanded for further proceedings).\n C.\n Moving on in the dormant Commerce Clause analysis, the district court\nfound that the public corporation ban does not have a discriminatory effect. 13\nThe district court reached that determination by following Allstate, 14 Ford, 15\n\n\n 12 830 F.3d at 232 (noting that “relatively contemporary examples of discrimination\nidentified by the district court are limited in their probative value in connection with discern-\ning the Texas Legislature’s intent”).\n 13 The district court also acknowledged its “odd” result, finding the public corporation\n\nban has a discriminatory purpose but not a discriminatory effect. As stated in Section III.B\nof this opinion, that result was partially attributable to the district court’s misapplication of\nthe first Arlington factor. However, it also highlights the logical inconsistency that might\nresult from applying the Arlington factors in a dormant Commerce Clause case.\n 14 495 F.3d 162–63 (relying on Exxon and rejecting discriminatory effect argument).\n 15 264 F.3d at 500–02 (relying on Exxon and rejecting discriminatory effect argument).\n\n 15\n\f Case: 18-50299 Document: 00515078735 Page: 16 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nand Exxon. 16 Exxon is the controlling dormant Commerce Clause case for con-\nsidering a facially neutral statute that bans particular companies from a retail\nmarket. In Exxon, oil companies brought a dormant Commerce Clause chal-\nlenge to invalidate a Maryland statute prohibiting producers and refiners of\npetroleum products from operating retail service stations in the state. The oil\ncompanies argued that the statute had the effect of protecting in-state inde-\npendent dealers from out-of-state competition. Exxon, 437 U.S. at 125. The\nplaintiffs relied on the fact that the burden of the prohibition fell solely on in-\nterstate companies. Id.\n The Supreme Court rejected the argument and explained that because\n“the burden of [a] state regulation falls on some interstate companies does not,\nby itself, establish a claim of discrimination against interstate commerce.” Id.\nat 126. The Court’s reasoning was based on the following factors: (1) The pro-\nhibition did not restrict interstate dealers in the retail market; (2) did not re-\nstrict the flow of interstate goods; (3) did not place added costs on interstate\ngoods; and (4) did not distinguish between in-state and out-of-state retailers in\nthe market. Id. The Court declared that the absence of those factors “distin-\nguishe[d] th[e] case from those in which a State has been found to have dis-\ncriminated against interstate commerce.” Id. A burden on some interstate com-\npanies is not a violation if “in-state [retailers] will have no competitive ad-\nvantage over out-of-state [retailers].” Id.\n In Ford, this court considered Exxon and rejected the plaintiff’s discrim-\ninatory effect argument. The case involved a Texas statute that banned auto-\nmobile manufacturers from obtaining a license to become car dealers in the\nstate. This court explained that a statute should be examined by “its effect on\nsimilarly situated business entities.” Ford, 264 F.3d at 501. Ford had failed to\n\n\n 16 437 U.S. at 125–26 (rejecting argument that statute had a discriminatory effect).\n 16\n\f Case: 18-50299 Document: 00515078735 Page: 17 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nshow that the Texas statute in question “discriminate[d] according to the ex-\ntent of a business entity’s contacts with the State. . . . [B]ut rather [showed\ndiscrimination] on the basis of Ford’s status as an automobile manufacturer.”\nId. at 502. It was irrelevant whether Ford is domiciled in Texas or Michigan.\nId. Either way, Ford was proscribed from entering the Texas automobile retail\nmarket. The statute, however, did not discriminate against independent auto-\nmobile dealers seeking to enter the Texas market. Id. Even if the statute “pre-\nvent[ed] manufacturers from utilizing their superior market position to com-\npete against dealers in the retail car market[,]” the statute did not have a dis-\ncriminatory effect on interstate commerce. Id. at 500. A statute can have a\ndiscriminatory effect if it provides a “competitive advantage to in-state inter-\nests vis-à-vis similarly situated out-of-state interests.” Id. at 501 (emphasis\nadded).\n Allstate is the most recent of the controlling cases. 17 Allstate, which con-\ntrolled approximately 15% of the automobile insurance market in Texas, initi-\nated a plan to enter the auto body repair business by acquiring Sterling Colli-\nsion Centers, Inc. (“Sterling”). Sterling was a multi-state chain of repair shops,\nincluding 15 shops in Texas. 495 F.3d at 155. Allstate believed it could mini-\nmize expenses for unnecessary or overpriced repairs, and eventually started\nfunneling repair opportunities to Sterling instead of other local repair shops.\nId. Texas later passed a bill that barred insurers from acquiring an interest in\n\n\n 17 In Churchill Downs Inc. v. Trout, this court acknowledged that, “[i]n cases where\nthe challenged statutes are facially neutral, the Supreme Court has evinced a reluctance to\ntake an expansive view of the concept of ‘discriminatory effects.’” 589 F. App’x 233, 236 (5th\nCir. 2014). This court noted that the Court reached the conclusion in Exxon by using a narrow\ndefinition of “substantially similarly entities.” Id. The Court has been mostly reluctant to find\nthat a facially neutral statute has a discriminatory effect. See id. (discussing Minnesota v.\nClover Leaf Creamery Co., 449 U.S. 456, 458 (1981), in which the court upheld a facially-\nneutral statute); id. at n.7 (citing Erwin Chemerinsky, Constitutional Law 447 (4th ed. 2011)\n(citing Clover Leaf as an additional example of a case where “discriminatory impact” did not\ninvalidate a facially neutral statute)).\n 17\n\f Case: 18-50299 Document: 00515078735 Page: 18 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nauto body shops. 18 Id. at 156. Allstate later filed suit, arguing in part that the\nbill violated the dormant Commerce Clause. Allstate chiefly argued that the\nbill was part of a coordinated political effort to hurt its Sterling venture and to\nmaintain the market dominance of local Texas body shops. Id. The district\ncourt rejected the claim. Id. at 157.\n On appeal, the plaintiffs argued that the bill had a discriminatory effect\nbecause it favored in-state companies and would shift some services from out-\nof-state providers to in-state providers. 495 F.3d at 162. Relying principally on\nExxon, this court rejected the discriminatory effect argument, stating that “[a]\nstatute impermissibly discriminates only when it discriminates between simi-\nlarly situated in-state and out-of-state interests.” Id. at 163.\n In the present case, the public corporation ban treats in-state and out-\nof-state public corporations the same. Neither in-state nor out-of-state public\ncorporations may obtain a P permit or own a package store. There are “no bar-\nriers whatsoever to out-of-state” companies obtaining P permits so long as they\nare not a public corporation as defined by the statute. Allstate, 495 F.3d at 163.\nFurther, § 22.16 does not “prohibit the flow of interstate [liquor retail prod-\nucts], place additional costs upon [out-of-state retailers], or distinguish be-\ntween in-state and out-of-state companies in the retail market.” Id. (quotation\nmarks omitted). “[T]he absence of any of these factors fully distinguishes this\ncase from those in which a State has been found to have discriminated against\ninterstate commerce.” Id. (quotation marks omitted). As the district court\nnoted, Texas-based public corporations are prohibited from selling liquor in the\nstate. Meanwhile, several companies owned by out-of-state residents have en-\ntered the Texas liquor retail market, including one of the ten largest liquor\n\n\n\n 18The bill also included a grandfather clause that exempted facilities already open for\nbusiness at the time. Allstate, 495 F.3d at 157 n.6.\n 18\n\f Case: 18-50299 Document: 00515078735 Page: 19 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nretailers in the state. 19 Despite the fact that the public corporation ban un-\ndoubtedly blocks some economic actors from entering the Texas liquor retail\nmarket, 20 we agree with the district court that the ban does not have a discrim-\ninatory effect on interstate commerce. 21\n Because the district court committed clear error in finding that § 22.16\nwas enacted with a purpose to discriminate against interstate commerce, and\ngiven that we have concluded that the facially neutral ban does not have a\ndiscriminatory effect, we must remand this case for reconsideration of whether\nthe ban was enacted with a discriminatory purpose.\n\n\n\n\n 19 Fine Wines & Spirits of North Texas, LLC is owned by a Maryland resident.\n 20 See Ford, 264 F.3d at 512 (Jones, J., concurring) (concurring because Exxon is con-\ntrolling but noting the barrier to retail competition from out-of-state).\n 21 There is a tension, however, between the Court’s analysis in Exxon and dicta from\n\nits recent opinion in Tennessee Wine. 139 S. Ct. 2449. The case involved a set of Tennessee\nlaws that placed durational-residency requirements on those seeking to obtain or renew a\nlicense to operate a liquor store in the state. Id. at 2456. One of the provisions provided that\na corporation could not obtain a license to operate a liquor store unless all its stockholders\nare residents of Tennessee. Id. at 2457. The Sixth Circuit had previously found that provision\nfacially discriminatory and affirmed that it violated the dormant Commerce Clause. Byrd v.\nTennessee Wine & Spirits Retailers Ass’n, 883 F.3d 608, 626, 628 (6th Cir.), cert. granted, 139\nS. Ct. 52 (2018), and aff’d sub nom. Tennessee Wine, 139 S. Ct. 2449. The provision was not\nat issue in Tennessee Wine, but the majority commented on its discriminatory nature and its\npractical effect. The Court referred to the 100-percent-resident shareholder requirement as\na “blatant” violation of the Commerce Clause. Id. at 2457. The Court also noted that the\npractical effect of the provision was that “no corporation whose stock is publicly traded may\noperate a liquor store in the State.” Id. But the Court did not say more on that point. Con-\ncluding the opinion, the majority added that “the predominant effect” of the 100-percent-\nresident shareholder provision was to protect members of the Tennessee Wine and Spirits\nRetailers Association from out-of-state competition. Id. at 2476. The dicta in that opinion\nleaves many questions to be answered. Was the predominant effect of the provision protec-\ntionism because it was facially discriminatory or because of its practical effect? The Tennes-\nsee laws were all facially discriminatory, so the Court never conducted a discriminatory effect\nanalysis. As this court has previously noted, “jurisprudence in the area of the dormant Com-\nmerce Clause is, quite simply, a mess.” Churchill Downs, 589 F. App’x at 235. Because of the\nambiguity in the dicta from Tennessee Wine, we decline to conclude that the Court meant to\nalter the discriminatory effect analysis when specifically considering a general public corpo-\nration ban. Exxon remains the controlling Supreme Court precedent.\n 19\n\f Case: 18-50299 Document: 00515078735 Page: 20 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n D.\n The district court analyzed another means by which it concluded could\ninvalidate a statute under the dormant Commerce Clause even if the statute\ndid not discriminate facially, in purpose or in effect. The district court con-\ncluded that “a law that does not directly discriminate against interstate com-\nmerce” can still violate the dormant Commerce Clause if it imposes a burden\non interstate commerce that is “clearly excessive” in relation to the “putative\nlocal benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). The dis-\ntrict court determined that § 22.16 violates the dormant Commerce Clause un-\nder the Pike test. We conclude that remand is needed on this ground as well.\n A court should consider: (1) whether the law burdens interstate com-\nmerce; 22 (2) whether there is a “legitimate local interest” in the law; 23 and (3)\nwhen both are present, if the extent of the burden should be tolerated based on\nthe local interest involved, including if the interest “could be promoted as well\nwith a lesser impact on interstate activities.” 24 The inquiry is known as the\nPike balancing test. Churchill Downs, 589 F. App’x at 237. When applying the\nPike test in this context, “[a] statute imposes a burden when it inhibits the flow\nof goods interstate.” Allstate, 495 F.3d 151. Having already held that the public\ncorporation ban was enacted with a purpose to discriminate, the district court\nfurther concluded that “the burden imposed on [interstate] commerce” by the\npublic corporation ban “is clearly excessive in relation to the putative local ben-\nefits.” Pike, 397 U.S. at 142.\n\n\n\n\n 22 Pike, 397 U.S. at 142.\n 23 Id.\n 24 Id. (emphasis added).\n\n 20\n\f Case: 18-50299 Document: 00515078735 Page: 21 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n Appellants argue that the Pike test does not apply to a nondiscriminatory\nregulation of alcohol beverage retailing under the Twenty-first Amendment. 25\nWalmart contends that the controlling case law is clear that Pike can be ap-\nplied to alcohol-related laws despite the Twenty-first Amendment.\n The Supreme Court has not considered the issue. Further, none of our\nsister circuits have struck down a state regulation of liquor under Pike while\nalso concluding that the Twenty-first Amendment applied. See Lebamoff En-\nterprises, Inc. v. Huskey, 666 F.3d 455, 467 (7th Cir. 2012) (Hamilton, J., con-\ncurring) (“What we do not find is a case applying Pike balancing and holding\nthat a non-discriminatory state alcohol law flunks.”). Compare Baude v. Heath,\n538 F.3d 608 (7th Cir. 2008) (striking down statute that was discriminatory in\neffect while citing Pike without addressing the Twenty-first Amendment) with\nLebamoff, 666 F.3d at 468 (Hamilton, J., concurring) (“The Baude opinion does\nnot, however, provide a persuasive basis for applying Pike balancing to non-\ndiscriminatory state alcohol laws.”). Application of Pike in the face of § 2 of the\nTwenty-first Amendment is questionable in light of the Court’s recent declara-\ntion that states “remai[n] free to pursue” legitimate interests aimed at regu-\nlating the ill-effects and risks associated with the alcohol trade. Tennessee\nWine, 139 S. Ct. at 2472 (alteration in original) (quotation marks omitted). 26\n\n\n\n 25 The TPSA asserts that Walmart failed to litigate Pike in the district court. However,\nPike was either cited or raised by the parties numerous times during the district court pro-\nceedings. Walmart did not waive the Pike issue.\n 26 This is also true in light of the Court’s acknowledgement that three-tier systems for\n\nthe control and distribution of alcohol are “unquestionably legitimate.” Granholm, 544 U.S.\nat 488–89 (quotation marks omitted). Various nondiscriminatory laws passed under three-\ntier systems place at least some burden on interstate commerce. Pike balancing might be\ndecisive in many cases. See Lebamoff, 666 F.3d at 469 (Hamilton, J., concurring). Granting\ncourts the power to substitute a legislature’s policy considerations with its own when consid-\nering nondiscriminatory alcohol-related laws seems to be in direct tension with state power\ngranted by § 2. Such tension lends support for Justice Scalia’s contention that the Pike “in-\nquiry is ill suited to the judicial function and should be undertaken rarely if at all.” CTS Corp.\nv. Dynamics Corp. of Am., 481 U.S. 69, 95 (1987) (concurring).\n 21\n\f Case: 18-50299 Document: 00515078735 Page: 22 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\n However, in Tennessee Wine, the Court “reiterate[d] that the Commerce\nClause by its own force restricts state protectionism.” 139 S. Ct. at 2461 (em-\nphasis added). While that is an ambiguous statement from a case involving a\nfacially discriminatory provision, it is a signal that we need not get ahead of\nthe Court by concluding that Pike balancing cannot be applied to a facially\nneutral regulation of alcohol retailing. 27 So we proceed with the test.\n The inquiry ends at our first step in the analysis. The district court de-\ntermined that the public corporation ban places a substantial burden on inter-\nstate commerce because it protects package stores owned by Texas residents\nfrom out-of-state market entrants. The district court relied on evidence that\n98% of the package stores in Texas are owned by in-state residents. Addition-\nally, Walmart provided evidence that numerous out-of-state companies would\nenter the Texas liquor retail market if the ban was not in place. Appellants\nargued that the ban places an equal burden on in-state companies, presenting\nevidence that the number of publicly traded companies domiciled in Texas that\nare barred by the ban is roughly proportional to Texas’ share of the national\npopulation and national economy. The district court rejected appellants’ evi-\ndence and declared that “assessing disparate impact requires the Court to\nmeasure the effect the public corporation ban has on the in-state and out-of-\nstate companies that would otherwise serve the market if not for the ban.”\nThere is no authority which supports that conclusion.\n The district court’s analysis overlooks the controlling precedent. In\nExxon, the Court instructed that the Commerce “Clause protects the interstate\n\n\n\n 27 The Court has cited Pike in dormant Commerce Clause cases involving alcohol-re-\nlated laws. See Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573,\n579 (1986) (evaluating the constitutionality of state’s lowest-price affirmation provision of\nalcohol control law); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 270 (1984) (considering the\nconstitutionality of a liquor excise tax). In the absence of controlling authority, we will not\nexempt an entire category of laws from the Pike test.\n 22\n\f Case: 18-50299 Document: 00515078735 Page: 23 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nmarket, not particular interstate firms.” Exxon, 437 U.S. at 128 (emphases\nadded). The Court explained that interstate commerce is not “subjected to an\nimpermissible burden” because some potential participants are shifted out of\nthe in-state market. Id. at 127. 28 As noted in Allstate, “[t]he Supreme Court\nhas ‘rejected the notion that the Commerce Clause protects the particular\nstructure or methods of operation in a . . . market.’” Allstate, 495 F.3d at 163–\n64 (quoting CTS Corp., 481 U.S. at 93–94). In that case, this court rejected the\nassertion that there was a substantial burden on interstate commerce, in part\nbecause the Texas law in question did not prohibit interstate economic actors\nfrom entering the in-state market. Id. at 164 (rejecting assertion that a com-\npany’s inability to expand imposes a burden on interstate commerce). Similar\nto Allstate, appellants in the present case have provided evidence that several\npackage stores in Texas are owned and operated by out-of-state residents. See\nid. (finding the same).\n The district court should have considered evidence addressing the public\ncorporation ban’s effect on the flow of interstate goods, or how the ban affects\nthe flow of the potential market participant’s goods to the Texas liquor retail\nmarket. See id. at 163 (“A statute imposes a burden when it inhibits the flow\nof goods interstate.”); Ford, 264 F.3d at 503 (finding the plaintiff “failed to\ndemonstrate that [the statute] will burden commerce by inhibiting the flow of\ninterstate goods”); see also Exxon, 437 U.S. at 126 n.16 (“If the effect of a state\n\n\n\n 28 Walmart incorrectly asserts that Lewis v. BT Inv. Managers, Inc., informs the Pike\ninquiry in this case. 447 U.S. 27 (1980). The Court made it clear that the prohibition in that\ncase discriminated among similarly situated business entities according to their contact with\nthe local state economy. See id. at 42 (“It follows that [the statue] discriminates among af-\nfected business entities according to the extent of their contacts with the local economy. The\nabsence of a similar discrimination between interstate and local producer-refiners was a most\ncritical factor in Exxon.”) (emphasis in original). The Court determined that the statute had\na discriminatory effect but concluded that it failed the Pike test. Id. Again, Exxon, Ford, and\nAllstate are controlling in this case.\n 23\n\f Case: 18-50299 Document: 00515078735 Page: 24 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nregulation is to cause local goods to constitute a larger share, and goods with\nan out-of-state source to constitute a smaller share, of the total sales in the\nmarket . . . the regulation may have a discriminatory effect on interstate com-\nmerce.”). The record is devoid of such evidence. Therefore, a remand is neces-\nsary to allow the trial court to find facts for proper application of the Pike test. 29\n We vacate the portion of the district court’s judgment that the public\ncorporation ban violates the dormant Commerce Clause because remand is\nwarranted on two separate grounds.\n E.\n The district court also determined that the public corporation ban does\nnot violate the Equal Protection Clause because the ban is rationally related\nto the state’s legitimate purpose of reducing the availability and consumption\nof liquor throughout Texas. Walmart argues that (1) heightened scrutiny\nshould apply to the ban because the law imposes an “absolute deprivation” of\na benefit due to the applicant’s supposed wealth; and (2) the ban has the hall-\nmarks of “animus” against public corporations. Walmart adds that the ban is\nalso irrational. Appellants argue that the public corporation ban is an economic\nregulation that is not subject to heightened review and clearly survives ra-\ntional basis review. We agree with the latter.\n Under the Equal Protection Clause of the Fourteenth Amendment, “[n]o\nState shall . . . deny to any person within its jurisdiction the equal protection\nof the laws.” U.S. Const. amend. XIV, § 1. Walmart has failed to provide sup-\nport for its assertion that a general ban on public corporations warrants height-\nened scrutiny. 30 Walmart is not a member of a protected class and the public\n\n\n 29 The district court also found that the public corporation ban is rationally related to\na legitimate state interest. However, because there is not a sufficient factual record to weigh\nagainst the state interest, we do not consider the issue at this time. A remand is warranted.\n 30 Walmart’s contention, that the ban was enacted with animus toward public corpo-\n\nrations generally and animus toward Walmart specifically, may be true. However, Walmart\n 24\n\f Case: 18-50299 Document: 00515078735 Page: 25 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\ncorporation ban does not infringe upon a fundamental right. Therefore, we ap-\nply a rational basis review. Hines v. Alldredge, 783 F.3d 197, 202–03 (5th Cir.\n2015). “Under this standard, a legislative classification ‘must be upheld\nagainst equal protection challenge if there is any reasonably conceivable state\nof facts that could provide a rational basis for the classification.’” Glass v. Pax-\nton, 900 F.3d 233, 244–45 (5th Cir. 2018) (quoting FCC v. Beach Commc’ns,\nInc., 508 U.S. 307, 313 (1993)). The parties challenging the “presumption of\nvalidity” granted to legislative classifications must negate every conceivable\nbasis which might support the legislation. Id. at 245.\n Rational basis review is fact intensive. The review “places no affirmative\nevidentiary burden on the government, [but] plaintiffs may nonetheless negate\na seemingly plausible basis for the law by adducing evidence of irrationality.”\nSt. Joseph Abbey v. Castille, 712 F.3d 215, 223 (5th Cir. 2013). While a “hypo-\nthetical rationale” is acceptable, it “cannot be fantasy.” Id. The government\naction “must rationally relate to the state interests it articulates.” Id. “[W]e\nwill examine the State[’s] rationale informed by the setting and history of the\nchallenged rule.” Id.\n The district court determined that the public corporation ban is conceiv-\nably related to Texas’ legitimate purpose to reduce the availability and con-\nsumption of liquor. On appeal, Walmart contends that this conclusion was\nmade up of “hypothetical . . . lawful links.” Walmart adds that allowing the ban\nwould “justify banning any group the Legislature might conceivably believe\n\n\n\n\nhas failed to provide a single case indicating that heightened scrutiny should be applied to\nsuch an Equal Protection Claim. Walmart cites Bishop v. Smith. 760 F.3d 1070, 1099–1100\n(10th Cir. 2014) (Holmes, J., concurring). However, Bishop did not involve an application of\nheightened scrutiny based on animus toward corporations. Walmart has also failed to provide\nsupport for its contention that a corporation’s perceived wealth warrants inclusion in a pro-\ntected class.\n 25\n\f Case: 18-50299 Document: 00515078735 Page: 26 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nwould be more successful at retail” and the hypothetical is “contrary to basic\neconomic truth.” Walmart’s pleas are unavailing.\n Walmart does not dispute that Texas has a legitimate interest in regu-\nlating the consumption of liquor and limiting the effects of liquor-related ex-\nternalities. The state could believe that excluding public corporations reduces\nboth the total number of package store firms and overall liquor consumption,\ndriving up prices. Relatedly, it is more than reasonable to assume that the\nstate believed that public corporations have the capital and scale to offer liquor\nwell below current prices. In fact, that assumption was included in Walmart’s\nargument that the public corporation ban keeps liquor prices “artificially high”\nand forces consumers to pay “non-competitive prices.” Walmart’s own argu-\nments support the district court’s conclusion. Walmart has not negated the\ntheory that excluding public corporations from the liquor retail market in-\ncreases prices. We conclude that there is a rational basis for Texas’ decision to\nban all public corporations from obtaining P permits. The public corporation\nban does not violate the Equal Protection Clause.\n F.\n While this appeal was pending, the governor of Texas signed into law\nHouse Bill 1545. Section 82 of the bill raises the five P permit limit created by\nTex. Alco. Bev. Code § 22.04, to 250 P permits. A permittee may obtain up to\n15 original P permits each year, and an unlimited number of permits pur-\nchased from already-existing stores. Section 85 of the bill repeals Tex. Alco.\nBev. Code § 22.05, the consanguinity exception to the five-permit limit. The bill\ntakes effect on September 1, 2019. Tex. H.B. 1545, §§ 82, 84. Walmart now\nseeks to withdraw its challenges to §§ 22.04 and 22.05, and has requested that\nwe vacate the district court’s judgment in its favor with respect to those chal-\nlenges. The parties agree that we should vacate the district court’s judgment\n\n\n 26\n\f Case: 18-50299 Document: 00515078735 Page: 27 Date Filed: 08/15/2019\n\n\n\n No. 18-50299\nin Walmart’s favor with respect to those challenges. 31 Accordingly, we do not\naddress Walmart’s challenges to §§ 22.04 and 22.05. The challenges are with-\ndrawn. Remand is warranted in this case, and we leave for the district court to\nconsider in the first instance whether the judgment in favor of Walmart with\nrespect to §§ 22.04 and 22.05 should be vacated.\n IV. Conclusion\n For the reasons stated above, the district court’s judgment enjoining en-\nforcement of § 22.16 is VACATED. The district court’s judgment that § 22.16\ndoes not violate the Equal Protection Clause is AFFIRMED. The district court’s\njudgment that § 22.16 offends the dormant Commerce Clause is VACATED\nand REMANDED for further proceedings consistent with this opinion.\n\n\n\n\n 31 Walmart did not file a motion but made its request in a Federal Rule of Appellate\nProcedure 28(j) letter submitted to this court on June 17, 2019. On June 19, 2019, the TPSA\nsubmitted a response to the 28(j) letter agreeing with Walmart. The TABC submitted a re-\nsponse on June 20, 2019, agreeing that the district court’s judgment should be vacated.\n\n 27\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: WAL-MART STORES, INCORPORATED; Wal-Mart Stores Texas, L.L.C.; Sam's East, Incorporated; Quality Licensing Corporation, Plaintiffs - Appellees Cross-Appellants v. TEXAS ALCOHOLIC BEVERAGE COMMISSION; Kevin Lilly, Presiding Officer of the Texas Alcoholic Beverage Commission; Ida Clement Steen, Defendants - Appellants Cross-Appellees Texas Package Stores Association, Incorporated, Movant - Appellant Cross-Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50299 Document: 00515078735 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 15, 2019\\n No. 18-50299\\n Lyle W. Cayce\\n Clerk\\n\\nWAL-MART STORES, INCORPORATED; WAL-MART STORES TEXAS,\\nL.L.C; SAM'S EAST, INCORPORATED; QUALITY LICENSING CORPORA-\\nTION,\\n\\n Plaintiffs - Appellees Cross-Appellants\\n\\nv.\\n\\nTEXAS ALCOHOLIC BEVERAGE COMMISSION; KEVIN LILLY, Presiding\\nOfficer of the Texas Alcoholic Beverage Commission; IDA CLEMENT\\nSTEEN,\\n\\n Defendants - Appellants Cross-Appellees\\n\\nTEXAS PACKAGE STORES ASSOCIATION, INCORPORATED,\\n\\n Movant - Appellant Cross-Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore DAVIS, HAYNES, and GRAVES, Circuit Judges.\\nJAMES E. GRAVES, JR., Circuit Judge:\\n Plaintiff-Appellee Wal-Mart Stores, Incorporated and three of its subsid-\\niaries (collectively, “Walmart”), brought 42 U.S.C. § 1983 claims against the\\nTexas Alcoholic Beverage Commission and three of its commissioners (collec-\\ntively, the “TABC”), to challenge four Texas statutes (Tex. Alco. Bev. Code §§\\n\\f Case: 18-50299 Document: 00515078735 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n22.04, 22.05, 22.06, 22.16) 1 that govern the issuances of permits that allow for\\nthe retail sale of liquor in Texas (called “package store” permits, or “P per-\\nmits”). Section 22.16 prohibits public corporations from obtaining P permits in\\nTexas. Walmart argued that the ban violates the dormant Commerce Clause\\nof the United States Constitution and the Equal Protection Clause of the Four-\\nteenth Amendment. Later, we granted the Texas Package Store Association’s\\n(“TPSA”) motion to intervene as a matter of right, in defense of the statutes.\\nSee Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562 (5th\\nCir. 2016).\\n We now consider the TABC and TPSA’s (“appellants”) appeal of the dis-\\ntrict court’s conclusion that the public corporation ban offends the dormant\\nCommerce Clause, and Walmart’s cross-appeal of the district court’s determi-\\nnation that the public corporation ban does not violate the Equal Protection\\nClause. We affirm the part of the district court’s judgment rejecting Walmart’s\\nEqual Protection challenge to the public corporation ban. Conversely, because\\nthe district court erred in its findings regarding the discriminatory nature and\\nburden imposed by the public corporation ban, Walmart’s dormant Commerce\\nClause challenge to § 22.16 is remanded.\\n I. Facts\\n A.\\n Texas regulates the sale and importation of alcoholic beverages through\\na three-tier system that requires separate licenses and permits for producers,\\nwholesalers, and retailers who meet certain eligibility requirements. See Wine\\nCountry Gift Baskets.com v. Steen, 612 F.3d 809, 818–19 (5th Cir. 2010) (noting\\nthat Texas has a three-tier system “in which producers sell to state-licensed\\nwholesalers, who sell to state-licensed retailers”). Liquor retailers must obtain\\n\\n\\n 1 Walmart’s challenge to Tex. Alco. Bev. Code § 22.06 is not at issue on appeal.\\n 2\\n\\f Case: 18-50299 Document: 00515078735 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\na separate permit for each physical location where liquor is sold for off-prem-\\nises consumption. The permits authorize an unlimited volume of sales from the\\npermitted location. The TABC is the state agency responsible for issuing per-\\nmits and enforcing the Texas Alcoholic Beverage Code. The TPSA is the trade\\nassociation of Texas package stores that are majority-owned by Texans.\\n There is one permit relevant to this appeal. P permits authorize the sale\\nof liquor, wine, and ale for off-premises consumption. Tex. Alco. Bev. Code §\\n22.01. Texas liquor stores must hold a P permit.\\n At the time of this litigation, there were 2,578 active P permits issued by\\nthe TABC, and 574 were owned by a package store chain (a business holding\\nsix or more P permits). There were 21 active package store chains. Since 1944,\\npackage store chains have grown in size and volume of sales, although the total\\nnumber of package stores has remained approximately the same. The package\\nstore chains have a significant share of the Texas market, but it is not clear\\nhow much. The largest package store chains control seven of the nine seats on\\nthe TPSA’s executive committee.\\n B.\\n Texas’ public corporation ban proscribes “any entity which is directly or\\nindirectly owned or controlled, in whole or in part, by a public corporation”\\nfrom obtaining a P permit. Tex. Alco. Bev. Code § 22.16(a). The statute defines\\na “public corporation” as a corporation “whose shares . . . are listed on a public\\nstock exchange” or “in which more than 35 persons hold an ownership inter-\\nest.” Id. § 22.16(b). Public corporations can hold any of the other seventy-five\\ntypes of alcohol permits that Texas issues.\\n\\n\\n\\n\\n 3\\n\\f Case: 18-50299 Document: 00515078735 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n Walmart is a retailer that is the largest public company in the world. 2\\nOperating approximately 5,000 stores in the U.S., Walmart currently sells beer\\nor wine in forty-seven states, including 668 locations in Texas, and liquor in\\nthirty-one states. Walmart’s goal is to increase its sales and profits from alco-\\nholic beverages in Texas. Walmart has plans to open liquor stores adjacent to\\nsome of its existing Texas retail locations. However, because it is a publicly\\ntraded corporation without a majority shareholder, Walmart cannot imple-\\nment its plan unless the public corporation ban is invalidated.\\n Walmart unsuccessfully lobbied the Texas Legislature to repeal § 22.16. 3\\nAfter its failed attempt to obtain a legislative remedy, Walmart sued the TABC\\nin federal court to have the judiciary neutralize the public corporation ban, and\\nthis court subsequently granted the TPSA’s motion to intervene.\\n After a week-long bench trail, the district court concluded, inter alia, that\\nthe public corporation ban: (1) has a discriminatory purpose and the ban’s bur-\\nden on interstate commerce is clearly excessive when compared to the local\\nbenefits, and (2) does not violate the Equal Protection Clause. The district\\ncourt enjoined the TABC from enforcing the public corporation ban. This ap-\\npeal and cross-appeal followed. We consider whether the public corporation\\nban is unconstitutional under the dormant Commerce Clause and the Equal\\nProtection Clause. 4\\n\\n\\n\\n\\n 2 As of 2018, Walmart had consolidated revenue of over $500 billion, making it the\\nlargest company in the world. Fortune 500 Companies 2018: Who Made the List, FORTUNE\\nMAG. (May 21, 2018), http://fortune.com/global500/.\\n 3 Along with the other aforementioned statutes that we do not address at this time.\\n 4 The district court exercised subject matter jurisdiction over this case based on federal\\n\\nquestion jurisdiction under 28 U.S.C. § 1331. We have jurisdiction over this appeal pursuant\\nto 28 U.S.C. § 1291.\\n 4\\n\\f Case: 18-50299 Document: 00515078735 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n II. Standards of Review\\n We review a district court’s judgment regarding the constitutionally of a\\nstatute de novo. Allstate Ins. Co. v. Abbott, 495 F.3d 151, 160 (5th Cir. 2007).\\nThe district court’s findings of fact relevant to the constitutional question are\\nreviewed for clear error. Id. Because this case involves a dormant Commerce\\nClause challenge, one threshold issue is whether the public corporation ban\\nwas enacted with the purpose to discriminate against interstate commerce. Id.\\nat 160–62. In Allstate, this court applied the Arlington 5 factors to determine\\nwhether purposeful discrimination inspired a state legislature’s actions in vio-\\nlation of the dormant Commerce Clause. 6 Therefore, we do the same. 7 “[A] dis-\\ntrict court’s finding of fact on the question of discriminatory intent is reviewed\\nfor clear error.” Abbott v. Perez, 138 S. Ct. 2305, 2326 (2018). “If the district\\ncourt’s findings are plausible in light of the record viewed in its entirety, we\\nmust accept them, even though we might have weighed the evidence differently\\nif we had been sitting as a trier of fact.” Veasey v. Abbott, 830 F.3d 216, 229\\n(5th Cir. 2016) (en banc) (quotation marks omitted). “However, when the dis-\\ntrict court’s ‘findings are infirm because of an erroneous view of the law, a re-\\nmand is the proper course unless the record permits only one resolution of the\\nfactual issue.’” Id. (quoting Pullman–Standard v. Swint, 456 U.S. 273, 292\\n(1982)). In the latter case, we should reverse and render a decision. Id.\\n\\n\\n\\n\\n 5 See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266–\\n68 (1977).\\n 6 Allstate, 495 F.3d at 160.\\n 7 Although it is debatable whether the Arlington factors should be applied when con-\\n\\nsidering whether purposeful discrimination motivated legislative action in a dormant Com-\\nmerce Clause case, given our well-established rule that one panel of the Fifth Circuit cannot\\noverrule the prior decision of another panel, we need not consider arguments challenging\\napplication of the factors to this case. See Gardes Directional Drilling v. U.S. Turnkey Expl.\\nCo., 98 F.3d 860, 868 (5th Cir. 1996) (citing Broussard v. Southern Pac. Transp. Co., 665 F.2d\\n1387, 1389 (1982) (en banc)).\\n 5\\n\\f Case: 18-50299 Document: 00515078735 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n III. Challenges\\n A.\\n The Supreme Court has long held that the Commerce Clause “prohibits\\nstate laws that unduly restrict interstate commerce.” Tennessee Wine & Spirits\\nRetailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019). This interpretation is\\nknown as the dormant Commerce Clause. “‘This negative aspect of the Com-\\nmerce Clause’ prevents the States from adopting protectionist measures and\\nthus preserves a national market for goods and services.” Tennessee Wine, 139\\nS. Ct. at 2459 (quoting New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273\\n(1988)).\\n “A statute violates the dormant Commerce Clause where it discriminates\\nagainst interstate commerce either facially, by purpose, or by effect.” Allstate,\\n495 F.3d at 160. Given that this case involves a law that regulates liquor re-\\ntailers, the dormant Commerce Clause analysis must be considered in light of\\nthe Twenty-first Amendment. Section 2 of the Amendment grants states the\\nauthority to regulate the transportation, importation, possession, and use of\\nalcohol within their own borders. See U.S. Const. amend. XXI, § 2.\\n Recently, in Tennessee Wine, the Court reaffirmed what this court had\\npreviously concluded: 8 Section 2 does not grant states the power to violate the\\n“nondiscrimination principle” of the dormant Commerce Clause. 139 S. Ct. at\\n2470 (citing Granholm v. Heald, 544 U.S. 460, 487 (2005)). The Court acknowl-\\nedged that, under § 2, states “remai[n] free to pursue their legitimate interests”\\nin addressing the health and safety risks associated with the alcohol trade. Id.\\nat 2472 (alteration in original) (quotation marks omitted). Therefore, “each\\nvariation [of law] must be judged based on its own features.” Id.\\n\\n\\n 8 In Cooper II, this court rejected the TPSA’s assertion that Commerce Clause protec-\\ntions do not apply to state alcohol laws regulating the retailers and wholesalers in a three-\\ntier system. 820 F.3d at 743.\\n 6\\n\\f Case: 18-50299 Document: 00515078735 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n The Court clarified the standard for evaluating a discriminatory alcohol-\\nrelated regulation, charging courts to “ask whether the challenged [discrimi-\\nnatory] requirement can be justified as a public health or safety measure or on\\nsome other legitimate nonprotectionist ground.” Id. at 2474. The standard has\\nteeth. “[M]ere speculation” or “unsupported assertions” of fact are insufficient\\nto validate an otherwise discriminatory law. Id. If the “predominant effect” of\\nthe discriminatory law is protectionism and not “the protection of public health\\nor safety,” the law is not shielded by § 2. Id. at 2474. In conducting the inquiry,\\ncourts must look for “concrete evidence” that the statute “actually promotes\\npublic health or safety,” or evidence that “nondiscriminatory alternatives\\nwould be insufficient to further those interests.” Id.\\n Section 22.16 is a facially neutral statute that bans all public corpora-\\ntions from obtaining P permits irrespective of domicile. Therefore, we focus on\\nwhether the ban was enacted with a discriminatory purpose or has a discrimi-\\nnatory effect on interstate commerce.\\n B.\\n Although the district court correctly cited the Arlington framework, some\\nof its discriminatory purpose “findings are infirm.” Veasey, 830 F.3d at 230\\n(quotation marks omitted). The record does not support “only one resolution of\\nthe factual issue,” as there is evidence that could support the district court’s\\nfinding of a purpose to discriminate, so we must remand for a reweighing of\\nthe evidence on that issue. Id.\\n “The burden of establishing that a challenged statute has a discrimina-\\ntory purpose under the Commerce Clause falls on the party challenging the\\nprovision.” Allstate, 495 F.3d at 160. We consider the following non-exhaustive\\nfactors when determining whether a state legislature’s actions amount to pur-\\nposeful discrimination against interstate commerce: (1) whether the effect of\\nthe state action creates a clear pattern of discrimination; (2) the historical\\n 7\\n\\f Case: 18-50299 Document: 00515078735 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nbackground of the action, which may include any history of discrimination by\\nthe decisionmakers; (3) the “specific sequence of events leading up” to the chal-\\nlenged state action, including (4) any “departures from normal procedures[;]”\\nand (5) “the legislative or administrative history of the state action, including\\ncontemporary statements by decisionmakers.” Id. Legislators’ awareness of a\\ndiscriminatory effect “is not enough: the law must be passed because of” that\\ndiscriminatory effect. Veasey, 830 F.3d at 231 (applying the Arlington factors).\\nThe challenger must show that the discriminatory effect was “a substantial or\\nmotivating factor” leading to the enactment of the statute. Id. (quotation marks\\nomitted). If the challenger meets that burden, defendants must “demonstrate\\nthat the law would have been enacted without this factor.” Id.\\n First, the district court properly found that Texas has a clear history of\\ndiscriminating against out-of-state alcohol retailers. From the passage of its\\nLiquor Control Act in 1935, Texas had prohibited out-of-state individuals and\\ncompanies from owning package stores. In Cooper v. McBeath, this court inval-\\nidated Texas laws imposing durational residency requirements on alcohol re-\\ntail store owners. 11 F.3d 547 (5th Cir. 1994) (Cooper I). While Cooper I was\\npending, the Texas Legislature enacted House Bill 1445, in an attempt to moot\\nthe Cooper I litigation. The bill repealed the residency requirements at issue\\nin the case. Texas kept durational residency requirements for other permits.\\nSoon after the governor of Texas signed the bill, the Cooper I plaintiffs moved\\nto dismiss the appeal as moot. However, this court denied the motion and is-\\nsued an opinion striking down the residency requirements, with language\\nbroad enough to apply to all the alcohol permits. Id. at 550–51, 554. Despite\\nthe Cooper I decision, Texas enforced durational residency requirements as ap-\\nplied to P permits for another twelve years—stopping enforcement only after\\nthe practice was permanently enjoined by a federal district court. S. Wine &\\nSpirits of Texas, Inc. v. Steen, 486 F. Supp. 2d 626, 633 (W.D. Tex. 2007). The\\n 8\\n\\f Case: 18-50299 Document: 00515078735 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nevidence relied on by the district court was “not long past history.” Veasey, 830\\nF.3d at 232. Texas decisionmakers have a history of discrimination. 9\\n Addressing a second factor, the district court erred in finding that the\\nlegislative history of § 22.16 includes direct evidence of a purpose to discrimi-\\nnate against interstate commerce. The district court made much of the fact\\nthat § 22.16 was enacted in 1995, one year after Cooper I. A lawyer and lobbyist\\nwho worked on behalf of the TPSA drafted the corporation ban. The TPSA,\\nwhich had vigorously defended the residency requirements struck down by this\\ncourt, later admitted that there was a fear that “large stores could disrupt what\\nhad been a very stable business climate” and there could be a “Wal-Martiza-\\ntion” of the Texas package store market. Further, the Texas legislature was\\naware that, but for the Cooper I decision, the TPSA would not have suggested\\nand supported the public corporation ban.\\n Based largely on those findings regarding the conduct and motivations\\nof the TPSA, the district court concluded that the Texas legislature enacted the\\npublic corporation ban with the same protectionist motivations. This despite\\nthe provision’s drafter testifying that he told legislators the purpose of the bill\\nwas accountability. He was the only witness at the committee hearings and\\ntold the legislators that the purpose of the bill was to promote accountability,\\nor “to have real human beings who are easily identifiable, who are close to the\\nbusiness, and who ultimately bear personal responsibility for the actions of the\\npackage store.” Years later—at trial—he admitted that he “knew that any bill\\n[enacted] might be challenged” and that his “assignment was to craft a bill\\nwhich . . . would survive a commerce clause challenge.” The district court de-\\ntermined that the “TPSA’s chief concern was maintaining the business climate\\n\\n\\n\\n 9 Walmart also argues that actions taken by the TPSA evidence a history of discrimi-\\nnation. However, the actions of the TPSA do not control this inquiry.\\n 9\\n\\f Case: 18-50299 Document: 00515078735 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\ncreated by the residency requirement,” and that the legitimate rationales con-\\ncerning accountability were “pretextual.” However, in Veasey, we reiterated\\nthat overreliance on “post-enactment testimony” from actual legislators is\\nproblematic, and not “the best indicia of the Texas Legislature’s intent.” Ve-\\nasey, 830 F.3d at 234. In light of Veasey, after-the-fact statements made by a\\nnon-legislator are certainly not sufficient indicia of legislative intent.\\n The district court did not find evidence connecting any Texas legislator\\nto the conclusion that the accountability rationale was pretextual. The only\\ncomments from a Texas legislator the district court relied on were made by\\nstate Senator Kenneth Armbrister. When asked to explain the purpose of the\\npublic corporation ban, Armbrister stated that the ban meant “you can’t have\\na package store inside a Walmart” and “Walmart can’t own the package store.”\\nAs the district court noted, during the senate floor debate on Senate Bill 1063\\n(which became § 22.16), Armbrister agreed with state Senator Henderson’s re-\\nmark that the Legislature “wanted to have somebody from Texas with a license\\nthat you could get ahold of . . . to enforce the code.”\\n However, the district court did not provide the context of the senators’\\nstatements. Armbrister and Henderson were engaged in a discussion about the\\nmotivation for the public corporation ban when Armbrister stated that the pur-\\npose was to have a better way to “track” package store owners. Specifically,\\nArmbrister stated, “I think what” both “the industry . . . and the [TABC] was\\ntrying to do is a better tracking system, because . . . you’ve got large-scale cor-\\nporations that operate . . . it all ties in to(sic) the operation phase.” Henderson\\nreplied by explaining that a corporation could own a package store by obtaining\\nthe permit through a local licensee (presumably because Texas previously had\\nenforceable durational-residency requirements), referring to the mechanism\\nemployed by corporations as a “fake-a-roo.” Next, Armbrister attempted to ex-\\nplain some exemptions to the ban when Henderson replied that the “fake-a-\\n 10\\n\\f Case: 18-50299 Document: 00515078735 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nroo” was used because the legislators previously wanted only people from\\nTexas to hold P permits “to enforce the code.”\\n Significantly, Henderson asked Armbrister, “It’s not the bill . . . that\\nkeeps foreign ownership from coming in and . . . getting licenses, that kind of\\nthing?” (emphasis added). To which Armbrister answered, “No. Those . . . both\\nthose bills are still pending in committee.” Henderson replied, “Good. Thank\\nyou.” Near the close of the floor debate, the Texas Senate voted to pass the bill.\\nThe floor debate was devoid of discriminatory remarks directed toward out-of-\\nstate competition generally. The transcript reveals that there were entirely\\nseparate bills being advanced to address foreign owners. Moreover, the “Expla-\\nnations and Arguments” in support of Senate Bill 1063 indicate that the reason\\nfor the ban was to ensure that owners were known to the community and “could\\nbe held accountable for responsible operation.” The document further states,\\n“Courts have recently struck down . . . Texas resident law saying that it penal-\\nized out of state citizens” but there remained a need to have a human who is\\neasily identifiable and responsible for the actions of a given package store busi-\\nness. The legislative history is merely “evidence of a legislative desire to treat\\ndifferently two business forms . . . a distinction based not on domicile but on\\nbusiness form.” Allstate, 495 F.3d at 161.\\n There is no direct evidence of a discriminatory purpose in the legislative\\nhistory; Plaintiffs rely on circumstantial evidence. The motivations and lobby-\\ning efforts of the TPSA are not direct evidence of legislative purpose. An ad-\\nmission that the drafter sought to create a law that would survive a constitu-\\ntional challenge is not evidence of a discriminatory legislative purpose. There\\nare no “stray protectionist remarks” in the legislative history, and even if there\\nwere, such remarks “are insufficient to condemn” an otherwise nondiscrimina-\\ntory statute. Id.\\n\\n\\n 11\\n\\f Case: 18-50299 Document: 00515078735 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n Turning to a third factor, the district court failed to apply the “presump-\\ntion of legislative good faith” in finding that the sequence of events that led to\\nthe enactment of § 22.16 evidences a discriminatory purpose. Perez, 138 S. Ct.\\nat 2324. In line with the district court, Walmart relies on the Texas Legisla-\\nture’s failed attempt to moot Cooper I during the 1993 session and the Legis-\\nlature’s enactment of the public corporation ban during the 1995 session. The\\nTABC argues that it is irrelevant that the corporation ban was enacted in re-\\nsponse to Cooper I. TPSA argues that the district court’s conclusion based in\\npart on post-Cooper I conduct is inconsistent with controlling case law.\\n In Perez, the Supreme Court made it clear that “[t]he allocation of the\\nburden of proof and the presumption of legislative good faith are not changed\\nby a finding of past discrimination.” Id. at 2324. Past discrimination is merely\\none potential evidentiary source. Id. The district court specifically found that\\n“if not for the Fifth Circuit striking down Texas’s residency requirement, TPSA\\nwould not have proposed, and the Legislature would not have enacted, the ban\\non public corporations holding package store permits.”\\n While that finding might be true, there are problems with concluding\\nthose events evidence a purpose to discriminate. As stated previously, the\\nTPSA’s motivations and actions are not sufficient indicia of legislative intent.\\nAs a result, the only remaining evidence is the Texas Legislature’s actions in\\nsupport of a discriminatory purpose during Cooper I. The district court flipped\\n“the evidentiary burden on its head” based only on the recent history of dis-\\ncrimination. Id. at 2325. More than requiring Walmart to present specific\\nevents evidencing a discriminatory purpose connected to the public corporation\\nban, the district court placed the burden on appellants to provide evidence that\\nthe Texas Legislature had a true “change of heart” with respect to the resi-\\ndency requirements while enacting a ban that affects public corporations irre-\\nspective of location. Id. at 2326.\\n 12\\n\\f Case: 18-50299 Document: 00515078735 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n The burden flip was especially problematic because the district court’s\\nfindings arguably indicate that the Legislature sought to comply with the de-\\nmands of the dormant Commerce Clause. The district court noted that Texas\\ndid not stop enforcing durational residency requirements as applied to package\\nstore owners until 2007, more than twelve years after § 22.16 was enacted.\\nThis also meant that the public corporation ban was enforced against Texas\\ncorporations while Texans still believed it was proper to deny would-be pack-\\nage store owners from outside the state. As far as the record reveals, Texas\\ncorporations were the only companies affected by the public corporation ban\\nfor at least a decade after it was enacted. 10 In any event, the district court\\ncommitted clear error by failing to apply a presumption of good faith to the\\nenactment of the public corporation ban.\\n The previously noted errors are further compounded because the district\\ncourt misapplied the first Arlington factor. The first factor asks whether “a\\nclear pattern of discrimination emerges from the effect of the state action.” All-\\nstate, 495 F.3d at 160. The district court found that the corporation ban had\\nthe “effect of barring nearly all out-of-state companies with the scale and ca-\\npabilities necessary to serve the Texas retail liquor market.” That finding does\\nnot answer the relevant question. For this dormant Commerce Clause inquiry,\\nthe question is: Does the legislative action affect Walmart based on its status\\nas an out-of-state public corporation? See Allstate, 495 F.3d at 160–61. This\\nerror highlights a general flaw throughout the district court’s findings.\\n\\n\\n\\n\\n 10 The public corporation ban does have a “grandfather clause” that exempts corpora-\\ntions that held a P permit before the day the statute was enacted. Tex. Alco. Bev. Code. §\\n22.16(f). Because Texas enforced durational residency requirements for package store owners\\nuntil 2007, the exempted corporations are Texas-based firms. This clause arguably provides\\nsome evidence of an effort by the Legislature to benefit in-state corporations, which the court\\ncan consider along with other evidence in this case.\\n 13\\n\\f Case: 18-50299 Document: 00515078735 Page: 14 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n The evidence indicates that the Legislature intended to ban public cor-\\nporations from obtaining P permits after the state lost its ability to enforce the\\ndurational residency requirements for other permits. Based on the optics, the\\ndistrict court made several assertions without considering a critical point: Un-\\nder the law of the Fifth Circuit, evidence that legislators intended to ban po-\\ntential permittees based on company form alone is insufficient to meet the pur-\\npose element of a dormant Commerce Clause claim. See Allstate, 495 F.3d at\\n161–62 (rejecting Allstate’s discriminatory purpose argument because the evi-\\ndence indicated only a desire to treat business forms differently, without re-\\ngard to location); Ford Motor Co. v. Texas Dep’t of Transp., 264 F.3d 493, 500–\\n01 (5th Cir. 2001) (rejecting discriminatory purpose argument because “the\\nlegislative history indicate[d] the legislature’s intent to prevent manufacturers\\nfrom utilizing their superior market position to compete against dealers in the\\nretail car market”); see also Exxon Corp. v. Maryland, 437 U.S. 117, 125 (1978)\\n(rejecting claims of disparate treatment because the statute did “not discrimi-\\nnate against interstate goods” or favor local companies over interstate compa-\\nnies). Section 22.16 bans public corporations from obtaining P permits irre-\\nspective of location. The ban’s effect on all public corporations provides strong\\nevidence that the Legislature did not purposefully discriminate against out-of-\\nstate corporations. 11\\n While the district court committed several errors in finding that the Leg-\\nislature adopted the public corporation ban with a purpose to discriminate\\nagainst interest commerce, the record also contains circumstantial evidence\\nthat could support such a finding. As acknowledged, Texas has a history of\\n\\n\\n 11 The application of the first Arlington factor underscores why it is debatable whether\\nthe factors should be applied in the dormant Commerce Clause context. Under Allstate, Ford,\\nand Exxon, a statute can create an obvious and significant barrier against out-of-state eco-\\nnomic actors and, nevertheless, not evidence a discriminatory purpose. Good drafting can\\nrender the first Arlington factor hollow.\\n 14\\n\\f Case: 18-50299 Document: 00515078735 Page: 15 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\ndiscriminating against out-of-state alcohol retailers. That history has signifi-\\ncant “probative value in connection” with the discriminatory purpose inquiry.\\nVeasey, 830 F.3d at 232. However, affirming the district court’s finding of a\\npurpose to discriminate based on the history alone would create an odd result.\\nStates should be able to respond to a court deeming one of its laws unconstitu-\\ntional. In addition, the present inquiry is further complicated because Texas\\nenforced durational residency requirements against would be P permit holders\\nfor years after the public corporation ban was enacted. In this context, overre-\\nliance on the history alone would be a mistake. In line with Veasey, 12 and the\\nSupreme Court’s analysis in Perez, the history of discrimination should be\\nweighed “with any other direct and circumstantial evidence of th[e] Legisla-\\nture’s intent.” Perez, 138 S. Ct. at 2327.\\n The district court committed errors in its findings with respect to the\\nother Arlington factors. The appropriate action is to remand the discriminatory\\npurpose issue for reconsideration in light of this opinion. See Veasey, 830 F.3d\\nat 235 (explaining that discriminatory intent is a factual matter that, when set\\naside for an error of law, should be remanded for further proceedings).\\n C.\\n Moving on in the dormant Commerce Clause analysis, the district court\\nfound that the public corporation ban does not have a discriminatory effect. 13\\nThe district court reached that determination by following Allstate, 14 Ford, 15\\n\\n\\n 12 830 F.3d at 232 (noting that “relatively contemporary examples of discrimination\\nidentified by the district court are limited in their probative value in connection with discern-\\ning the Texas Legislature’s intent”).\\n 13 The district court also acknowledged its “odd” result, finding the public corporation\\n\\nban has a discriminatory purpose but not a discriminatory effect. As stated in Section III.B\\nof this opinion, that result was partially attributable to the district court’s misapplication of\\nthe first Arlington factor. However, it also highlights the logical inconsistency that might\\nresult from applying the Arlington factors in a dormant Commerce Clause case.\\n 14 495 F.3d 162–63 (relying on Exxon and rejecting discriminatory effect argument).\\n 15 264 F.3d at 500–02 (relying on Exxon and rejecting discriminatory effect argument).\\n\\n 15\\n\\f Case: 18-50299 Document: 00515078735 Page: 16 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nand Exxon. 16 Exxon is the controlling dormant Commerce Clause case for con-\\nsidering a facially neutral statute that bans particular companies from a retail\\nmarket. In Exxon, oil companies brought a dormant Commerce Clause chal-\\nlenge to invalidate a Maryland statute prohibiting producers and refiners of\\npetroleum products from operating retail service stations in the state. The oil\\ncompanies argued that the statute had the effect of protecting in-state inde-\\npendent dealers from out-of-state competition. Exxon, 437 U.S. at 125. The\\nplaintiffs relied on the fact that the burden of the prohibition fell solely on in-\\nterstate companies. Id.\\n The Supreme Court rejected the argument and explained that because\\n“the burden of [a] state regulation falls on some interstate companies does not,\\nby itself, establish a claim of discrimination against interstate commerce.” Id.\\nat 126. The Court’s reasoning was based on the following factors: (1) The pro-\\nhibition did not restrict interstate dealers in the retail market; (2) did not re-\\nstrict the flow of interstate goods; (3) did not place added costs on interstate\\ngoods; and (4) did not distinguish between in-state and out-of-state retailers in\\nthe market. Id. The Court declared that the absence of those factors “distin-\\nguishe[d] th[e] case from those in which a State has been found to have dis-\\ncriminated against interstate commerce.” Id. A burden on some interstate com-\\npanies is not a violation if “in-state [retailers] will have no competitive ad-\\nvantage over out-of-state [retailers].” Id.\\n In Ford, this court considered Exxon and rejected the plaintiff’s discrim-\\ninatory effect argument. The case involved a Texas statute that banned auto-\\nmobile manufacturers from obtaining a license to become car dealers in the\\nstate. This court explained that a statute should be examined by “its effect on\\nsimilarly situated business entities.” Ford, 264 F.3d at 501. Ford had failed to\\n\\n\\n 16 437 U.S. at 125–26 (rejecting argument that statute had a discriminatory effect).\\n 16\\n\\f Case: 18-50299 Document: 00515078735 Page: 17 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nshow that the Texas statute in question “discriminate[d] according to the ex-\\ntent of a business entity’s contacts with the State. . . . [B]ut rather [showed\\ndiscrimination] on the basis of Ford’s status as an automobile manufacturer.”\\nId. at 502. It was irrelevant whether Ford is domiciled in Texas or Michigan.\\nId. Either way, Ford was proscribed from entering the Texas automobile retail\\nmarket. The statute, however, did not discriminate against independent auto-\\nmobile dealers seeking to enter the Texas market. Id. Even if the statute “pre-\\nvent[ed] manufacturers from utilizing their superior market position to com-\\npete against dealers in the retail car market[,]” the statute did not have a dis-\\ncriminatory effect on interstate commerce. Id. at 500. A statute can have a\\ndiscriminatory effect if it provides a “competitive advantage to in-state inter-\\nests vis-à-vis similarly situated out-of-state interests.” Id. at 501 (emphasis\\nadded).\\n Allstate is the most recent of the controlling cases. 17 Allstate, which con-\\ntrolled approximately 15% of the automobile insurance market in Texas, initi-\\nated a plan to enter the auto body repair business by acquiring Sterling Colli-\\nsion Centers, Inc. (“Sterling”). Sterling was a multi-state chain of repair shops,\\nincluding 15 shops in Texas. 495 F.3d at 155. Allstate believed it could mini-\\nmize expenses for unnecessary or overpriced repairs, and eventually started\\nfunneling repair opportunities to Sterling instead of other local repair shops.\\nId. Texas later passed a bill that barred insurers from acquiring an interest in\\n\\n\\n 17 In Churchill Downs Inc. v. Trout, this court acknowledged that, “[i]n cases where\\nthe challenged statutes are facially neutral, the Supreme Court has evinced a reluctance to\\ntake an expansive view of the concept of ‘discriminatory effects.’” 589 F. App’x 233, 236 (5th\\nCir. 2014). This court noted that the Court reached the conclusion in Exxon by using a narrow\\ndefinition of “substantially similarly entities.” Id. The Court has been mostly reluctant to find\\nthat a facially neutral statute has a discriminatory effect. See id. (discussing Minnesota v.\\nClover Leaf Creamery Co., 449 U.S. 456, 458 (1981), in which the court upheld a facially-\\nneutral statute); id. at n.7 (citing Erwin Chemerinsky, Constitutional Law 447 (4th ed. 2011)\\n(citing Clover Leaf as an additional example of a case where “discriminatory impact” did not\\ninvalidate a facially neutral statute)).\\n 17\\n\\f Case: 18-50299 Document: 00515078735 Page: 18 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nauto body shops. 18 Id. at 156. Allstate later filed suit, arguing in part that the\\nbill violated the dormant Commerce Clause. Allstate chiefly argued that the\\nbill was part of a coordinated political effort to hurt its Sterling venture and to\\nmaintain the market dominance of local Texas body shops. Id. The district\\ncourt rejected the claim. Id. at 157.\\n On appeal, the plaintiffs argued that the bill had a discriminatory effect\\nbecause it favored in-state companies and would shift some services from out-\\nof-state providers to in-state providers. 495 F.3d at 162. Relying principally on\\nExxon, this court rejected the discriminatory effect argument, stating that “[a]\\nstatute impermissibly discriminates only when it discriminates between simi-\\nlarly situated in-state and out-of-state interests.” Id. at 163.\\n In the present case, the public corporation ban treats in-state and out-\\nof-state public corporations the same. Neither in-state nor out-of-state public\\ncorporations may obtain a P permit or own a package store. There are “no bar-\\nriers whatsoever to out-of-state” companies obtaining P permits so long as they\\nare not a public corporation as defined by the statute. Allstate, 495 F.3d at 163.\\nFurther, § 22.16 does not “prohibit the flow of interstate [liquor retail prod-\\nucts], place additional costs upon [out-of-state retailers], or distinguish be-\\ntween in-state and out-of-state companies in the retail market.” Id. (quotation\\nmarks omitted). “[T]he absence of any of these factors fully distinguishes this\\ncase from those in which a State has been found to have discriminated against\\ninterstate commerce.” Id. (quotation marks omitted). As the district court\\nnoted, Texas-based public corporations are prohibited from selling liquor in the\\nstate. Meanwhile, several companies owned by out-of-state residents have en-\\ntered the Texas liquor retail market, including one of the ten largest liquor\\n\\n\\n\\n 18The bill also included a grandfather clause that exempted facilities already open for\\nbusiness at the time. Allstate, 495 F.3d at 157 n.6.\\n 18\\n\\f Case: 18-50299 Document: 00515078735 Page: 19 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nretailers in the state. 19 Despite the fact that the public corporation ban un-\\ndoubtedly blocks some economic actors from entering the Texas liquor retail\\nmarket, 20 we agree with the district court that the ban does not have a discrim-\\ninatory effect on interstate commerce. 21\\n Because the district court committed clear error in finding that § 22.16\\nwas enacted with a purpose to discriminate against interstate commerce, and\\ngiven that we have concluded that the facially neutral ban does not have a\\ndiscriminatory effect, we must remand this case for reconsideration of whether\\nthe ban was enacted with a discriminatory purpose.\\n\\n\\n\\n\\n 19 Fine Wines & Spirits of North Texas, LLC is owned by a Maryland resident.\\n 20 See Ford, 264 F.3d at 512 (Jones, J., concurring) (concurring because Exxon is con-\\ntrolling but noting the barrier to retail competition from out-of-state).\\n 21 There is a tension, however, between the Court’s analysis in Exxon and dicta from\\n\\nits recent opinion in Tennessee Wine. 139 S. Ct. 2449. The case involved a set of Tennessee\\nlaws that placed durational-residency requirements on those seeking to obtain or renew a\\nlicense to operate a liquor store in the state. Id. at 2456. One of the provisions provided that\\na corporation could not obtain a license to operate a liquor store unless all its stockholders\\nare residents of Tennessee. Id. at 2457. The Sixth Circuit had previously found that provision\\nfacially discriminatory and affirmed that it violated the dormant Commerce Clause. Byrd v.\\nTennessee Wine & Spirits Retailers Ass’n, 883 F.3d 608, 626, 628 (6th Cir.), cert. granted, 139\\nS. Ct. 52 (2018), and aff’d sub nom. Tennessee Wine, 139 S. Ct. 2449. The provision was not\\nat issue in Tennessee Wine, but the majority commented on its discriminatory nature and its\\npractical effect. The Court referred to the 100-percent-resident shareholder requirement as\\na “blatant” violation of the Commerce Clause. Id. at 2457. The Court also noted that the\\npractical effect of the provision was that “no corporation whose stock is publicly traded may\\noperate a liquor store in the State.” Id. But the Court did not say more on that point. Con-\\ncluding the opinion, the majority added that “the predominant effect” of the 100-percent-\\nresident shareholder provision was to protect members of the Tennessee Wine and Spirits\\nRetailers Association from out-of-state competition. Id. at 2476. The dicta in that opinion\\nleaves many questions to be answered. Was the predominant effect of the provision protec-\\ntionism because it was facially discriminatory or because of its practical effect? The Tennes-\\nsee laws were all facially discriminatory, so the Court never conducted a discriminatory effect\\nanalysis. As this court has previously noted, “jurisprudence in the area of the dormant Com-\\nmerce Clause is, quite simply, a mess.” Churchill Downs, 589 F. App’x at 235. Because of the\\nambiguity in the dicta from Tennessee Wine, we decline to conclude that the Court meant to\\nalter the discriminatory effect analysis when specifically considering a general public corpo-\\nration ban. Exxon remains the controlling Supreme Court precedent.\\n 19\\n\\f Case: 18-50299 Document: 00515078735 Page: 20 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n D.\\n The district court analyzed another means by which it concluded could\\ninvalidate a statute under the dormant Commerce Clause even if the statute\\ndid not discriminate facially, in purpose or in effect. The district court con-\\ncluded that “a law that does not directly discriminate against interstate com-\\nmerce” can still violate the dormant Commerce Clause if it imposes a burden\\non interstate commerce that is “clearly excessive” in relation to the “putative\\nlocal benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). The dis-\\ntrict court determined that § 22.16 violates the dormant Commerce Clause un-\\nder the Pike test. We conclude that remand is needed on this ground as well.\\n A court should consider: (1) whether the law burdens interstate com-\\nmerce; 22 (2) whether there is a “legitimate local interest” in the law; 23 and (3)\\nwhen both are present, if the extent of the burden should be tolerated based on\\nthe local interest involved, including if the interest “could be promoted as well\\nwith a lesser impact on interstate activities.” 24 The inquiry is known as the\\nPike balancing test. Churchill Downs, 589 F. App’x at 237. When applying the\\nPike test in this context, “[a] statute imposes a burden when it inhibits the flow\\nof goods interstate.” Allstate, 495 F.3d 151. Having already held that the public\\ncorporation ban was enacted with a purpose to discriminate, the district court\\nfurther concluded that “the burden imposed on [interstate] commerce” by the\\npublic corporation ban “is clearly excessive in relation to the putative local ben-\\nefits.” Pike, 397 U.S. at 142.\\n\\n\\n\\n\\n 22 Pike, 397 U.S. at 142.\\n 23 Id.\\n 24 Id. (emphasis added).\\n\\n 20\\n\\f Case: 18-50299 Document: 00515078735 Page: 21 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n Appellants argue that the Pike test does not apply to a nondiscriminatory\\nregulation of alcohol beverage retailing under the Twenty-first Amendment. 25\\nWalmart contends that the controlling case law is clear that Pike can be ap-\\nplied to alcohol-related laws despite the Twenty-first Amendment.\\n The Supreme Court has not considered the issue. Further, none of our\\nsister circuits have struck down a state regulation of liquor under Pike while\\nalso concluding that the Twenty-first Amendment applied. See Lebamoff En-\\nterprises, Inc. v. Huskey, 666 F.3d 455, 467 (7th Cir. 2012) (Hamilton, J., con-\\ncurring) (“What we do not find is a case applying Pike balancing and holding\\nthat a non-discriminatory state alcohol law flunks.”). Compare Baude v. Heath,\\n538 F.3d 608 (7th Cir. 2008) (striking down statute that was discriminatory in\\neffect while citing Pike without addressing the Twenty-first Amendment) with\\nLebamoff, 666 F.3d at 468 (Hamilton, J., concurring) (“The Baude opinion does\\nnot, however, provide a persuasive basis for applying Pike balancing to non-\\ndiscriminatory state alcohol laws.”). Application of Pike in the face of § 2 of the\\nTwenty-first Amendment is questionable in light of the Court’s recent declara-\\ntion that states “remai[n] free to pursue” legitimate interests aimed at regu-\\nlating the ill-effects and risks associated with the alcohol trade. Tennessee\\nWine, 139 S. Ct. at 2472 (alteration in original) (quotation marks omitted). 26\\n\\n\\n\\n 25 The TPSA asserts that Walmart failed to litigate Pike in the district court. However,\\nPike was either cited or raised by the parties numerous times during the district court pro-\\nceedings. Walmart did not waive the Pike issue.\\n 26 This is also true in light of the Court’s acknowledgement that three-tier systems for\\n\\nthe control and distribution of alcohol are “unquestionably legitimate.” Granholm, 544 U.S.\\nat 488–89 (quotation marks omitted). Various nondiscriminatory laws passed under three-\\ntier systems place at least some burden on interstate commerce. Pike balancing might be\\ndecisive in many cases. See Lebamoff, 666 F.3d at 469 (Hamilton, J., concurring). Granting\\ncourts the power to substitute a legislature’s policy considerations with its own when consid-\\nering nondiscriminatory alcohol-related laws seems to be in direct tension with state power\\ngranted by § 2. Such tension lends support for Justice Scalia’s contention that the Pike “in-\\nquiry is ill suited to the judicial function and should be undertaken rarely if at all.” CTS Corp.\\nv. Dynamics Corp. of Am., 481 U.S. 69, 95 (1987) (concurring).\\n 21\\n\\f Case: 18-50299 Document: 00515078735 Page: 22 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\n However, in Tennessee Wine, the Court “reiterate[d] that the Commerce\\nClause by its own force restricts state protectionism.” 139 S. Ct. at 2461 (em-\\nphasis added). While that is an ambiguous statement from a case involving a\\nfacially discriminatory provision, it is a signal that we need not get ahead of\\nthe Court by concluding that Pike balancing cannot be applied to a facially\\nneutral regulation of alcohol retailing. 27 So we proceed with the test.\\n The inquiry ends at our first step in the analysis. The district court de-\\ntermined that the public corporation ban places a substantial burden on inter-\\nstate commerce because it protects package stores owned by Texas residents\\nfrom out-of-state market entrants. The district court relied on evidence that\\n98% of the package stores in Texas are owned by in-state residents. Addition-\\nally, Walmart provided evidence that numerous out-of-state companies would\\nenter the Texas liquor retail market if the ban was not in place. Appellants\\nargued that the ban places an equal burden on in-state companies, presenting\\nevidence that the number of publicly traded companies domiciled in Texas that\\nare barred by the ban is roughly proportional to Texas’ share of the national\\npopulation and national economy. The district court rejected appellants’ evi-\\ndence and declared that “assessing disparate impact requires the Court to\\nmeasure the effect the public corporation ban has on the in-state and out-of-\\nstate companies that would otherwise serve the market if not for the ban.”\\nThere is no authority which supports that conclusion.\\n The district court’s analysis overlooks the controlling precedent. In\\nExxon, the Court instructed that the Commerce “Clause protects the interstate\\n\\n\\n\\n 27 The Court has cited Pike in dormant Commerce Clause cases involving alcohol-re-\\nlated laws. See Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573,\\n579 (1986) (evaluating the constitutionality of state’s lowest-price affirmation provision of\\nalcohol control law); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 270 (1984) (considering the\\nconstitutionality of a liquor excise tax). In the absence of controlling authority, we will not\\nexempt an entire category of laws from the Pike test.\\n 22\\n\\f Case: 18-50299 Document: 00515078735 Page: 23 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nmarket, not particular interstate firms.” Exxon, 437 U.S. at 128 (emphases\\nadded). The Court explained that interstate commerce is not “subjected to an\\nimpermissible burden” because some potential participants are shifted out of\\nthe in-state market. Id. at 127. 28 As noted in Allstate, “[t]he Supreme Court\\nhas ‘rejected the notion that the Commerce Clause protects the particular\\nstructure or methods of operation in a . . . market.’” Allstate, 495 F.3d at 163–\\n64 (quoting CTS Corp., 481 U.S. at 93–94). In that case, this court rejected the\\nassertion that there was a substantial burden on interstate commerce, in part\\nbecause the Texas law in question did not prohibit interstate economic actors\\nfrom entering the in-state market. Id. at 164 (rejecting assertion that a com-\\npany’s inability to expand imposes a burden on interstate commerce). Similar\\nto Allstate, appellants in the present case have provided evidence that several\\npackage stores in Texas are owned and operated by out-of-state residents. See\\nid. (finding the same).\\n The district court should have considered evidence addressing the public\\ncorporation ban’s effect on the flow of interstate goods, or how the ban affects\\nthe flow of the potential market participant’s goods to the Texas liquor retail\\nmarket. See id. at 163 (“A statute imposes a burden when it inhibits the flow\\nof goods interstate.”); Ford, 264 F.3d at 503 (finding the plaintiff “failed to\\ndemonstrate that [the statute] will burden commerce by inhibiting the flow of\\ninterstate goods”); see also Exxon, 437 U.S. at 126 n.16 (“If the effect of a state\\n\\n\\n\\n 28 Walmart incorrectly asserts that Lewis v. BT Inv. Managers, Inc., informs the Pike\\ninquiry in this case. 447 U.S. 27 (1980). The Court made it clear that the prohibition in that\\ncase discriminated among similarly situated business entities according to their contact with\\nthe local state economy. See id. at 42 (“It follows that [the statue] discriminates among af-\\nfected business entities according to the extent of their contacts with the local economy. The\\nabsence of a similar discrimination between interstate and local producer-refiners was a most\\ncritical factor in Exxon.”) (emphasis in original). The Court determined that the statute had\\na discriminatory effect but concluded that it failed the Pike test. Id. Again, Exxon, Ford, and\\nAllstate are controlling in this case.\\n 23\\n\\f Case: 18-50299 Document: 00515078735 Page: 24 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nregulation is to cause local goods to constitute a larger share, and goods with\\nan out-of-state source to constitute a smaller share, of the total sales in the\\nmarket . . . the regulation may have a discriminatory effect on interstate com-\\nmerce.”). The record is devoid of such evidence. Therefore, a remand is neces-\\nsary to allow the trial court to find facts for proper application of the Pike test. 29\\n We vacate the portion of the district court’s judgment that the public\\ncorporation ban violates the dormant Commerce Clause because remand is\\nwarranted on two separate grounds.\\n E.\\n The district court also determined that the public corporation ban does\\nnot violate the Equal Protection Clause because the ban is rationally related\\nto the state’s legitimate purpose of reducing the availability and consumption\\nof liquor throughout Texas. Walmart argues that (1) heightened scrutiny\\nshould apply to the ban because the law imposes an “absolute deprivation” of\\na benefit due to the applicant’s supposed wealth; and (2) the ban has the hall-\\nmarks of “animus” against public corporations. Walmart adds that the ban is\\nalso irrational. Appellants argue that the public corporation ban is an economic\\nregulation that is not subject to heightened review and clearly survives ra-\\ntional basis review. We agree with the latter.\\n Under the Equal Protection Clause of the Fourteenth Amendment, “[n]o\\nState shall . . . deny to any person within its jurisdiction the equal protection\\nof the laws.” U.S. Const. amend. XIV, § 1. Walmart has failed to provide sup-\\nport for its assertion that a general ban on public corporations warrants height-\\nened scrutiny. 30 Walmart is not a member of a protected class and the public\\n\\n\\n 29 The district court also found that the public corporation ban is rationally related to\\na legitimate state interest. However, because there is not a sufficient factual record to weigh\\nagainst the state interest, we do not consider the issue at this time. A remand is warranted.\\n 30 Walmart’s contention, that the ban was enacted with animus toward public corpo-\\n\\nrations generally and animus toward Walmart specifically, may be true. However, Walmart\\n 24\\n\\f Case: 18-50299 Document: 00515078735 Page: 25 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\ncorporation ban does not infringe upon a fundamental right. Therefore, we ap-\\nply a rational basis review. Hines v. Alldredge, 783 F.3d 197, 202–03 (5th Cir.\\n2015). “Under this standard, a legislative classification ‘must be upheld\\nagainst equal protection challenge if there is any reasonably conceivable state\\nof facts that could provide a rational basis for the classification.’” Glass v. Pax-\\nton, 900 F.3d 233, 244–45 (5th Cir. 2018) (quoting FCC v. Beach Commc’ns,\\nInc., 508 U.S. 307, 313 (1993)). The parties challenging the “presumption of\\nvalidity” granted to legislative classifications must negate every conceivable\\nbasis which might support the legislation. Id. at 245.\\n Rational basis review is fact intensive. The review “places no affirmative\\nevidentiary burden on the government, [but] plaintiffs may nonetheless negate\\na seemingly plausible basis for the law by adducing evidence of irrationality.”\\nSt. Joseph Abbey v. Castille, 712 F.3d 215, 223 (5th Cir. 2013). While a “hypo-\\nthetical rationale” is acceptable, it “cannot be fantasy.” Id. The government\\naction “must rationally relate to the state interests it articulates.” Id. “[W]e\\nwill examine the State[’s] rationale informed by the setting and history of the\\nchallenged rule.” Id.\\n The district court determined that the public corporation ban is conceiv-\\nably related to Texas’ legitimate purpose to reduce the availability and con-\\nsumption of liquor. On appeal, Walmart contends that this conclusion was\\nmade up of “hypothetical . . . lawful links.” Walmart adds that allowing the ban\\nwould “justify banning any group the Legislature might conceivably believe\\n\\n\\n\\n\\nhas failed to provide a single case indicating that heightened scrutiny should be applied to\\nsuch an Equal Protection Claim. Walmart cites Bishop v. Smith. 760 F.3d 1070, 1099–1100\\n(10th Cir. 2014) (Holmes, J., concurring). However, Bishop did not involve an application of\\nheightened scrutiny based on animus toward corporations. Walmart has also failed to provide\\nsupport for its contention that a corporation’s perceived wealth warrants inclusion in a pro-\\ntected class.\\n 25\\n\\f Case: 18-50299 Document: 00515078735 Page: 26 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nwould be more successful at retail” and the hypothetical is “contrary to basic\\neconomic truth.” Walmart’s pleas are unavailing.\\n Walmart does not dispute that Texas has a legitimate interest in regu-\\nlating the consumption of liquor and limiting the effects of liquor-related ex-\\nternalities. The state could believe that excluding public corporations reduces\\nboth the total number of package store firms and overall liquor consumption,\\ndriving up prices. Relatedly, it is more than reasonable to assume that the\\nstate believed that public corporations have the capital and scale to offer liquor\\nwell below current prices. In fact, that assumption was included in Walmart’s\\nargument that the public corporation ban keeps liquor prices “artificially high”\\nand forces consumers to pay “non-competitive prices.” Walmart’s own argu-\\nments support the district court’s conclusion. Walmart has not negated the\\ntheory that excluding public corporations from the liquor retail market in-\\ncreases prices. We conclude that there is a rational basis for Texas’ decision to\\nban all public corporations from obtaining P permits. The public corporation\\nban does not violate the Equal Protection Clause.\\n F.\\n While this appeal was pending, the governor of Texas signed into law\\nHouse Bill 1545. Section 82 of the bill raises the five P permit limit created by\\nTex. Alco. Bev. Code § 22.04, to 250 P permits. A permittee may obtain up to\\n15 original P permits each year, and an unlimited number of permits pur-\\nchased from already-existing stores. Section 85 of the bill repeals Tex. Alco.\\nBev. Code § 22.05, the consanguinity exception to the five-permit limit. The bill\\ntakes effect on September 1, 2019. Tex. H.B. 1545, §§ 82, 84. Walmart now\\nseeks to withdraw its challenges to §§ 22.04 and 22.05, and has requested that\\nwe vacate the district court’s judgment in its favor with respect to those chal-\\nlenges. The parties agree that we should vacate the district court’s judgment\\n\\n\\n 26\\n\\f Case: 18-50299 Document: 00515078735 Page: 27 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50299\\nin Walmart’s favor with respect to those challenges. 31 Accordingly, we do not\\naddress Walmart’s challenges to §§ 22.04 and 22.05. The challenges are with-\\ndrawn. Remand is warranted in this case, and we leave for the district court to\\nconsider in the first instance whether the judgment in favor of Walmart with\\nrespect to §§ 22.04 and 22.05 should be vacated.\\n IV. Conclusion\\n For the reasons stated above, the district court’s judgment enjoining en-\\nforcement of § 22.16 is VACATED. The district court’s judgment that § 22.16\\ndoes not violate the Equal Protection Clause is AFFIRMED. The district court’s\\njudgment that § 22.16 offends the dormant Commerce Clause is VACATED\\nand REMANDED for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 31 Walmart did not file a motion but made its request in a Federal Rule of Appellate\\nProcedure 28(j) letter submitted to this court on June 17, 2019. On June 19, 2019, the TPSA\\nsubmitted a response to the 28(j) letter agreeing with Walmart. The TABC submitted a re-\\nsponse on June 20, 2019, agreeing that the district court’s judgment should be vacated.\\n\\n 27\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3667,"cells":{"id":{"kind":"number","value":4648818,"string":"4,648,818"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Daryl Glenn PAWLAK, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Daryl Pawlak"},"decision_date":{"kind":"string","value":"2019-08-15"},"docket_number":{"kind":"string","value":"17-11339"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Smith, Wiener, Elrod\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-11339 Document: 00515078178 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-11339 FILED\\n August 15, 2019\\n Lyle W. Cayce\\n Clerk\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff–Appellee,\\n\\nversus\\n\\nDARYL GLENN PAWLAK,\\n\\n Defendant–Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Daryl Pawlak was convicted of receipt of child pornography and access\\nwith intent to view child pornography involving a prepubescent minor. Pawlak\\nasserts that the district court erred in denying his motions to dismiss the\\nindictment and to suppress evidence, that the evidence was insufficient to sus-\\ntain his convictions on either count, and that the court clearly erred in applying\\n\\f Case: 17-11339 Document: 00515078178 Page: 2 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\na two-level sentencing enhancement for obstruction of justice. Finding no\\nerror, we affirm.\\n\\n I.\\n A.\\n In December 2014, federal law enforcement officials learned that a U.S.-\\nbased Internet protocol (“IP”) address was hosting a website called “PlayPen,”\\nwhich contained a significant amount of child pornography. United States v.\\nGanzer, 922 F.3d 579, 581 (5th Cir. 2019), petition for cert. filed (July 23, 2019)\\n(No. 19-5339). The website operated on an anonymity network and was\\naccessible using publicly available software known as The Onion Router\\n(“TOR”). Id.\\n\\n Unlike the traditional Internet, TOR software anonymizes a user’s\\nactual IP address (which can be tied to a physical location) by routing the user’s\\nconnection through a series of randomly selected computers on the network.\\nId. That feature generally makes it impossible for law enforcement officials to\\nidentify the administrators and users of websites containing child pornogra-\\nphy, such as PlayPen, without employing other investigative techniques. Id.\\n\\n In January 2015, the FBI executed a search warrant and obtained a copy\\nof the server hosting the PlayPen website, which it transferred to a\\ngovernment-controlled facility in Virginia. Id. After obtaining a second war-\\nrant from a magistrate judge in the Eastern District of Virginia, id., the FBI\\nbegan a thirteen-day sting operation aimed at unmasking the identities of\\nPlayPen users. 1\\n\\n\\n\\n\\n 1 The government notes that although it “did operate the PlayPen site during this\\nbrief period of time, it took ‘every possible effort to mitigate and prevent any additional phys-\\nical abuse to children.’” Such efforts included “remov[ing] a portion of the website that\\nencouraged members to produce and post new child pornography.”\\n 2\\n\\f Case: 17-11339 Document: 00515078178 Page: 3 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\n The operation centered on the use of specialized malware called the\\nNetwork Investigative Technique (“NIT”). Id. “The NIT was a form of malware\\nthat augmented the content sent by Playpen to the computers of Playpen users\\nwith directions instructing those computers to send identifying information to\\na computer controlled by the government,” id., including “the computer’s IP\\naddress and when the NIT determined [it]; a unique identifier for the computer\\ngenerated by the NIT; the type of operating system used by the computer and\\nthe operating system’s active username . . . ; the computer’s host name; and\\nthe computer’s media access control,” id. at 581–82. The government further\\nexplains that\\n [t]he NIT would not deploy onto a PlayPen user’s computer until\\n that individual logged into the website (which required them to\\n have the TOR browser, know the 16-character website address,[ 2]\\n and enter their login information for PlayPen), accessed a certain\\n section in the site, and then actually requested content by clicking\\n on a post in one of the more egregious sections.\\n\\n B.\\n Using the NIT, federal agents linked PlayPen user “notsoslow”—later\\ndetermined to be Daryl Pawlak—with an IP address associated with a resi-\\ndence in Johnson County, Texas. The user had been logged into PlayPen for\\nmore than fourteen hours before the NIT deployed on his computer in March\\n2015, and he had spent an additional hour-and-a-half on PlayPen during the\\nFBI’s operation of the website. The NIT also returned Pawlak’s computer user-\\nname (“d.pawlak”), the name of the computer (“Sigma94”), and the computer’s\\nMAC address.\\n\\n On October 1, 2015, after obtaining a search warrant for Pawlak’s\\nresidence, FBI agents interviewed Pawlak’s wife. Using the wife’s cell phone,\\n\\n\\n\\n 2 The website address was comprised of “a randomly generated stream of [sixteen]\\ncharacters ending in ‘.onion.’”\\n 3\\n\\f Case: 17-11339 Document: 00515078178 Page: 4 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nAgent Marya Wilkerson called Pawlak and recorded the conversation. On the\\ncall, Pawlak admitted, inter alia, that he had downloaded and viewed child\\npornography using laptops from two different employers, had an email address\\nutilizing the term “notsoslow,” had previously used a work computer with the\\nname of “Sigma94,” and believed his username on that computer was\\n“d.pawlak.” Pawlak also acknowledged that the computer (the “Sigma94 com-\\nputer”) had been in his possession from October 2014 until May 2015, when he\\nreturned it to his former employer, Sigma Cubed following his termination.\\n\\n In the recorded conversation, Pawlak stated that he had initially viewed\\nchild pornography approximately three or four years earlier while working for\\na previous employer. He admitted that he preferred child pornography involv-\\ning prepubescent females approximately seven to eleven years old, that he\\noften accessed such pornography on a website called “Girls Hub,” and that he\\nhad last viewed child pornography about one week before.\\n\\n Later that day, Pawlak and Agent Wilkerson engaged in a second conver-\\nsation that was not recorded. Pawlak admitted that he had attempted to delete\\nthe contents of the hard drive on his current work computer (the “Indepen-\\ndence Oil computer”) but was unable to do so.\\n\\n The FBI later acquired the Sigma94 computer from Sigma Cubed. Paw-\\nlak was the first and only employee to use the computer, which had remained\\nin a sealed box in Sigma Cubed’s offices after he returned it in May 2015.\\nFollowing a forensic examination, law enforcement officials discovered several\\nimages of child pornography in the temporary Internet cache of the Sigma94\\ncomputer. The presence of the images in the cache demonstrated that the files\\ncame from the Internet, as well as that they were received and stored on the\\ncomputer. Federal agents also found evidence of seven other images of child\\npornography on the computer.\\n\\n 4\\n\\f Case: 17-11339 Document: 00515078178 Page: 5 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\n In addition, federal agents captured information from when Pawlak\\naccessed the PlayPen website both before and during the thirteen days it was\\noperated by the government. Evidence showed that Pawlak clicked on several\\nposts containing child pornography involving prepubescent female children.\\n\\n In October 2015, the FBI obtained access to the Independence Oil com-\\nputer, on which investigators discovered approximately eight hundred images\\nand four videos of child pornography. Pawlak was charged with receipt of child\\npornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (Count One), and access\\nwith intent to view child pornography involving a prepubescent minor, in vio-\\nlation of 18 U.S.C. § 2252A(a)(5)(B) (Count Two).\\n\\n Pawlak moved to suppress the evidence obtained using the NIT, as well\\nas all other evidence discovered as a result of its deployment. He claimed that\\nthe warrant was void ab initio because it violated the scope of the issuing\\nmagistrate judge’s authority under Federal Rule of Criminal Procedure 41(b).\\nHe also moved to dismiss the indictment against him asserting that the gov-\\nernment’s operation of the PlayPen website constituted outrageous conduct.\\nThe district court denied both motions.\\n\\n Following a three-day trial, a jury convicted Pawlak on both counts. At\\nsentencing, the presentence report recommended a two-level obstruction-of-\\njustice enhancement relating to Pawlak’s attempt to delete the contents of the\\nhard drive on his Independence Oil computer. The district court overruled\\nPawlak’s objection to the enhancement. The court sentenced Pawlak to 210\\nmonths’ imprisonment on each count, to be served concurrently, followed by a\\nsupervised release term of fifteen years.\\n\\n Pawlak raises five issues on appeal. First, he asserts that the district\\ncourt erred in denying his motion to dismiss the indictment based on out-\\nrageous government conduct. Second, Pawlak avers that the court erred in\\n\\n 5\\n\\f Case: 17-11339 Document: 00515078178 Page: 6 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\ndenying his motion to suppress. Third, he contends that the evidence was in-\\nsufficient to sustain his conviction for access with intent to view child pornog-\\nraphy involving a prepubescent minor (Count Two). Fourth, Pawlak maintains\\nthat the evidence was insufficient to support a conviction for receipt of child\\npornography (Count One). Fifth, Pawlak claims that the district court clearly\\nerred by applying the U.S.S.G. § 3C1.1 obstruction-of-justice enhancement.\\n\\n II.\\n Pawlak avers that the district court erred in denying his motion to dis-\\nmiss. “[W]e review de novo whether outrageous conduct requires dismissal of\\nan indictment.” United States v. Sandlin, 589 F.3d 749, 758 (5th Cir. 2009).\\n\\n A.\\n “The due process clause protects defendants against outrageous conduct\\nby law enforcement agents.” United States v. Arteaga, 807 F.2d 424, 426 (5th\\nCir. 1986). However, “[g]overnment misconduct does not mandate dismissal of\\nan indictment unless it is so outrageous that it violates the principle of funda-\\nmental fairness under the due process clause of the Fifth Amendment.” Sand-\\nlin, 589 F.3d at 758–59 (citation omitted). Consequently, “the outrageous-\\nconduct defense requires not only government overinvolvement in the charged\\ncrime but a passive role by the defendant as well. A defendant who actively\\nparticipates in the crime may not avail himself of the defense.” Arteaga,\\n807 F.2d at 427.\\n\\n We evaluate the government’s conduct “in light of the undercover activ-\\nity necessary to the enforcement of the criminal laws.” United States v. Fortna,\\n796 F.2d 724, 735 (5th Cir. 1986) (citation omitted). The outrageous-conduct\\nstandard is “extremely demanding,” Sandlin, 589 F.3d at 758, and “a due pro-\\ncess violation will be found only in the rarest and most outrageous circum-\\nstances,” Arteaga, 807 F.2d at 426 (citation omitted).\\n\\n 6\\n\\f Case: 17-11339 Document: 00515078178 Page: 7 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\n B.\\n Pawlak asserts that, for three reasons, the district court erred in denying\\nthe motion to dismiss. First, he contends that he was a mere passive parti-\\ncipant in the enterprise because “there is no evidence that [he] posted to any\\nforums, communicated with others on the [PlayPen] site, shared information,\\nor in any way produced or uploaded any materials.” In doing so, Pawlak\\nattempts to distinguish United States v. Venson, 82 F. App’x 330, 332−33 (5th\\nCir. 2003) (per curiam), in which we rejected an outrageous-conduct defense in\\na case involving child pornography.\\n\\n Second, Pawlak maintains that, by operating the PlayPen website, the\\ngovernment aided in the public distribution of child pornography. Therefore,\\nin addition to offending standards of fairness and decency, the government\\nviolated federal law.\\n\\n Third, Pawlak states that the government’s actions ignored its internal\\npolicies concerning the investigation of Internet crimes because “the FBI took\\nno measures whatsoever to control the replication and distribution of pictures\\nand videos from its undercover website.” He also asserts that the government’s\\nactions in this case “resulted in the continued victimization of countless\\ninnocent children.” Consequently, Pawlak contends that because he was a\\nmere passive participant, and the government’s overinvolved conduct was out-\\nrageous, the court erred in denying the motion to dismiss.\\n\\n In response, the government maintains that “[t]he district court correctly\\ndenied Pawlak’s motion to dismiss based on alleged outrageous government\\nconduct given his willing and active participation in the offense.” It offers two\\narguments in support of that position.\\n\\n First, the government emphasizes that a defendant who actively par-\\ntakes in a crime cannot avail himself of the outrageous-conduct defense.\\n\\n 7\\n\\f Case: 17-11339 Document: 00515078178 Page: 8 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nConsequently, because Pawlak was “an active, willing, and predisposed child-\\npornography consumer,” he is not entitled to assert that defense. The govern-\\nment points to several Fifth Circuit precedents where, despite an active role\\nplayed by the government, we rejected the assertion of the outrageous-conduct\\ndefense because of the defendant’s willing participation. 3\\n\\n Pawlak actively viewed child pornography for several years before the\\nFBI’s investigation. Before the government’s operation of the PlayPen website,\\nPawlak spent nearly fourteen hours, over a six-month period, logged into the\\nsite. Moreover, he continued to seek out such material even after the FBI’s\\nPlayPen operation ended. Therefore, the government maintains, the\\noutrageous-conduct defense is not available.\\n\\n Second, the government emphasizes that we have never invalidated a\\nconviction based on the assertion of that defense. It also notes that we seem-\\ningly defined the outer limits of permissible government conduct in United\\nStates v. Tobias, 662 F.2d 381 (5th Cir. Unit B Nov. 1981).\\n\\n In Tobias, the DEA established a fake chemical-supply company and\\n“placed an advertisement offering over-the-counter sales of chemicals and lab-\\noratory equipment.” Id. at 383. The defendant in that case, Thomas Tobias,\\nplaced an order for various chemicals to manufacture cocaine. Id. Tobias later\\ntried to cancel the order by telephoning an undercover DEA agent after he\\ndetermined that cocaine would be too difficult to manufacture. Id. Pretending\\nto be sympathetic, the agent suggested that Tobias manufacture phencyclidine\\n(“PCP”). Id. at 383–84. Tobias then asked the agent to send him the chemicals\\nnecessary to make PCP. Id. at 384. After receiving the chemicals and formula\\n\\n\\n\\n 3See United States v. Ivey, 949 F.2d 759, 769 (5th Cir. 1991); United States v. Evans,\\n941 F.2d 267, 270–71 (5th Cir. 1991) (per curiam); United States v. Yater, 756 F.2d 1058,\\n1066 (5th Cir. 1985).\\n 8\\n\\f Case: 17-11339 Document: 00515078178 Page: 9 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nfor PCP, Tobias made more than a dozen calls to the fictitious company for\\nassistance with manufacturing. Id. The DEA eventually obtained a warrant\\nand found liquid PCP at Tobias’s residence. Id.\\n\\n We rejected Tobias’s assertion of the outrageous-conduct defense, finding\\nthat he “was a predisposed active participant, motivated solely by a desire to\\nmake money.” Id. at 387. We stressed “that government infiltration of crim-\\ninal activity is a recognized and permissible means of investigation.” Id. at 386\\n(internal quotation marks and citation omitted). Consequently, no due process\\nviolation occurred. See id. at 387. Nonetheless, we cautioned that the “case\\ndoes set the outer limits to which the government may go in the quest to ferret\\nout and prosecute crimes in this circuit.” Id.\\n\\n Against this backdrop, the government maintains that the FBI’s brief\\nsting operation involving the PlayPen website falls well short of the boundaries\\nestablished in Tobias. It notes that “[t]he FBI . . . did not create PlayPen,\\nand . . . it did not alter the site’s functionality, add additional child pornog-\\nraphy, or actively solicit new users. Rather, the government simply main-\\ntained the preexisting structure that Playpen website visitors allegedly used\\nto distribute and receive child pornography among themselves.” Accordingly,\\nthe government contends it was significantly less active than in Tobias because\\nit “only took over an existing site and did not solicit new members.” It therefore\\nurges us to affirm the denial of Pawlak’s motion to dismiss. 4\\n\\n Pawlak fails to establish either prong associated with the outrageous-\\nconduct defense. Concerning the requirement that the defendant play a pas-\\nsive role, the evidence demonstrates that Pawlak was an active consumer of\\nchild pornography both before and after the FBI’s sting operation. Moreover,\\n\\n\\n 4The government stresses that every district court to consider the outrageous-conduct\\ndefense in the context of the FBI’s operation of the PlayPen website has rejected it.\\n 9\\n\\f Case: 17-11339 Document: 00515078178 Page: 10 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nto access the PlayPen website, a user was required to obtain specialized\\nsoftware, enter a specific sixteen-character website address, and log in using a\\nunique username and password. Because Pawlak was an active participant in\\nthe crime, he is not entitled to assert the outrageous-conduct defense on that\\nground alone. See Arteaga, 807 F.2d at 427.\\n\\n Furthermore, the government’s conduct was not outrageous and did not\\nviolate fundamental fairness. Viewing the sting operation “in light of the\\nundercover activity necessary to the enforcement of the criminal laws,” Fortna,\\n796 F.2d at 735 (citation omitted), the government’s conduct does not run afoul\\nof the Fifth Amendment. Here, the FBI received judicial approval to operate\\nthe PlayPen site, and it did so for only thirteen days. During that time, the\\nFBI sought to mitigate the further exploitation of children by removing the\\nportion of the site that encouraged members to produce and upload new images\\nof child pornography.\\n\\n Ultimately, the sting operation successfully targeted a hidden website\\nwhere thousands of users were viewing a significant amount of child pornog-\\nraphy in a nearly untraceable manner. The operation also rescued hundreds\\nof children, including dozens in the United States, from sexual abusers. There-\\nfore, the district court did not err in denying the motion to dismiss.\\n\\n III.\\n Pawlak next claims that the district court erred in denying his motion to\\nsuppress. “We review the denial of a motion to suppress in the light most\\nfavorable to the prevailing party.” United States v. Hernandez, 670 F.3d 616,\\n620 (5th Cir. 2012). “The district court’s factual findings are reviewed for clear\\nerror, and its legal conclusions are reviewed de novo.” Id. “A finding of fact is\\nclearly erroneous if we are left with a definite and firm conviction that a mis-\\ntake has been committed.” Id. (internal quotation marks and citation omitted).\\n\\n 10\\n\\f Case: 17-11339 Document: 00515078178 Page: 11 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\n“We uphold a district court’s denial of a suppression motion if there is any rea-\\nsonable view of the evidence to support it.” United States v. Contreras,\\n905 F.3d 853, 857 (5th Cir. 2018) (internal quotation marks and citation\\nomitted).\\n\\n A.\\n “The fact that a Fourth Amendment violation occurred—i.e., that a\\nsearch or arrest was unreasonable—does not necessarily mean that the exclu-\\nsionary rule applies.” Herring v. United States, 555 U.S. 135, 140 (2009). The\\nSupreme Court has “repeatedly rejected the argument that exclusion is a\\nnecessary consequence of a Fourth Amendment violation.” Id. at 141. Accord-\\ningly, “[w]hen police act under a warrant that is invalid for lack of probable\\ncause,” id. at 142, “evidence obtained in objectively reasonable reliance on a\\nsubsequently invalidated search warrant typically should not be excluded.”\\nContreras, 905 F.3d at 857 (internal quotation marks and citation omitted).\\nMoreover, “a warrant issued by a magistrate normally suffices to establish that\\na law enforcement officer has acted in good faith in conducting the search.”\\nUnited States v. Leon, 468 U.S. 897, 922 (1984) (internal quotation marks and\\ncitation omitted).\\n\\n Nonetheless, there are four circumstances in which an “officer’s reliance\\non the magistrate’s probable-cause determination and on the technical suffi-\\nciency of the warrant he issues” is not objectively reasonable. United States v.\\nCherna, 184 F.3d 403, 407 (5th Cir. 1999) (citation omitted). First, “if the\\nmagistrate or judge . . . was misled by information in an affidavit that the\\naffiant knew was false or would have known was false except for his reckless\\ndisregard of the truth.” Leon, 468 U.S. at 923. Second, if the “magistrate\\nwholly abandoned his [neutral and detached] judicial role.” Id. Third, if the\\n“officer . . . rel[ied] on a warrant [that was] based on an affidavit so lacking in\\n\\n 11\\n\\f Case: 17-11339 Document: 00515078178 Page: 12 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nindicia of probable cause as to render official belief in its existence entirely\\nunreasonable.” Id. (internal quotation marks and citation omitted). And\\nfourth, if the warrant was “so facially deficient—i.e., in failing to particularize\\nthe place to be searched or the things to be seized—that the executing officers\\ncannot reasonably presume it to be valid.” Id.\\n\\n “We employ a two-step process for reviewing a district court’s denial of a\\nmotion to suppress when a search warrant is involved.” Cherna, 184 F.3d\\nat 407. First, we analyze “whether the good-faith exception to the exclusionary\\nrule” applies. Id. If the exception does apply, we affirm the denial of the\\nmotion to suppress. Id. If it does not, we review whether “the magistrate had\\na substantial basis for” determining that probable cause existed. Id. (citation\\nomitted).\\n\\n B.\\n Pawlak raises three arguments in support of his contention that the\\ndistrict court erred in denying his motion to suppress. First, he asserts that\\nthe court erred when it declined to require the testimony of Agent McFarlane,\\nthe affiant for the NIT warrant application, concerning McFarlane’s subjective\\nintent. Second, Pawlak maintains that the court erroneously concluded that\\nthe subjective intent of government officials was irrelevant because other\\ncourts later found the warrant to be valid.\\n\\n Third, Pawlak avers that the district court erred because the officers’\\nreliance on the warrant was not objectively reasonable. Pawlak contends that\\nIn re Warrant, 958 F. Supp. 2d 753 (S.D. Tex. 2013), “put the government on\\nnotice that using a warrant issued by a Magistrate Judge in one district to\\nexecute malware searches in another is not legal.” Consequently, because the\\ngovernment “was fully aware at least two years before it sought the NIT\\nWarrant . . . that [Federal Rule of Criminal Procedure] 41 did not permit\\n\\n 12\\n\\f Case: 17-11339 Document: 00515078178 Page: 13 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nmulti-district computer hacking,” its agents’ reliance on the warrant was not\\nobjectively reasonable.\\n\\n The government responds that Pawlak’s focus on “the subjective intent\\nof the officers who secured the NIT Warrant” is misplaced. It asserts that the\\n“good-faith inquiry is confined to the objectively ascertainable question wheth-\\ner a reasonably well trained officer would have known that the search was\\nillegal in light of all of the circumstances” (quoting Herring, 555 U.S. at 145).\\nThe government also avers that we may “not attempt an expedition into the\\nminds of police officers to determine their subjective belief regarding the\\nvalidity of the warrant” (quoting United States v. Payne, 341 F.3d 393, 400 (5th\\nCir. 2003)). Consequently, because “Pawlak does not point to any of the Leon\\nfactors that would suggest the officers failed to act in good faith,” the govern-\\nment posits that his “argument should fail.”\\n\\n Moreover, although the district court found that the magistrate judge\\nwho initially issued the NIT warrant exceeded the scope of her authority, it\\nalso highlighted that several other district courts had reached the opposite con-\\nclusion. Therefore, because the matter represented a close legal question, the\\ngovernment contends that it “did not act improperly in seeking th[e] warrant.”\\nThe government also stresses that because the officers deploying the NIT had\\nno reason to know that the magistrate judge had erred, their reliance on the\\nwarrant was objectively reasonable.\\n\\n Lastly, the government carefully distinguishes this case from In re War-\\nrant. It emphasizes that “the information sought to be seized in In re Warrant\\nwas considerably more extensive and intrusive than the identifying informa-\\ntion sought in this case,” and it underscores that “a single decision from a mag-\\nistrate judge in a dissimilar case did not give the government the unambiguous\\nknowledge that such warrants were impermissible.” Moreover, “that authori-\\n\\n 13\\n\\f Case: 17-11339 Document: 00515078178 Page: 14 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nties believed clarification of Rule 41(b) would be helpful does not somehow\\nprove that they knew the NIT Warrant could not validly issue under the cir-\\ncumstances of this case.”\\n\\n Our recent decision in Ganzer effectively compels the conclusion that the\\ndistrict court did not err in denying Pawlak’s motion to suppress. In that case,\\nwe found that the good-faith exception applied to evidence seized because of\\nthe NIT warrant, even assuming that the magistrate judge in the Eastern Dis-\\ntrict of Virginia exceeded the scope of her authority. Ganzer, 922 F.3d at 587–\\n90. Moreover, we declined to “construe the government’s efforts to have\\nRule 41(b) amended to specifically allow for warrants like the NIT warrant as\\nan admission that such warrants were not previously allowed, but rather as\\nan attempt to clarify an existing law’s application to new circumstances.” Id.\\nat 589.\\n\\n This case presents factual issues similar to those in Ganzer. Conse-\\nquently, because here, as there, “law enforcement officials involved in the issu-\\nance and execution of the NIT warrant acted with an objectively reasonable\\ngood-faith belief that their conduct was lawful,” id. at 590 (internal quotation\\nmarks, alteration, and citation omitted), the district court did not err in deny-\\ning Pawlak’s motion. Such a “conclusion is consistent with the holdings of each\\nof our sister circuits to have considered challenges to the NIT warrant.” Id. 5\\n\\n IV.\\n Pawlak contends that the evidence was insufficient on both counts. We\\n\\n\\n\\n See United States v. Moorehead, 912 F.3d 963, 970–71 (6th Cir. 2019); United States\\n 5\\n\\nv. Kienast, 907 F.3d 522, 528–29 (7th Cir. 2018); United States v. Henderson, 906 F.3d 1109,\\n1119–20 (9th Cir. 2018); United States v. Werdene, 883 F.3d 204, 217–18 (3d Cir. 2018);\\nUnited States v. McLamb, 880 F.3d 685, 690–91 (4th Cir. 2018); United States v. Levin,\\n874 F.3d 316, 322–24 (1st Cir. 2017); United States v. Horton, 863 F.3d 1041, 1051–52 (8th\\nCir. 2017); United States v. Workman, 863 F.3d 1313, 1317–21 (10th Cir. 2017).\\n 14\\n\\f Case: 17-11339 Document: 00515078178 Page: 15 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nreview de novo Pawlak’s sufficiency claims because he properly preserved the\\nissues by moving for a judgment of acquittal during trial. United States v.\\nMoreland, 665 F.3d 137, 148 (5th Cir. 2011). “In deciding whether the evidence\\nwas sufficient, we review all evidence in the light most favorable to the verdict\\nto determine whether a rational trier of fact could have found that the evidence\\nestablished the essential elements of the offense beyond a reasonable doubt.”\\nUnited States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007).\\n\\n A.\\n Although the government has broad authority to proscribe child pornog-\\nraphy, this authority is not unlimited. United States v. Williams, 553 U.S. 285,\\n289 (2008); see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 251–58 (2002).\\nIn Free Speech Coalition, the Court found that a federal statute banning “the\\npossession and distribution of any visual depiction that is, or appears to be, of\\na minor engaging in sexually explicit conduct, even if it contained only\\nyouthful-looking adult actors or virtual images of children generated by a com-\\nputer,” Williams, 553 U.S. at 289 (internal quotation marks and citation\\nomitted), was “overbroad and unconstitutional,” Free Speech Coal., 535 U.S.\\nat 258.\\n\\n The government notes that following Free Speech Coalition, defendants\\nin this circuit have challenged their child-pornography convictions by contend-\\ning “that the government failed to prove the children depicted in the pornog-\\nraphy were real, as opposed to ‘virtual,’ children.” We have rejected such a\\ndefense, concluding that “Free Speech Coalition did not establish a broad re-\\nquirement that the Government must present expert testimony to establish\\nthat the unlawful image depicts a real child.” United States v. Slanina,\\n359 F.3d 356, 357 (5th Cir. 2004) (per curiam). “The district court, as the trier\\nof fact . . . , was capable of reviewing the evidence to determine whether the\\n\\n 15\\n\\f Case: 17-11339 Document: 00515078178 Page: 16 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nGovernment met its burden to show that the images depicted real children.”\\nId. Moreover, “[j]uries are still capable of distinguishing between real and\\nvirtual images.” Id. (citation omitted).\\n\\n B.\\n Count Two charged Pawlak with access with intent to view child por-\\nnography involving a prepubescent minor in violation of 18 U.S.C.\\n§ 2252A(a)(5)(B). Pawlak contends that “there was no evidence presented that\\nthe representations of children in the images accessed . . . were actual, real\\nchildren,” as opposed to “computer generated or morphed images.” Conse-\\nquently, because “the court’s charge only allowed for the conviction upon a\\nfinding of child pornography that were images of real or actual children,” the\\nevidence introduced “was not sufficient to satisfy the elements of this offense.”\\n\\n The government counters with three points. First, it highlights that we\\nhave stated that images of child pornography are themselves sufficient to es-\\ntablish that actual children are depicted. In United States v. McNealy,\\n625 F.3d 858, 865−66 (5th Cir. 2010), a defendant asserted that the factfinder\\nwas incapable of ascertaining whether the charged images showed actual chil-\\ndren. A government witness testified that he believed that the children\\ndepicted in the images were “real minors,” id. at 865, but “conceded that he did\\nnot ‘have the ability to look at these images and tell th[e] jury if they’[d] been\\naltered or not,’” id.\\n\\n On appeal, the defendant maintained that the government had failed to\\nsatisfy its burden of showing that the images were real. Id. We rejected that\\ncontention, concluding that “[n]othing in the record, including the images\\nthemselves, suggests that they are anything other than images of actual pre-\\npubescent children and young teenage girls engaged in what [the defendant]\\nconcedes is lewd and lascivious conduct.” Id. at 866–67. We also highlighted\\n\\n 16\\n\\f Case: 17-11339 Document: 00515078178 Page: 17 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nthat “there is no evidence in the record before us that the state of technology is\\nsuch that images of this nature could have been generated using virtual chil-\\ndren.” Id. at 867. Consequently, “[w]hile it remains the Government’s burden\\nto show that actual children were depicted, the images themselves sufficed to\\nauthenticate them in this regard.” Id.\\n\\n The government also points to testimony from Agent Wilkerson estab-\\nlishing “that all of the images the jury had seen to that point, including the\\nCount Two images, and all other images at issue in the investigation of Pawlak,\\ndepicted real children.” Another government official, Special Agent Daniel\\nAlfin, answered “yes” when asked whether the Count Two images “‘appear[ed]\\nto’ be real children.”\\n\\n Ultimately, viewing the evidence in the light most favorable to the ver-\\ndict, the evidence was sufficient to sustain Pawlak’s conviction on Count Two.\\nHere, as was the case in McNealy, Pawlak points to no evidence in the record\\ndemonstrating that the Count Two images were anything other than what the\\ngovernment contended they were: child pornography involving actual pre-\\npubescent children. See id. at 866–67. Additionally, though it was “the [g]ov-\\nernment’s burden to show that actual children were depicted,” here, as in\\nMcNealy, “the images themselves sufficed to authenticate them in this regard.”\\nId. at 867. Consequently, this evidence, coupled with the testimony of Wilker-\\nson and Alfin, was sufficient to support the verdict on this count.\\n\\n C.\\n Count One charged Pawlak with receipt of child pornography in violation\\nof 18 U.S.C. § 2252A(a)(2)(A). Pawlak notes that the three images serving as\\nthe basis for Count One “were thumbnails found in the temporary internet\\nfiles, cache location on the Sigma94 computer.” Pawlak therefore contends\\nthat “[t]he problem with the sufficiency of evidence for these images . . . is that\\n\\n 17\\n\\f Case: 17-11339 Document: 00515078178 Page: 18 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nthe government has presented insufficient evidence to show where these items\\ncame from; when they were put on the computer; and who actually put the\\nitems on the computer.”\\n\\n Pawlak remarks that although he retained possession of the Sigma94\\ncomputer while employed by Sigma Cubed, “other employees had access to this\\ncomputer for extended periods.” Moreover, Pawlak acknowledges that he\\n“made some admissions in a telephone conversation with Special Agent Wil-\\nkerson,” but avers that “this conversation never established that he . . . viewed\\nimages on the Playpen website.” Consequently, he asserts that because “[t]he\\ngovernment did not present evidence that these specific images were know-\\ningly downloaded or received by Pawlak,” the evidence was insufficient to sus-\\ntain a conviction on this count.\\n\\n Conversely, the government maintains that Pawlak’s confession “to\\nbeing a long-time consumer of child pornography, . . . a PlayPen member, and\\n. . . particularly interested in images . . . involving prepubescent female chil-\\ndren,” coupled with the extensive forensic evidence tying him to the images,\\nwas sufficient to establish that he knowingly received the images. The\\ngovernment cites two precedents from this circuit in support of its position. In\\nUnited States v. Winkler, 639 F.3d 692, 693 (5th Cir. 2011), we affirmed a\\ndefendant’s conviction for knowing receipt of child pornography based on\\nimages found in his temporary Internet cache. We determined that “[t]he mere\\npresence of the files in the cache is certainly proof that the files were received,”\\nid. at 699 (citation omitted), and we noted that the “inquiry is highly fact\\nspecific and not tied to whether the files at issue were found in a cache\\ndirectory or, alternatively, in the user controlled portion of the hard drive,” id.\\nUltimately, we concluded that other evidence introduced by the government\\nestablished “a pattern of child pornography receipt and possession that could\\nalso have caused a rational jury to conclude that [the defendant] knowingly\\n 18\\n\\f Case: 17-11339 Document: 00515078178 Page: 19 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nreceived the files.” Id.\\n\\n Moreover, in United States v. Larman, 547 F. App’x 475 (5th Cir. 2013)\\n(per curiam), we affirmed a conviction for receipt of child pornography where\\nimages were found in the defendant’s temporary Internet cache and he\\nadmitted to federal agents that he had downloaded child pornography. Id.\\nat 479–81. The government stresses that—similar to the defendant in\\nLarman—“Pawlak confessed to a longstanding interest in and consumption of\\nchild pornography.” As part of his confession—which the government played\\nat trial—“Pawlak indicated he spent approximately half an hour per week\\nconsuming child pornography and admitted to accessing it on internet sites.”\\nHe “also admitted to having the username ‘notsoslow’ on the PlayPen website\\nand to having a computer named ‘Sigma94’ with a username of ‘d.pawlak’ while\\nworking at Sigma Cubed, tying him to the computer which downloaded the\\nimages.”\\n\\n The government contends that “[l]ike the defendant in Winkler, the evi-\\ndence showed Pawlak was a member of a website dedicated to child pornog-\\nraphy and that he consumed a great deal of other child pornography, evincing\\na pattern of child-pornography receipt.” Moreover, “like the defendant in Lar-\\nman, Pawlak confessed to obtaining child pornography over the internet.”\\n\\n Ultimately, the evidence was more than sufficient to sustain the con-\\nviction on Count One. Images of child pornography were found on Pawlak’s\\ncomputer in his temporary Internet cache. Pawlak admitted, in a recorded\\nconversation, to be being a long-time consumer of child pornography, and he\\nwas a member of PlayPen, a website dedicated to child pornography. Accord-\\ningly, viewed in the light most favorable to the verdict, this evidence sufficed\\nto establish Pawlak’s knowing receipt of child pornography.\\n\\n\\n\\n 19\\n\\f Case: 17-11339 Document: 00515078178 Page: 20 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\n V.\\n Pawlak maintains that the district court clearly erred in applying the\\nobstruction enhancement. Because Pawlak specifically objected, we review the\\n“district court’s interpretation or application of the Sentencing Guidelines” de\\nnovo. United States v. Adam, 296 F.3d 327, 334 (5th Cir. 2002). We review the\\ncourt’s factual findings, including a finding of obstruction of justice, for clear\\nerror. Id. “Where a factual finding is plausible in light of the record as a whole,\\nit is not clearly erroneous. Unless left with the definite and firm conviction\\nthat a mistake has been committed, [we] will not deem the district court’s find-\\ning to be clearly erroneous.” Id. (internal quotation marks and citation\\nomitted).\\n\\n A.\\n Section 3C1.1 of the U.S. Sentencing Guidelines, a sentencing adjust-\\nment for obstructing or impeding the administration of justice, provides that\\n [i]f (1) the defendant willfully obstructed or impeded, or attempted\\n to obstruct or impede, the administration of justice with respect to\\n the investigation, prosecution, or sentencing of the instant offense\\n of conviction, and (2) the obstructive conduct related to (A) the\\n defendant’s offense of conviction and any relevant conduct; or (B)\\n a closely related offense, increase the offense level by 2 levels.\\nThe application notes to the obstruction enhancement emphasize that, inter\\nalia, “destroying or concealing . . . evidence that is material to an official inves-\\ntigation or judicial proceeding (e.g., shredding a document or destroying led-\\ngers upon learning that an official investigation has commenced or is about to\\ncommence), or attempting to do so” qualifies as “the type[] of conduct to which\\nthis adjustment applies.” U.S.S.G. § 3C1.1 cmt. n.4(D).\\n\\n B.\\n Pawlak avers that, for two reasons, the district court clearly erred in\\napplying the obstruction enhancement. First, as Pawlak reads it, application\\n\\n 20\\n\\f Case: 17-11339 Document: 00515078178 Page: 21 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nnote 4(D) supports his position that his conduct does not amount to obstruction\\nof justice because the attempt to erase his hard drive occurred contemporane-\\nously with his arrest. See id. (stating an exception, under some circumstances,\\nfor conduct that “occurred contemporaneously with arrest” and was not “a\\nmaterial hindrance” to the investigation). Second, Pawlak contends that the\\nmere act of searching for and downloading software designed to wipe a com-\\nputer hard drive, without deploying it, does not constitute obstruction of jus-\\ntice. Consequently, because “he did not actually deploy the program and his\\nconduct did not materially hinder the investigation and prosecution of the\\ncase,” the court clearly erred.\\n\\n In response, the government asserts that “[t]he district court did not\\nclearly err in enhancing Pawlak’s offense level for obstruction of justice be-\\ncause the evidence, including his confession, established that he downloaded a\\nprogram meant to erase a computer hard drive containing a cache of child\\npornography.” The government highlights that “after the FBI commenced its\\nsearch-warrant execution . . . Pawlak searched for a program meant to wipe\\nhis hard drive.” Pawlak later admitted to an FBI agent that he was unable to\\nexecute the program because he lacked an external drive necessary to utilize\\nit. After examining the Independence Oil computer, a forensic computer expert\\nconfirmed that the software had been downloaded and installed on the same\\nmorning that the FBI executed a search warrant at Pawlak’s residence. The\\ngovernment therefore contends that Pawlak fails “to show any error, much less\\nclear error, in the district court’s application of the obstruction enhancement\\nbased upon the concrete steps he took towards deleting material evidence from\\nhis computer after his conversation with” the FBI agent executing the search\\nwarrant.\\n\\n The court did not clearly err in applying the obstruction enhancement.\\nThe evidence demonstrates, and Pawlak readily admits, that he took affirma-\\n 21\\n\\f Case: 17-11339 Document: 00515078178 Page: 22 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\ntive steps to download a program aimed at permanently deleting the contents\\nof the Independence Oil computer hard drive, including more than eight hun-\\ndred images and four videos of child pornography. The successful deployment\\nof that program would have deleted material evidence from the hard drive,\\nthereby hindering the investigation. See U.S.S.G. § 3C1.1 cmt. n.4(D). That\\nPawlak was ultimately unsuccessful in deploying it is irrelevant: A defendant\\nalso qualifies for the enhancement when he merely attempts to obstruct jus-\\ntice. Id. § 3C1.1; see also id. § 3C1.1 cmt. n.4(D).\\n\\n Moreover, Pawlak’s attempt to obstruct justice was not contemporaneous\\nwith his arrest. Instead, he attempted to wipe his hard drive shortly after he\\nlearned that federal agents were searching his house. Cf. id. § 3C1.1 cmt.\\nn.4(D). Consequently, the district court did not clearly err in applying the two-\\nlevel obstruction enhancement.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 22\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426071/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"WIENER"},"judge3":{"kind":"string","value":"ELROD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648818/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Daryl Glenn PAWLAK, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-11339 Document: 00515078178 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 17-11339 FILED\n August 15, 2019\n Lyle W. Cayce\n Clerk\n\nUNITED STATES OF AMERICA,\n\n Plaintiff–Appellee,\n\nversus\n\nDARYL GLENN PAWLAK,\n\n Defendant–Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\n\n\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Daryl Pawlak was convicted of receipt of child pornography and access\nwith intent to view child pornography involving a prepubescent minor. Pawlak\nasserts that the district court erred in denying his motions to dismiss the\nindictment and to suppress evidence, that the evidence was insufficient to sus-\ntain his convictions on either count, and that the court clearly erred in applying\n\f Case: 17-11339 Document: 00515078178 Page: 2 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\na two-level sentencing enhancement for obstruction of justice. Finding no\nerror, we affirm.\n\n I.\n A.\n In December 2014, federal law enforcement officials learned that a U.S.-\nbased Internet protocol (“IP”) address was hosting a website called “PlayPen,”\nwhich contained a significant amount of child pornography. United States v.\nGanzer, 922 F.3d 579, 581 (5th Cir. 2019), petition for cert. filed (July 23, 2019)\n(No. 19-5339). The website operated on an anonymity network and was\naccessible using publicly available software known as The Onion Router\n(“TOR”). Id.\n\n Unlike the traditional Internet, TOR software anonymizes a user’s\nactual IP address (which can be tied to a physical location) by routing the user’s\nconnection through a series of randomly selected computers on the network.\nId. That feature generally makes it impossible for law enforcement officials to\nidentify the administrators and users of websites containing child pornogra-\nphy, such as PlayPen, without employing other investigative techniques. Id.\n\n In January 2015, the FBI executed a search warrant and obtained a copy\nof the server hosting the PlayPen website, which it transferred to a\ngovernment-controlled facility in Virginia. Id. After obtaining a second war-\nrant from a magistrate judge in the Eastern District of Virginia, id., the FBI\nbegan a thirteen-day sting operation aimed at unmasking the identities of\nPlayPen users. 1\n\n\n\n\n 1 The government notes that although it “did operate the PlayPen site during this\nbrief period of time, it took ‘every possible effort to mitigate and prevent any additional phys-\nical abuse to children.’” Such efforts included “remov[ing] a portion of the website that\nencouraged members to produce and post new child pornography.”\n 2\n\f Case: 17-11339 Document: 00515078178 Page: 3 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\n The operation centered on the use of specialized malware called the\nNetwork Investigative Technique (“NIT”). Id. “The NIT was a form of malware\nthat augmented the content sent by Playpen to the computers of Playpen users\nwith directions instructing those computers to send identifying information to\na computer controlled by the government,” id., including “the computer’s IP\naddress and when the NIT determined [it]; a unique identifier for the computer\ngenerated by the NIT; the type of operating system used by the computer and\nthe operating system’s active username . . . ; the computer’s host name; and\nthe computer’s media access control,” id. at 581–82. The government further\nexplains that\n [t]he NIT would not deploy onto a PlayPen user’s computer until\n that individual logged into the website (which required them to\n have the TOR browser, know the 16-character website address,[ 2]\n and enter their login information for PlayPen), accessed a certain\n section in the site, and then actually requested content by clicking\n on a post in one of the more egregious sections.\n\n B.\n Using the NIT, federal agents linked PlayPen user “notsoslow”—later\ndetermined to be Daryl Pawlak—with an IP address associated with a resi-\ndence in Johnson County, Texas. The user had been logged into PlayPen for\nmore than fourteen hours before the NIT deployed on his computer in March\n2015, and he had spent an additional hour-and-a-half on PlayPen during the\nFBI’s operation of the website. The NIT also returned Pawlak’s computer user-\nname (“d.pawlak”), the name of the computer (“Sigma94”), and the computer’s\nMAC address.\n\n On October 1, 2015, after obtaining a search warrant for Pawlak’s\nresidence, FBI agents interviewed Pawlak’s wife. Using the wife’s cell phone,\n\n\n\n 2 The website address was comprised of “a randomly generated stream of [sixteen]\ncharacters ending in ‘.onion.’”\n 3\n\f Case: 17-11339 Document: 00515078178 Page: 4 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nAgent Marya Wilkerson called Pawlak and recorded the conversation. On the\ncall, Pawlak admitted, inter alia, that he had downloaded and viewed child\npornography using laptops from two different employers, had an email address\nutilizing the term “notsoslow,” had previously used a work computer with the\nname of “Sigma94,” and believed his username on that computer was\n“d.pawlak.” Pawlak also acknowledged that the computer (the “Sigma94 com-\nputer”) had been in his possession from October 2014 until May 2015, when he\nreturned it to his former employer, Sigma Cubed following his termination.\n\n In the recorded conversation, Pawlak stated that he had initially viewed\nchild pornography approximately three or four years earlier while working for\na previous employer. He admitted that he preferred child pornography involv-\ning prepubescent females approximately seven to eleven years old, that he\noften accessed such pornography on a website called “Girls Hub,” and that he\nhad last viewed child pornography about one week before.\n\n Later that day, Pawlak and Agent Wilkerson engaged in a second conver-\nsation that was not recorded. Pawlak admitted that he had attempted to delete\nthe contents of the hard drive on his current work computer (the “Indepen-\ndence Oil computer”) but was unable to do so.\n\n The FBI later acquired the Sigma94 computer from Sigma Cubed. Paw-\nlak was the first and only employee to use the computer, which had remained\nin a sealed box in Sigma Cubed’s offices after he returned it in May 2015.\nFollowing a forensic examination, law enforcement officials discovered several\nimages of child pornography in the temporary Internet cache of the Sigma94\ncomputer. The presence of the images in the cache demonstrated that the files\ncame from the Internet, as well as that they were received and stored on the\ncomputer. Federal agents also found evidence of seven other images of child\npornography on the computer.\n\n 4\n\f Case: 17-11339 Document: 00515078178 Page: 5 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\n In addition, federal agents captured information from when Pawlak\naccessed the PlayPen website both before and during the thirteen days it was\noperated by the government. Evidence showed that Pawlak clicked on several\nposts containing child pornography involving prepubescent female children.\n\n In October 2015, the FBI obtained access to the Independence Oil com-\nputer, on which investigators discovered approximately eight hundred images\nand four videos of child pornography. Pawlak was charged with receipt of child\npornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (Count One), and access\nwith intent to view child pornography involving a prepubescent minor, in vio-\nlation of 18 U.S.C. § 2252A(a)(5)(B) (Count Two).\n\n Pawlak moved to suppress the evidence obtained using the NIT, as well\nas all other evidence discovered as a result of its deployment. He claimed that\nthe warrant was void ab initio because it violated the scope of the issuing\nmagistrate judge’s authority under Federal Rule of Criminal Procedure 41(b).\nHe also moved to dismiss the indictment against him asserting that the gov-\nernment’s operation of the PlayPen website constituted outrageous conduct.\nThe district court denied both motions.\n\n Following a three-day trial, a jury convicted Pawlak on both counts. At\nsentencing, the presentence report recommended a two-level obstruction-of-\njustice enhancement relating to Pawlak’s attempt to delete the contents of the\nhard drive on his Independence Oil computer. The district court overruled\nPawlak’s objection to the enhancement. The court sentenced Pawlak to 210\nmonths’ imprisonment on each count, to be served concurrently, followed by a\nsupervised release term of fifteen years.\n\n Pawlak raises five issues on appeal. First, he asserts that the district\ncourt erred in denying his motion to dismiss the indictment based on out-\nrageous government conduct. Second, Pawlak avers that the court erred in\n\n 5\n\f Case: 17-11339 Document: 00515078178 Page: 6 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\ndenying his motion to suppress. Third, he contends that the evidence was in-\nsufficient to sustain his conviction for access with intent to view child pornog-\nraphy involving a prepubescent minor (Count Two). Fourth, Pawlak maintains\nthat the evidence was insufficient to support a conviction for receipt of child\npornography (Count One). Fifth, Pawlak claims that the district court clearly\nerred by applying the U.S.S.G. § 3C1.1 obstruction-of-justice enhancement.\n\n II.\n Pawlak avers that the district court erred in denying his motion to dis-\nmiss. “[W]e review de novo whether outrageous conduct requires dismissal of\nan indictment.” United States v. Sandlin, 589 F.3d 749, 758 (5th Cir. 2009).\n\n A.\n “The due process clause protects defendants against outrageous conduct\nby law enforcement agents.” United States v. Arteaga, 807 F.2d 424, 426 (5th\nCir. 1986). However, “[g]overnment misconduct does not mandate dismissal of\nan indictment unless it is so outrageous that it violates the principle of funda-\nmental fairness under the due process clause of the Fifth Amendment.” Sand-\nlin, 589 F.3d at 758–59 (citation omitted). Consequently, “the outrageous-\nconduct defense requires not only government overinvolvement in the charged\ncrime but a passive role by the defendant as well. A defendant who actively\nparticipates in the crime may not avail himself of the defense.” Arteaga,\n807 F.2d at 427.\n\n We evaluate the government’s conduct “in light of the undercover activ-\nity necessary to the enforcement of the criminal laws.” United States v. Fortna,\n796 F.2d 724, 735 (5th Cir. 1986) (citation omitted). The outrageous-conduct\nstandard is “extremely demanding,” Sandlin, 589 F.3d at 758, and “a due pro-\ncess violation will be found only in the rarest and most outrageous circum-\nstances,” Arteaga, 807 F.2d at 426 (citation omitted).\n\n 6\n\f Case: 17-11339 Document: 00515078178 Page: 7 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\n B.\n Pawlak asserts that, for three reasons, the district court erred in denying\nthe motion to dismiss. First, he contends that he was a mere passive parti-\ncipant in the enterprise because “there is no evidence that [he] posted to any\nforums, communicated with others on the [PlayPen] site, shared information,\nor in any way produced or uploaded any materials.” In doing so, Pawlak\nattempts to distinguish United States v. Venson, 82 F. App’x 330, 332−33 (5th\nCir. 2003) (per curiam), in which we rejected an outrageous-conduct defense in\na case involving child pornography.\n\n Second, Pawlak maintains that, by operating the PlayPen website, the\ngovernment aided in the public distribution of child pornography. Therefore,\nin addition to offending standards of fairness and decency, the government\nviolated federal law.\n\n Third, Pawlak states that the government’s actions ignored its internal\npolicies concerning the investigation of Internet crimes because “the FBI took\nno measures whatsoever to control the replication and distribution of pictures\nand videos from its undercover website.” He also asserts that the government’s\nactions in this case “resulted in the continued victimization of countless\ninnocent children.” Consequently, Pawlak contends that because he was a\nmere passive participant, and the government’s overinvolved conduct was out-\nrageous, the court erred in denying the motion to dismiss.\n\n In response, the government maintains that “[t]he district court correctly\ndenied Pawlak’s motion to dismiss based on alleged outrageous government\nconduct given his willing and active participation in the offense.” It offers two\narguments in support of that position.\n\n First, the government emphasizes that a defendant who actively par-\ntakes in a crime cannot avail himself of the outrageous-conduct defense.\n\n 7\n\f Case: 17-11339 Document: 00515078178 Page: 8 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nConsequently, because Pawlak was “an active, willing, and predisposed child-\npornography consumer,” he is not entitled to assert that defense. The govern-\nment points to several Fifth Circuit precedents where, despite an active role\nplayed by the government, we rejected the assertion of the outrageous-conduct\ndefense because of the defendant’s willing participation. 3\n\n Pawlak actively viewed child pornography for several years before the\nFBI’s investigation. Before the government’s operation of the PlayPen website,\nPawlak spent nearly fourteen hours, over a six-month period, logged into the\nsite. Moreover, he continued to seek out such material even after the FBI’s\nPlayPen operation ended. Therefore, the government maintains, the\noutrageous-conduct defense is not available.\n\n Second, the government emphasizes that we have never invalidated a\nconviction based on the assertion of that defense. It also notes that we seem-\ningly defined the outer limits of permissible government conduct in United\nStates v. Tobias, 662 F.2d 381 (5th Cir. Unit B Nov. 1981).\n\n In Tobias, the DEA established a fake chemical-supply company and\n“placed an advertisement offering over-the-counter sales of chemicals and lab-\noratory equipment.” Id. at 383. The defendant in that case, Thomas Tobias,\nplaced an order for various chemicals to manufacture cocaine. Id. Tobias later\ntried to cancel the order by telephoning an undercover DEA agent after he\ndetermined that cocaine would be too difficult to manufacture. Id. Pretending\nto be sympathetic, the agent suggested that Tobias manufacture phencyclidine\n(“PCP”). Id. at 383–84. Tobias then asked the agent to send him the chemicals\nnecessary to make PCP. Id. at 384. After receiving the chemicals and formula\n\n\n\n 3See United States v. Ivey, 949 F.2d 759, 769 (5th Cir. 1991); United States v. Evans,\n941 F.2d 267, 270–71 (5th Cir. 1991) (per curiam); United States v. Yater, 756 F.2d 1058,\n1066 (5th Cir. 1985).\n 8\n\f Case: 17-11339 Document: 00515078178 Page: 9 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nfor PCP, Tobias made more than a dozen calls to the fictitious company for\nassistance with manufacturing. Id. The DEA eventually obtained a warrant\nand found liquid PCP at Tobias’s residence. Id.\n\n We rejected Tobias’s assertion of the outrageous-conduct defense, finding\nthat he “was a predisposed active participant, motivated solely by a desire to\nmake money.” Id. at 387. We stressed “that government infiltration of crim-\ninal activity is a recognized and permissible means of investigation.” Id. at 386\n(internal quotation marks and citation omitted). Consequently, no due process\nviolation occurred. See id. at 387. Nonetheless, we cautioned that the “case\ndoes set the outer limits to which the government may go in the quest to ferret\nout and prosecute crimes in this circuit.” Id.\n\n Against this backdrop, the government maintains that the FBI’s brief\nsting operation involving the PlayPen website falls well short of the boundaries\nestablished in Tobias. It notes that “[t]he FBI . . . did not create PlayPen,\nand . . . it did not alter the site’s functionality, add additional child pornog-\nraphy, or actively solicit new users. Rather, the government simply main-\ntained the preexisting structure that Playpen website visitors allegedly used\nto distribute and receive child pornography among themselves.” Accordingly,\nthe government contends it was significantly less active than in Tobias because\nit “only took over an existing site and did not solicit new members.” It therefore\nurges us to affirm the denial of Pawlak’s motion to dismiss. 4\n\n Pawlak fails to establish either prong associated with the outrageous-\nconduct defense. Concerning the requirement that the defendant play a pas-\nsive role, the evidence demonstrates that Pawlak was an active consumer of\nchild pornography both before and after the FBI’s sting operation. Moreover,\n\n\n 4The government stresses that every district court to consider the outrageous-conduct\ndefense in the context of the FBI’s operation of the PlayPen website has rejected it.\n 9\n\f Case: 17-11339 Document: 00515078178 Page: 10 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nto access the PlayPen website, a user was required to obtain specialized\nsoftware, enter a specific sixteen-character website address, and log in using a\nunique username and password. Because Pawlak was an active participant in\nthe crime, he is not entitled to assert the outrageous-conduct defense on that\nground alone. See Arteaga, 807 F.2d at 427.\n\n Furthermore, the government’s conduct was not outrageous and did not\nviolate fundamental fairness. Viewing the sting operation “in light of the\nundercover activity necessary to the enforcement of the criminal laws,” Fortna,\n796 F.2d at 735 (citation omitted), the government’s conduct does not run afoul\nof the Fifth Amendment. Here, the FBI received judicial approval to operate\nthe PlayPen site, and it did so for only thirteen days. During that time, the\nFBI sought to mitigate the further exploitation of children by removing the\nportion of the site that encouraged members to produce and upload new images\nof child pornography.\n\n Ultimately, the sting operation successfully targeted a hidden website\nwhere thousands of users were viewing a significant amount of child pornog-\nraphy in a nearly untraceable manner. The operation also rescued hundreds\nof children, including dozens in the United States, from sexual abusers. There-\nfore, the district court did not err in denying the motion to dismiss.\n\n III.\n Pawlak next claims that the district court erred in denying his motion to\nsuppress. “We review the denial of a motion to suppress in the light most\nfavorable to the prevailing party.” United States v. Hernandez, 670 F.3d 616,\n620 (5th Cir. 2012). “The district court’s factual findings are reviewed for clear\nerror, and its legal conclusions are reviewed de novo.” Id. “A finding of fact is\nclearly erroneous if we are left with a definite and firm conviction that a mis-\ntake has been committed.” Id. (internal quotation marks and citation omitted).\n\n 10\n\f Case: 17-11339 Document: 00515078178 Page: 11 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\n“We uphold a district court’s denial of a suppression motion if there is any rea-\nsonable view of the evidence to support it.” United States v. Contreras,\n905 F.3d 853, 857 (5th Cir. 2018) (internal quotation marks and citation\nomitted).\n\n A.\n “The fact that a Fourth Amendment violation occurred—i.e., that a\nsearch or arrest was unreasonable—does not necessarily mean that the exclu-\nsionary rule applies.” Herring v. United States, 555 U.S. 135, 140 (2009). The\nSupreme Court has “repeatedly rejected the argument that exclusion is a\nnecessary consequence of a Fourth Amendment violation.” Id. at 141. Accord-\ningly, “[w]hen police act under a warrant that is invalid for lack of probable\ncause,” id. at 142, “evidence obtained in objectively reasonable reliance on a\nsubsequently invalidated search warrant typically should not be excluded.”\nContreras, 905 F.3d at 857 (internal quotation marks and citation omitted).\nMoreover, “a warrant issued by a magistrate normally suffices to establish that\na law enforcement officer has acted in good faith in conducting the search.”\nUnited States v. Leon, 468 U.S. 897, 922 (1984) (internal quotation marks and\ncitation omitted).\n\n Nonetheless, there are four circumstances in which an “officer’s reliance\non the magistrate’s probable-cause determination and on the technical suffi-\nciency of the warrant he issues” is not objectively reasonable. United States v.\nCherna, 184 F.3d 403, 407 (5th Cir. 1999) (citation omitted). First, “if the\nmagistrate or judge . . . was misled by information in an affidavit that the\naffiant knew was false or would have known was false except for his reckless\ndisregard of the truth.” Leon, 468 U.S. at 923. Second, if the “magistrate\nwholly abandoned his [neutral and detached] judicial role.” Id. Third, if the\n“officer . . . rel[ied] on a warrant [that was] based on an affidavit so lacking in\n\n 11\n\f Case: 17-11339 Document: 00515078178 Page: 12 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nindicia of probable cause as to render official belief in its existence entirely\nunreasonable.” Id. (internal quotation marks and citation omitted). And\nfourth, if the warrant was “so facially deficient—i.e., in failing to particularize\nthe place to be searched or the things to be seized—that the executing officers\ncannot reasonably presume it to be valid.” Id.\n\n “We employ a two-step process for reviewing a district court’s denial of a\nmotion to suppress when a search warrant is involved.” Cherna, 184 F.3d\nat 407. First, we analyze “whether the good-faith exception to the exclusionary\nrule” applies. Id. If the exception does apply, we affirm the denial of the\nmotion to suppress. Id. If it does not, we review whether “the magistrate had\na substantial basis for” determining that probable cause existed. Id. (citation\nomitted).\n\n B.\n Pawlak raises three arguments in support of his contention that the\ndistrict court erred in denying his motion to suppress. First, he asserts that\nthe court erred when it declined to require the testimony of Agent McFarlane,\nthe affiant for the NIT warrant application, concerning McFarlane’s subjective\nintent. Second, Pawlak maintains that the court erroneously concluded that\nthe subjective intent of government officials was irrelevant because other\ncourts later found the warrant to be valid.\n\n Third, Pawlak avers that the district court erred because the officers’\nreliance on the warrant was not objectively reasonable. Pawlak contends that\nIn re Warrant, 958 F. Supp. 2d 753 (S.D. Tex. 2013), “put the government on\nnotice that using a warrant issued by a Magistrate Judge in one district to\nexecute malware searches in another is not legal.” Consequently, because the\ngovernment “was fully aware at least two years before it sought the NIT\nWarrant . . . that [Federal Rule of Criminal Procedure] 41 did not permit\n\n 12\n\f Case: 17-11339 Document: 00515078178 Page: 13 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nmulti-district computer hacking,” its agents’ reliance on the warrant was not\nobjectively reasonable.\n\n The government responds that Pawlak’s focus on “the subjective intent\nof the officers who secured the NIT Warrant” is misplaced. It asserts that the\n“good-faith inquiry is confined to the objectively ascertainable question wheth-\ner a reasonably well trained officer would have known that the search was\nillegal in light of all of the circumstances” (quoting Herring, 555 U.S. at 145).\nThe government also avers that we may “not attempt an expedition into the\nminds of police officers to determine their subjective belief regarding the\nvalidity of the warrant” (quoting United States v. Payne, 341 F.3d 393, 400 (5th\nCir. 2003)). Consequently, because “Pawlak does not point to any of the Leon\nfactors that would suggest the officers failed to act in good faith,” the govern-\nment posits that his “argument should fail.”\n\n Moreover, although the district court found that the magistrate judge\nwho initially issued the NIT warrant exceeded the scope of her authority, it\nalso highlighted that several other district courts had reached the opposite con-\nclusion. Therefore, because the matter represented a close legal question, the\ngovernment contends that it “did not act improperly in seeking th[e] warrant.”\nThe government also stresses that because the officers deploying the NIT had\nno reason to know that the magistrate judge had erred, their reliance on the\nwarrant was objectively reasonable.\n\n Lastly, the government carefully distinguishes this case from In re War-\nrant. It emphasizes that “the information sought to be seized in In re Warrant\nwas considerably more extensive and intrusive than the identifying informa-\ntion sought in this case,” and it underscores that “a single decision from a mag-\nistrate judge in a dissimilar case did not give the government the unambiguous\nknowledge that such warrants were impermissible.” Moreover, “that authori-\n\n 13\n\f Case: 17-11339 Document: 00515078178 Page: 14 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nties believed clarification of Rule 41(b) would be helpful does not somehow\nprove that they knew the NIT Warrant could not validly issue under the cir-\ncumstances of this case.”\n\n Our recent decision in Ganzer effectively compels the conclusion that the\ndistrict court did not err in denying Pawlak’s motion to suppress. In that case,\nwe found that the good-faith exception applied to evidence seized because of\nthe NIT warrant, even assuming that the magistrate judge in the Eastern Dis-\ntrict of Virginia exceeded the scope of her authority. Ganzer, 922 F.3d at 587–\n90. Moreover, we declined to “construe the government’s efforts to have\nRule 41(b) amended to specifically allow for warrants like the NIT warrant as\nan admission that such warrants were not previously allowed, but rather as\nan attempt to clarify an existing law’s application to new circumstances.” Id.\nat 589.\n\n This case presents factual issues similar to those in Ganzer. Conse-\nquently, because here, as there, “law enforcement officials involved in the issu-\nance and execution of the NIT warrant acted with an objectively reasonable\ngood-faith belief that their conduct was lawful,” id. at 590 (internal quotation\nmarks, alteration, and citation omitted), the district court did not err in deny-\ning Pawlak’s motion. Such a “conclusion is consistent with the holdings of each\nof our sister circuits to have considered challenges to the NIT warrant.” Id. 5\n\n IV.\n Pawlak contends that the evidence was insufficient on both counts. We\n\n\n\n See United States v. Moorehead, 912 F.3d 963, 970–71 (6th Cir. 2019); United States\n 5\n\nv. Kienast, 907 F.3d 522, 528–29 (7th Cir. 2018); United States v. Henderson, 906 F.3d 1109,\n1119–20 (9th Cir. 2018); United States v. Werdene, 883 F.3d 204, 217–18 (3d Cir. 2018);\nUnited States v. McLamb, 880 F.3d 685, 690–91 (4th Cir. 2018); United States v. Levin,\n874 F.3d 316, 322–24 (1st Cir. 2017); United States v. Horton, 863 F.3d 1041, 1051–52 (8th\nCir. 2017); United States v. Workman, 863 F.3d 1313, 1317–21 (10th Cir. 2017).\n 14\n\f Case: 17-11339 Document: 00515078178 Page: 15 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nreview de novo Pawlak’s sufficiency claims because he properly preserved the\nissues by moving for a judgment of acquittal during trial. United States v.\nMoreland, 665 F.3d 137, 148 (5th Cir. 2011). “In deciding whether the evidence\nwas sufficient, we review all evidence in the light most favorable to the verdict\nto determine whether a rational trier of fact could have found that the evidence\nestablished the essential elements of the offense beyond a reasonable doubt.”\nUnited States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007).\n\n A.\n Although the government has broad authority to proscribe child pornog-\nraphy, this authority is not unlimited. United States v. Williams, 553 U.S. 285,\n289 (2008); see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 251–58 (2002).\nIn Free Speech Coalition, the Court found that a federal statute banning “the\npossession and distribution of any visual depiction that is, or appears to be, of\na minor engaging in sexually explicit conduct, even if it contained only\nyouthful-looking adult actors or virtual images of children generated by a com-\nputer,” Williams, 553 U.S. at 289 (internal quotation marks and citation\nomitted), was “overbroad and unconstitutional,” Free Speech Coal., 535 U.S.\nat 258.\n\n The government notes that following Free Speech Coalition, defendants\nin this circuit have challenged their child-pornography convictions by contend-\ning “that the government failed to prove the children depicted in the pornog-\nraphy were real, as opposed to ‘virtual,’ children.” We have rejected such a\ndefense, concluding that “Free Speech Coalition did not establish a broad re-\nquirement that the Government must present expert testimony to establish\nthat the unlawful image depicts a real child.” United States v. Slanina,\n359 F.3d 356, 357 (5th Cir. 2004) (per curiam). “The district court, as the trier\nof fact . . . , was capable of reviewing the evidence to determine whether the\n\n 15\n\f Case: 17-11339 Document: 00515078178 Page: 16 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nGovernment met its burden to show that the images depicted real children.”\nId. Moreover, “[j]uries are still capable of distinguishing between real and\nvirtual images.” Id. (citation omitted).\n\n B.\n Count Two charged Pawlak with access with intent to view child por-\nnography involving a prepubescent minor in violation of 18 U.S.C.\n§ 2252A(a)(5)(B). Pawlak contends that “there was no evidence presented that\nthe representations of children in the images accessed . . . were actual, real\nchildren,” as opposed to “computer generated or morphed images.” Conse-\nquently, because “the court’s charge only allowed for the conviction upon a\nfinding of child pornography that were images of real or actual children,” the\nevidence introduced “was not sufficient to satisfy the elements of this offense.”\n\n The government counters with three points. First, it highlights that we\nhave stated that images of child pornography are themselves sufficient to es-\ntablish that actual children are depicted. In United States v. McNealy,\n625 F.3d 858, 865−66 (5th Cir. 2010), a defendant asserted that the factfinder\nwas incapable of ascertaining whether the charged images showed actual chil-\ndren. A government witness testified that he believed that the children\ndepicted in the images were “real minors,” id. at 865, but “conceded that he did\nnot ‘have the ability to look at these images and tell th[e] jury if they’[d] been\naltered or not,’” id.\n\n On appeal, the defendant maintained that the government had failed to\nsatisfy its burden of showing that the images were real. Id. We rejected that\ncontention, concluding that “[n]othing in the record, including the images\nthemselves, suggests that they are anything other than images of actual pre-\npubescent children and young teenage girls engaged in what [the defendant]\nconcedes is lewd and lascivious conduct.” Id. at 866–67. We also highlighted\n\n 16\n\f Case: 17-11339 Document: 00515078178 Page: 17 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nthat “there is no evidence in the record before us that the state of technology is\nsuch that images of this nature could have been generated using virtual chil-\ndren.” Id. at 867. Consequently, “[w]hile it remains the Government’s burden\nto show that actual children were depicted, the images themselves sufficed to\nauthenticate them in this regard.” Id.\n\n The government also points to testimony from Agent Wilkerson estab-\nlishing “that all of the images the jury had seen to that point, including the\nCount Two images, and all other images at issue in the investigation of Pawlak,\ndepicted real children.” Another government official, Special Agent Daniel\nAlfin, answered “yes” when asked whether the Count Two images “‘appear[ed]\nto’ be real children.”\n\n Ultimately, viewing the evidence in the light most favorable to the ver-\ndict, the evidence was sufficient to sustain Pawlak’s conviction on Count Two.\nHere, as was the case in McNealy, Pawlak points to no evidence in the record\ndemonstrating that the Count Two images were anything other than what the\ngovernment contended they were: child pornography involving actual pre-\npubescent children. See id. at 866–67. Additionally, though it was “the [g]ov-\nernment’s burden to show that actual children were depicted,” here, as in\nMcNealy, “the images themselves sufficed to authenticate them in this regard.”\nId. at 867. Consequently, this evidence, coupled with the testimony of Wilker-\nson and Alfin, was sufficient to support the verdict on this count.\n\n C.\n Count One charged Pawlak with receipt of child pornography in violation\nof 18 U.S.C. § 2252A(a)(2)(A). Pawlak notes that the three images serving as\nthe basis for Count One “were thumbnails found in the temporary internet\nfiles, cache location on the Sigma94 computer.” Pawlak therefore contends\nthat “[t]he problem with the sufficiency of evidence for these images . . . is that\n\n 17\n\f Case: 17-11339 Document: 00515078178 Page: 18 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nthe government has presented insufficient evidence to show where these items\ncame from; when they were put on the computer; and who actually put the\nitems on the computer.”\n\n Pawlak remarks that although he retained possession of the Sigma94\ncomputer while employed by Sigma Cubed, “other employees had access to this\ncomputer for extended periods.” Moreover, Pawlak acknowledges that he\n“made some admissions in a telephone conversation with Special Agent Wil-\nkerson,” but avers that “this conversation never established that he . . . viewed\nimages on the Playpen website.” Consequently, he asserts that because “[t]he\ngovernment did not present evidence that these specific images were know-\ningly downloaded or received by Pawlak,” the evidence was insufficient to sus-\ntain a conviction on this count.\n\n Conversely, the government maintains that Pawlak’s confession “to\nbeing a long-time consumer of child pornography, . . . a PlayPen member, and\n. . . particularly interested in images . . . involving prepubescent female chil-\ndren,” coupled with the extensive forensic evidence tying him to the images,\nwas sufficient to establish that he knowingly received the images. The\ngovernment cites two precedents from this circuit in support of its position. In\nUnited States v. Winkler, 639 F.3d 692, 693 (5th Cir. 2011), we affirmed a\ndefendant’s conviction for knowing receipt of child pornography based on\nimages found in his temporary Internet cache. We determined that “[t]he mere\npresence of the files in the cache is certainly proof that the files were received,”\nid. at 699 (citation omitted), and we noted that the “inquiry is highly fact\nspecific and not tied to whether the files at issue were found in a cache\ndirectory or, alternatively, in the user controlled portion of the hard drive,” id.\nUltimately, we concluded that other evidence introduced by the government\nestablished “a pattern of child pornography receipt and possession that could\nalso have caused a rational jury to conclude that [the defendant] knowingly\n 18\n\f Case: 17-11339 Document: 00515078178 Page: 19 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nreceived the files.” Id.\n\n Moreover, in United States v. Larman, 547 F. App’x 475 (5th Cir. 2013)\n(per curiam), we affirmed a conviction for receipt of child pornography where\nimages were found in the defendant’s temporary Internet cache and he\nadmitted to federal agents that he had downloaded child pornography. Id.\nat 479–81. The government stresses that—similar to the defendant in\nLarman—“Pawlak confessed to a longstanding interest in and consumption of\nchild pornography.” As part of his confession—which the government played\nat trial—“Pawlak indicated he spent approximately half an hour per week\nconsuming child pornography and admitted to accessing it on internet sites.”\nHe “also admitted to having the username ‘notsoslow’ on the PlayPen website\nand to having a computer named ‘Sigma94’ with a username of ‘d.pawlak’ while\nworking at Sigma Cubed, tying him to the computer which downloaded the\nimages.”\n\n The government contends that “[l]ike the defendant in Winkler, the evi-\ndence showed Pawlak was a member of a website dedicated to child pornog-\nraphy and that he consumed a great deal of other child pornography, evincing\na pattern of child-pornography receipt.” Moreover, “like the defendant in Lar-\nman, Pawlak confessed to obtaining child pornography over the internet.”\n\n Ultimately, the evidence was more than sufficient to sustain the con-\nviction on Count One. Images of child pornography were found on Pawlak’s\ncomputer in his temporary Internet cache. Pawlak admitted, in a recorded\nconversation, to be being a long-time consumer of child pornography, and he\nwas a member of PlayPen, a website dedicated to child pornography. Accord-\ningly, viewed in the light most favorable to the verdict, this evidence sufficed\nto establish Pawlak’s knowing receipt of child pornography.\n\n\n\n 19\n\f Case: 17-11339 Document: 00515078178 Page: 20 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\n V.\n Pawlak maintains that the district court clearly erred in applying the\nobstruction enhancement. Because Pawlak specifically objected, we review the\n“district court’s interpretation or application of the Sentencing Guidelines” de\nnovo. United States v. Adam, 296 F.3d 327, 334 (5th Cir. 2002). We review the\ncourt’s factual findings, including a finding of obstruction of justice, for clear\nerror. Id. “Where a factual finding is plausible in light of the record as a whole,\nit is not clearly erroneous. Unless left with the definite and firm conviction\nthat a mistake has been committed, [we] will not deem the district court’s find-\ning to be clearly erroneous.” Id. (internal quotation marks and citation\nomitted).\n\n A.\n Section 3C1.1 of the U.S. Sentencing Guidelines, a sentencing adjust-\nment for obstructing or impeding the administration of justice, provides that\n [i]f (1) the defendant willfully obstructed or impeded, or attempted\n to obstruct or impede, the administration of justice with respect to\n the investigation, prosecution, or sentencing of the instant offense\n of conviction, and (2) the obstructive conduct related to (A) the\n defendant’s offense of conviction and any relevant conduct; or (B)\n a closely related offense, increase the offense level by 2 levels.\nThe application notes to the obstruction enhancement emphasize that, inter\nalia, “destroying or concealing . . . evidence that is material to an official inves-\ntigation or judicial proceeding (e.g., shredding a document or destroying led-\ngers upon learning that an official investigation has commenced or is about to\ncommence), or attempting to do so” qualifies as “the type[] of conduct to which\nthis adjustment applies.” U.S.S.G. § 3C1.1 cmt. n.4(D).\n\n B.\n Pawlak avers that, for two reasons, the district court clearly erred in\napplying the obstruction enhancement. First, as Pawlak reads it, application\n\n 20\n\f Case: 17-11339 Document: 00515078178 Page: 21 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\nnote 4(D) supports his position that his conduct does not amount to obstruction\nof justice because the attempt to erase his hard drive occurred contemporane-\nously with his arrest. See id. (stating an exception, under some circumstances,\nfor conduct that “occurred contemporaneously with arrest” and was not “a\nmaterial hindrance” to the investigation). Second, Pawlak contends that the\nmere act of searching for and downloading software designed to wipe a com-\nputer hard drive, without deploying it, does not constitute obstruction of jus-\ntice. Consequently, because “he did not actually deploy the program and his\nconduct did not materially hinder the investigation and prosecution of the\ncase,” the court clearly erred.\n\n In response, the government asserts that “[t]he district court did not\nclearly err in enhancing Pawlak’s offense level for obstruction of justice be-\ncause the evidence, including his confession, established that he downloaded a\nprogram meant to erase a computer hard drive containing a cache of child\npornography.” The government highlights that “after the FBI commenced its\nsearch-warrant execution . . . Pawlak searched for a program meant to wipe\nhis hard drive.” Pawlak later admitted to an FBI agent that he was unable to\nexecute the program because he lacked an external drive necessary to utilize\nit. After examining the Independence Oil computer, a forensic computer expert\nconfirmed that the software had been downloaded and installed on the same\nmorning that the FBI executed a search warrant at Pawlak’s residence. The\ngovernment therefore contends that Pawlak fails “to show any error, much less\nclear error, in the district court’s application of the obstruction enhancement\nbased upon the concrete steps he took towards deleting material evidence from\nhis computer after his conversation with” the FBI agent executing the search\nwarrant.\n\n The court did not clearly err in applying the obstruction enhancement.\nThe evidence demonstrates, and Pawlak readily admits, that he took affirma-\n 21\n\f Case: 17-11339 Document: 00515078178 Page: 22 Date Filed: 08/15/2019\n\n\n No. 17-11339\n\ntive steps to download a program aimed at permanently deleting the contents\nof the Independence Oil computer hard drive, including more than eight hun-\ndred images and four videos of child pornography. The successful deployment\nof that program would have deleted material evidence from the hard drive,\nthereby hindering the investigation. See U.S.S.G. § 3C1.1 cmt. n.4(D). That\nPawlak was ultimately unsuccessful in deploying it is irrelevant: A defendant\nalso qualifies for the enhancement when he merely attempts to obstruct jus-\ntice. Id. § 3C1.1; see also id. § 3C1.1 cmt. n.4(D).\n\n Moreover, Pawlak’s attempt to obstruct justice was not contemporaneous\nwith his arrest. Instead, he attempted to wipe his hard drive shortly after he\nlearned that federal agents were searching his house. Cf. id. § 3C1.1 cmt.\nn.4(D). Consequently, the district court did not clearly err in applying the two-\nlevel obstruction enhancement.\n\n AFFIRMED.\n\n\n\n\n 22\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Daryl Glenn PAWLAK, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-11339 Document: 00515078178 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-11339 FILED\\n August 15, 2019\\n Lyle W. Cayce\\n Clerk\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff–Appellee,\\n\\nversus\\n\\nDARYL GLENN PAWLAK,\\n\\n Defendant–Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Daryl Pawlak was convicted of receipt of child pornography and access\\nwith intent to view child pornography involving a prepubescent minor. Pawlak\\nasserts that the district court erred in denying his motions to dismiss the\\nindictment and to suppress evidence, that the evidence was insufficient to sus-\\ntain his convictions on either count, and that the court clearly erred in applying\\n\\f Case: 17-11339 Document: 00515078178 Page: 2 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\na two-level sentencing enhancement for obstruction of justice. Finding no\\nerror, we affirm.\\n\\n I.\\n A.\\n In December 2014, federal law enforcement officials learned that a U.S.-\\nbased Internet protocol (“IP”) address was hosting a website called “PlayPen,”\\nwhich contained a significant amount of child pornography. United States v.\\nGanzer, 922 F.3d 579, 581 (5th Cir. 2019), petition for cert. filed (July 23, 2019)\\n(No. 19-5339). The website operated on an anonymity network and was\\naccessible using publicly available software known as The Onion Router\\n(“TOR”). Id.\\n\\n Unlike the traditional Internet, TOR software anonymizes a user’s\\nactual IP address (which can be tied to a physical location) by routing the user’s\\nconnection through a series of randomly selected computers on the network.\\nId. That feature generally makes it impossible for law enforcement officials to\\nidentify the administrators and users of websites containing child pornogra-\\nphy, such as PlayPen, without employing other investigative techniques. Id.\\n\\n In January 2015, the FBI executed a search warrant and obtained a copy\\nof the server hosting the PlayPen website, which it transferred to a\\ngovernment-controlled facility in Virginia. Id. After obtaining a second war-\\nrant from a magistrate judge in the Eastern District of Virginia, id., the FBI\\nbegan a thirteen-day sting operation aimed at unmasking the identities of\\nPlayPen users. 1\\n\\n\\n\\n\\n 1 The government notes that although it “did operate the PlayPen site during this\\nbrief period of time, it took ‘every possible effort to mitigate and prevent any additional phys-\\nical abuse to children.’” Such efforts included “remov[ing] a portion of the website that\\nencouraged members to produce and post new child pornography.”\\n 2\\n\\f Case: 17-11339 Document: 00515078178 Page: 3 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\n The operation centered on the use of specialized malware called the\\nNetwork Investigative Technique (“NIT”). Id. “The NIT was a form of malware\\nthat augmented the content sent by Playpen to the computers of Playpen users\\nwith directions instructing those computers to send identifying information to\\na computer controlled by the government,” id., including “the computer’s IP\\naddress and when the NIT determined [it]; a unique identifier for the computer\\ngenerated by the NIT; the type of operating system used by the computer and\\nthe operating system’s active username . . . ; the computer’s host name; and\\nthe computer’s media access control,” id. at 581–82. The government further\\nexplains that\\n [t]he NIT would not deploy onto a PlayPen user’s computer until\\n that individual logged into the website (which required them to\\n have the TOR browser, know the 16-character website address,[ 2]\\n and enter their login information for PlayPen), accessed a certain\\n section in the site, and then actually requested content by clicking\\n on a post in one of the more egregious sections.\\n\\n B.\\n Using the NIT, federal agents linked PlayPen user “notsoslow”—later\\ndetermined to be Daryl Pawlak—with an IP address associated with a resi-\\ndence in Johnson County, Texas. The user had been logged into PlayPen for\\nmore than fourteen hours before the NIT deployed on his computer in March\\n2015, and he had spent an additional hour-and-a-half on PlayPen during the\\nFBI’s operation of the website. The NIT also returned Pawlak’s computer user-\\nname (“d.pawlak”), the name of the computer (“Sigma94”), and the computer’s\\nMAC address.\\n\\n On October 1, 2015, after obtaining a search warrant for Pawlak’s\\nresidence, FBI agents interviewed Pawlak’s wife. Using the wife’s cell phone,\\n\\n\\n\\n 2 The website address was comprised of “a randomly generated stream of [sixteen]\\ncharacters ending in ‘.onion.’”\\n 3\\n\\f Case: 17-11339 Document: 00515078178 Page: 4 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nAgent Marya Wilkerson called Pawlak and recorded the conversation. On the\\ncall, Pawlak admitted, inter alia, that he had downloaded and viewed child\\npornography using laptops from two different employers, had an email address\\nutilizing the term “notsoslow,” had previously used a work computer with the\\nname of “Sigma94,” and believed his username on that computer was\\n“d.pawlak.” Pawlak also acknowledged that the computer (the “Sigma94 com-\\nputer”) had been in his possession from October 2014 until May 2015, when he\\nreturned it to his former employer, Sigma Cubed following his termination.\\n\\n In the recorded conversation, Pawlak stated that he had initially viewed\\nchild pornography approximately three or four years earlier while working for\\na previous employer. He admitted that he preferred child pornography involv-\\ning prepubescent females approximately seven to eleven years old, that he\\noften accessed such pornography on a website called “Girls Hub,” and that he\\nhad last viewed child pornography about one week before.\\n\\n Later that day, Pawlak and Agent Wilkerson engaged in a second conver-\\nsation that was not recorded. Pawlak admitted that he had attempted to delete\\nthe contents of the hard drive on his current work computer (the “Indepen-\\ndence Oil computer”) but was unable to do so.\\n\\n The FBI later acquired the Sigma94 computer from Sigma Cubed. Paw-\\nlak was the first and only employee to use the computer, which had remained\\nin a sealed box in Sigma Cubed’s offices after he returned it in May 2015.\\nFollowing a forensic examination, law enforcement officials discovered several\\nimages of child pornography in the temporary Internet cache of the Sigma94\\ncomputer. The presence of the images in the cache demonstrated that the files\\ncame from the Internet, as well as that they were received and stored on the\\ncomputer. Federal agents also found evidence of seven other images of child\\npornography on the computer.\\n\\n 4\\n\\f Case: 17-11339 Document: 00515078178 Page: 5 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\n In addition, federal agents captured information from when Pawlak\\naccessed the PlayPen website both before and during the thirteen days it was\\noperated by the government. Evidence showed that Pawlak clicked on several\\nposts containing child pornography involving prepubescent female children.\\n\\n In October 2015, the FBI obtained access to the Independence Oil com-\\nputer, on which investigators discovered approximately eight hundred images\\nand four videos of child pornography. Pawlak was charged with receipt of child\\npornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (Count One), and access\\nwith intent to view child pornography involving a prepubescent minor, in vio-\\nlation of 18 U.S.C. § 2252A(a)(5)(B) (Count Two).\\n\\n Pawlak moved to suppress the evidence obtained using the NIT, as well\\nas all other evidence discovered as a result of its deployment. He claimed that\\nthe warrant was void ab initio because it violated the scope of the issuing\\nmagistrate judge’s authority under Federal Rule of Criminal Procedure 41(b).\\nHe also moved to dismiss the indictment against him asserting that the gov-\\nernment’s operation of the PlayPen website constituted outrageous conduct.\\nThe district court denied both motions.\\n\\n Following a three-day trial, a jury convicted Pawlak on both counts. At\\nsentencing, the presentence report recommended a two-level obstruction-of-\\njustice enhancement relating to Pawlak’s attempt to delete the contents of the\\nhard drive on his Independence Oil computer. The district court overruled\\nPawlak’s objection to the enhancement. The court sentenced Pawlak to 210\\nmonths’ imprisonment on each count, to be served concurrently, followed by a\\nsupervised release term of fifteen years.\\n\\n Pawlak raises five issues on appeal. First, he asserts that the district\\ncourt erred in denying his motion to dismiss the indictment based on out-\\nrageous government conduct. Second, Pawlak avers that the court erred in\\n\\n 5\\n\\f Case: 17-11339 Document: 00515078178 Page: 6 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\ndenying his motion to suppress. Third, he contends that the evidence was in-\\nsufficient to sustain his conviction for access with intent to view child pornog-\\nraphy involving a prepubescent minor (Count Two). Fourth, Pawlak maintains\\nthat the evidence was insufficient to support a conviction for receipt of child\\npornography (Count One). Fifth, Pawlak claims that the district court clearly\\nerred by applying the U.S.S.G. § 3C1.1 obstruction-of-justice enhancement.\\n\\n II.\\n Pawlak avers that the district court erred in denying his motion to dis-\\nmiss. “[W]e review de novo whether outrageous conduct requires dismissal of\\nan indictment.” United States v. Sandlin, 589 F.3d 749, 758 (5th Cir. 2009).\\n\\n A.\\n “The due process clause protects defendants against outrageous conduct\\nby law enforcement agents.” United States v. Arteaga, 807 F.2d 424, 426 (5th\\nCir. 1986). However, “[g]overnment misconduct does not mandate dismissal of\\nan indictment unless it is so outrageous that it violates the principle of funda-\\nmental fairness under the due process clause of the Fifth Amendment.” Sand-\\nlin, 589 F.3d at 758–59 (citation omitted). Consequently, “the outrageous-\\nconduct defense requires not only government overinvolvement in the charged\\ncrime but a passive role by the defendant as well. A defendant who actively\\nparticipates in the crime may not avail himself of the defense.” Arteaga,\\n807 F.2d at 427.\\n\\n We evaluate the government’s conduct “in light of the undercover activ-\\nity necessary to the enforcement of the criminal laws.” United States v. Fortna,\\n796 F.2d 724, 735 (5th Cir. 1986) (citation omitted). The outrageous-conduct\\nstandard is “extremely demanding,” Sandlin, 589 F.3d at 758, and “a due pro-\\ncess violation will be found only in the rarest and most outrageous circum-\\nstances,” Arteaga, 807 F.2d at 426 (citation omitted).\\n\\n 6\\n\\f Case: 17-11339 Document: 00515078178 Page: 7 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\n B.\\n Pawlak asserts that, for three reasons, the district court erred in denying\\nthe motion to dismiss. First, he contends that he was a mere passive parti-\\ncipant in the enterprise because “there is no evidence that [he] posted to any\\nforums, communicated with others on the [PlayPen] site, shared information,\\nor in any way produced or uploaded any materials.” In doing so, Pawlak\\nattempts to distinguish United States v. Venson, 82 F. App’x 330, 332−33 (5th\\nCir. 2003) (per curiam), in which we rejected an outrageous-conduct defense in\\na case involving child pornography.\\n\\n Second, Pawlak maintains that, by operating the PlayPen website, the\\ngovernment aided in the public distribution of child pornography. Therefore,\\nin addition to offending standards of fairness and decency, the government\\nviolated federal law.\\n\\n Third, Pawlak states that the government’s actions ignored its internal\\npolicies concerning the investigation of Internet crimes because “the FBI took\\nno measures whatsoever to control the replication and distribution of pictures\\nand videos from its undercover website.” He also asserts that the government’s\\nactions in this case “resulted in the continued victimization of countless\\ninnocent children.” Consequently, Pawlak contends that because he was a\\nmere passive participant, and the government’s overinvolved conduct was out-\\nrageous, the court erred in denying the motion to dismiss.\\n\\n In response, the government maintains that “[t]he district court correctly\\ndenied Pawlak’s motion to dismiss based on alleged outrageous government\\nconduct given his willing and active participation in the offense.” It offers two\\narguments in support of that position.\\n\\n First, the government emphasizes that a defendant who actively par-\\ntakes in a crime cannot avail himself of the outrageous-conduct defense.\\n\\n 7\\n\\f Case: 17-11339 Document: 00515078178 Page: 8 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nConsequently, because Pawlak was “an active, willing, and predisposed child-\\npornography consumer,” he is not entitled to assert that defense. The govern-\\nment points to several Fifth Circuit precedents where, despite an active role\\nplayed by the government, we rejected the assertion of the outrageous-conduct\\ndefense because of the defendant’s willing participation. 3\\n\\n Pawlak actively viewed child pornography for several years before the\\nFBI’s investigation. Before the government’s operation of the PlayPen website,\\nPawlak spent nearly fourteen hours, over a six-month period, logged into the\\nsite. Moreover, he continued to seek out such material even after the FBI’s\\nPlayPen operation ended. Therefore, the government maintains, the\\noutrageous-conduct defense is not available.\\n\\n Second, the government emphasizes that we have never invalidated a\\nconviction based on the assertion of that defense. It also notes that we seem-\\ningly defined the outer limits of permissible government conduct in United\\nStates v. Tobias, 662 F.2d 381 (5th Cir. Unit B Nov. 1981).\\n\\n In Tobias, the DEA established a fake chemical-supply company and\\n“placed an advertisement offering over-the-counter sales of chemicals and lab-\\noratory equipment.” Id. at 383. The defendant in that case, Thomas Tobias,\\nplaced an order for various chemicals to manufacture cocaine. Id. Tobias later\\ntried to cancel the order by telephoning an undercover DEA agent after he\\ndetermined that cocaine would be too difficult to manufacture. Id. Pretending\\nto be sympathetic, the agent suggested that Tobias manufacture phencyclidine\\n(“PCP”). Id. at 383–84. Tobias then asked the agent to send him the chemicals\\nnecessary to make PCP. Id. at 384. After receiving the chemicals and formula\\n\\n\\n\\n 3See United States v. Ivey, 949 F.2d 759, 769 (5th Cir. 1991); United States v. Evans,\\n941 F.2d 267, 270–71 (5th Cir. 1991) (per curiam); United States v. Yater, 756 F.2d 1058,\\n1066 (5th Cir. 1985).\\n 8\\n\\f Case: 17-11339 Document: 00515078178 Page: 9 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nfor PCP, Tobias made more than a dozen calls to the fictitious company for\\nassistance with manufacturing. Id. The DEA eventually obtained a warrant\\nand found liquid PCP at Tobias’s residence. Id.\\n\\n We rejected Tobias’s assertion of the outrageous-conduct defense, finding\\nthat he “was a predisposed active participant, motivated solely by a desire to\\nmake money.” Id. at 387. We stressed “that government infiltration of crim-\\ninal activity is a recognized and permissible means of investigation.” Id. at 386\\n(internal quotation marks and citation omitted). Consequently, no due process\\nviolation occurred. See id. at 387. Nonetheless, we cautioned that the “case\\ndoes set the outer limits to which the government may go in the quest to ferret\\nout and prosecute crimes in this circuit.” Id.\\n\\n Against this backdrop, the government maintains that the FBI’s brief\\nsting operation involving the PlayPen website falls well short of the boundaries\\nestablished in Tobias. It notes that “[t]he FBI . . . did not create PlayPen,\\nand . . . it did not alter the site’s functionality, add additional child pornog-\\nraphy, or actively solicit new users. Rather, the government simply main-\\ntained the preexisting structure that Playpen website visitors allegedly used\\nto distribute and receive child pornography among themselves.” Accordingly,\\nthe government contends it was significantly less active than in Tobias because\\nit “only took over an existing site and did not solicit new members.” It therefore\\nurges us to affirm the denial of Pawlak’s motion to dismiss. 4\\n\\n Pawlak fails to establish either prong associated with the outrageous-\\nconduct defense. Concerning the requirement that the defendant play a pas-\\nsive role, the evidence demonstrates that Pawlak was an active consumer of\\nchild pornography both before and after the FBI’s sting operation. Moreover,\\n\\n\\n 4The government stresses that every district court to consider the outrageous-conduct\\ndefense in the context of the FBI’s operation of the PlayPen website has rejected it.\\n 9\\n\\f Case: 17-11339 Document: 00515078178 Page: 10 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nto access the PlayPen website, a user was required to obtain specialized\\nsoftware, enter a specific sixteen-character website address, and log in using a\\nunique username and password. Because Pawlak was an active participant in\\nthe crime, he is not entitled to assert the outrageous-conduct defense on that\\nground alone. See Arteaga, 807 F.2d at 427.\\n\\n Furthermore, the government’s conduct was not outrageous and did not\\nviolate fundamental fairness. Viewing the sting operation “in light of the\\nundercover activity necessary to the enforcement of the criminal laws,” Fortna,\\n796 F.2d at 735 (citation omitted), the government’s conduct does not run afoul\\nof the Fifth Amendment. Here, the FBI received judicial approval to operate\\nthe PlayPen site, and it did so for only thirteen days. During that time, the\\nFBI sought to mitigate the further exploitation of children by removing the\\nportion of the site that encouraged members to produce and upload new images\\nof child pornography.\\n\\n Ultimately, the sting operation successfully targeted a hidden website\\nwhere thousands of users were viewing a significant amount of child pornog-\\nraphy in a nearly untraceable manner. The operation also rescued hundreds\\nof children, including dozens in the United States, from sexual abusers. There-\\nfore, the district court did not err in denying the motion to dismiss.\\n\\n III.\\n Pawlak next claims that the district court erred in denying his motion to\\nsuppress. “We review the denial of a motion to suppress in the light most\\nfavorable to the prevailing party.” United States v. Hernandez, 670 F.3d 616,\\n620 (5th Cir. 2012). “The district court’s factual findings are reviewed for clear\\nerror, and its legal conclusions are reviewed de novo.” Id. “A finding of fact is\\nclearly erroneous if we are left with a definite and firm conviction that a mis-\\ntake has been committed.” Id. (internal quotation marks and citation omitted).\\n\\n 10\\n\\f Case: 17-11339 Document: 00515078178 Page: 11 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\n“We uphold a district court’s denial of a suppression motion if there is any rea-\\nsonable view of the evidence to support it.” United States v. Contreras,\\n905 F.3d 853, 857 (5th Cir. 2018) (internal quotation marks and citation\\nomitted).\\n\\n A.\\n “The fact that a Fourth Amendment violation occurred—i.e., that a\\nsearch or arrest was unreasonable—does not necessarily mean that the exclu-\\nsionary rule applies.” Herring v. United States, 555 U.S. 135, 140 (2009). The\\nSupreme Court has “repeatedly rejected the argument that exclusion is a\\nnecessary consequence of a Fourth Amendment violation.” Id. at 141. Accord-\\ningly, “[w]hen police act under a warrant that is invalid for lack of probable\\ncause,” id. at 142, “evidence obtained in objectively reasonable reliance on a\\nsubsequently invalidated search warrant typically should not be excluded.”\\nContreras, 905 F.3d at 857 (internal quotation marks and citation omitted).\\nMoreover, “a warrant issued by a magistrate normally suffices to establish that\\na law enforcement officer has acted in good faith in conducting the search.”\\nUnited States v. Leon, 468 U.S. 897, 922 (1984) (internal quotation marks and\\ncitation omitted).\\n\\n Nonetheless, there are four circumstances in which an “officer’s reliance\\non the magistrate’s probable-cause determination and on the technical suffi-\\nciency of the warrant he issues” is not objectively reasonable. United States v.\\nCherna, 184 F.3d 403, 407 (5th Cir. 1999) (citation omitted). First, “if the\\nmagistrate or judge . . . was misled by information in an affidavit that the\\naffiant knew was false or would have known was false except for his reckless\\ndisregard of the truth.” Leon, 468 U.S. at 923. Second, if the “magistrate\\nwholly abandoned his [neutral and detached] judicial role.” Id. Third, if the\\n“officer . . . rel[ied] on a warrant [that was] based on an affidavit so lacking in\\n\\n 11\\n\\f Case: 17-11339 Document: 00515078178 Page: 12 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nindicia of probable cause as to render official belief in its existence entirely\\nunreasonable.” Id. (internal quotation marks and citation omitted). And\\nfourth, if the warrant was “so facially deficient—i.e., in failing to particularize\\nthe place to be searched or the things to be seized—that the executing officers\\ncannot reasonably presume it to be valid.” Id.\\n\\n “We employ a two-step process for reviewing a district court’s denial of a\\nmotion to suppress when a search warrant is involved.” Cherna, 184 F.3d\\nat 407. First, we analyze “whether the good-faith exception to the exclusionary\\nrule” applies. Id. If the exception does apply, we affirm the denial of the\\nmotion to suppress. Id. If it does not, we review whether “the magistrate had\\na substantial basis for” determining that probable cause existed. Id. (citation\\nomitted).\\n\\n B.\\n Pawlak raises three arguments in support of his contention that the\\ndistrict court erred in denying his motion to suppress. First, he asserts that\\nthe court erred when it declined to require the testimony of Agent McFarlane,\\nthe affiant for the NIT warrant application, concerning McFarlane’s subjective\\nintent. Second, Pawlak maintains that the court erroneously concluded that\\nthe subjective intent of government officials was irrelevant because other\\ncourts later found the warrant to be valid.\\n\\n Third, Pawlak avers that the district court erred because the officers’\\nreliance on the warrant was not objectively reasonable. Pawlak contends that\\nIn re Warrant, 958 F. Supp. 2d 753 (S.D. Tex. 2013), “put the government on\\nnotice that using a warrant issued by a Magistrate Judge in one district to\\nexecute malware searches in another is not legal.” Consequently, because the\\ngovernment “was fully aware at least two years before it sought the NIT\\nWarrant . . . that [Federal Rule of Criminal Procedure] 41 did not permit\\n\\n 12\\n\\f Case: 17-11339 Document: 00515078178 Page: 13 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nmulti-district computer hacking,” its agents’ reliance on the warrant was not\\nobjectively reasonable.\\n\\n The government responds that Pawlak’s focus on “the subjective intent\\nof the officers who secured the NIT Warrant” is misplaced. It asserts that the\\n“good-faith inquiry is confined to the objectively ascertainable question wheth-\\ner a reasonably well trained officer would have known that the search was\\nillegal in light of all of the circumstances” (quoting Herring, 555 U.S. at 145).\\nThe government also avers that we may “not attempt an expedition into the\\nminds of police officers to determine their subjective belief regarding the\\nvalidity of the warrant” (quoting United States v. Payne, 341 F.3d 393, 400 (5th\\nCir. 2003)). Consequently, because “Pawlak does not point to any of the Leon\\nfactors that would suggest the officers failed to act in good faith,” the govern-\\nment posits that his “argument should fail.”\\n\\n Moreover, although the district court found that the magistrate judge\\nwho initially issued the NIT warrant exceeded the scope of her authority, it\\nalso highlighted that several other district courts had reached the opposite con-\\nclusion. Therefore, because the matter represented a close legal question, the\\ngovernment contends that it “did not act improperly in seeking th[e] warrant.”\\nThe government also stresses that because the officers deploying the NIT had\\nno reason to know that the magistrate judge had erred, their reliance on the\\nwarrant was objectively reasonable.\\n\\n Lastly, the government carefully distinguishes this case from In re War-\\nrant. It emphasizes that “the information sought to be seized in In re Warrant\\nwas considerably more extensive and intrusive than the identifying informa-\\ntion sought in this case,” and it underscores that “a single decision from a mag-\\nistrate judge in a dissimilar case did not give the government the unambiguous\\nknowledge that such warrants were impermissible.” Moreover, “that authori-\\n\\n 13\\n\\f Case: 17-11339 Document: 00515078178 Page: 14 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nties believed clarification of Rule 41(b) would be helpful does not somehow\\nprove that they knew the NIT Warrant could not validly issue under the cir-\\ncumstances of this case.”\\n\\n Our recent decision in Ganzer effectively compels the conclusion that the\\ndistrict court did not err in denying Pawlak’s motion to suppress. In that case,\\nwe found that the good-faith exception applied to evidence seized because of\\nthe NIT warrant, even assuming that the magistrate judge in the Eastern Dis-\\ntrict of Virginia exceeded the scope of her authority. Ganzer, 922 F.3d at 587–\\n90. Moreover, we declined to “construe the government’s efforts to have\\nRule 41(b) amended to specifically allow for warrants like the NIT warrant as\\nan admission that such warrants were not previously allowed, but rather as\\nan attempt to clarify an existing law’s application to new circumstances.” Id.\\nat 589.\\n\\n This case presents factual issues similar to those in Ganzer. Conse-\\nquently, because here, as there, “law enforcement officials involved in the issu-\\nance and execution of the NIT warrant acted with an objectively reasonable\\ngood-faith belief that their conduct was lawful,” id. at 590 (internal quotation\\nmarks, alteration, and citation omitted), the district court did not err in deny-\\ning Pawlak’s motion. Such a “conclusion is consistent with the holdings of each\\nof our sister circuits to have considered challenges to the NIT warrant.” Id. 5\\n\\n IV.\\n Pawlak contends that the evidence was insufficient on both counts. We\\n\\n\\n\\n See United States v. Moorehead, 912 F.3d 963, 970–71 (6th Cir. 2019); United States\\n 5\\n\\nv. Kienast, 907 F.3d 522, 528–29 (7th Cir. 2018); United States v. Henderson, 906 F.3d 1109,\\n1119–20 (9th Cir. 2018); United States v. Werdene, 883 F.3d 204, 217–18 (3d Cir. 2018);\\nUnited States v. McLamb, 880 F.3d 685, 690–91 (4th Cir. 2018); United States v. Levin,\\n874 F.3d 316, 322–24 (1st Cir. 2017); United States v. Horton, 863 F.3d 1041, 1051–52 (8th\\nCir. 2017); United States v. Workman, 863 F.3d 1313, 1317–21 (10th Cir. 2017).\\n 14\\n\\f Case: 17-11339 Document: 00515078178 Page: 15 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nreview de novo Pawlak’s sufficiency claims because he properly preserved the\\nissues by moving for a judgment of acquittal during trial. United States v.\\nMoreland, 665 F.3d 137, 148 (5th Cir. 2011). “In deciding whether the evidence\\nwas sufficient, we review all evidence in the light most favorable to the verdict\\nto determine whether a rational trier of fact could have found that the evidence\\nestablished the essential elements of the offense beyond a reasonable doubt.”\\nUnited States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007).\\n\\n A.\\n Although the government has broad authority to proscribe child pornog-\\nraphy, this authority is not unlimited. United States v. Williams, 553 U.S. 285,\\n289 (2008); see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 251–58 (2002).\\nIn Free Speech Coalition, the Court found that a federal statute banning “the\\npossession and distribution of any visual depiction that is, or appears to be, of\\na minor engaging in sexually explicit conduct, even if it contained only\\nyouthful-looking adult actors or virtual images of children generated by a com-\\nputer,” Williams, 553 U.S. at 289 (internal quotation marks and citation\\nomitted), was “overbroad and unconstitutional,” Free Speech Coal., 535 U.S.\\nat 258.\\n\\n The government notes that following Free Speech Coalition, defendants\\nin this circuit have challenged their child-pornography convictions by contend-\\ning “that the government failed to prove the children depicted in the pornog-\\nraphy were real, as opposed to ‘virtual,’ children.” We have rejected such a\\ndefense, concluding that “Free Speech Coalition did not establish a broad re-\\nquirement that the Government must present expert testimony to establish\\nthat the unlawful image depicts a real child.” United States v. Slanina,\\n359 F.3d 356, 357 (5th Cir. 2004) (per curiam). “The district court, as the trier\\nof fact . . . , was capable of reviewing the evidence to determine whether the\\n\\n 15\\n\\f Case: 17-11339 Document: 00515078178 Page: 16 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nGovernment met its burden to show that the images depicted real children.”\\nId. Moreover, “[j]uries are still capable of distinguishing between real and\\nvirtual images.” Id. (citation omitted).\\n\\n B.\\n Count Two charged Pawlak with access with intent to view child por-\\nnography involving a prepubescent minor in violation of 18 U.S.C.\\n§ 2252A(a)(5)(B). Pawlak contends that “there was no evidence presented that\\nthe representations of children in the images accessed . . . were actual, real\\nchildren,” as opposed to “computer generated or morphed images.” Conse-\\nquently, because “the court’s charge only allowed for the conviction upon a\\nfinding of child pornography that were images of real or actual children,” the\\nevidence introduced “was not sufficient to satisfy the elements of this offense.”\\n\\n The government counters with three points. First, it highlights that we\\nhave stated that images of child pornography are themselves sufficient to es-\\ntablish that actual children are depicted. In United States v. McNealy,\\n625 F.3d 858, 865−66 (5th Cir. 2010), a defendant asserted that the factfinder\\nwas incapable of ascertaining whether the charged images showed actual chil-\\ndren. A government witness testified that he believed that the children\\ndepicted in the images were “real minors,” id. at 865, but “conceded that he did\\nnot ‘have the ability to look at these images and tell th[e] jury if they’[d] been\\naltered or not,’” id.\\n\\n On appeal, the defendant maintained that the government had failed to\\nsatisfy its burden of showing that the images were real. Id. We rejected that\\ncontention, concluding that “[n]othing in the record, including the images\\nthemselves, suggests that they are anything other than images of actual pre-\\npubescent children and young teenage girls engaged in what [the defendant]\\nconcedes is lewd and lascivious conduct.” Id. at 866–67. We also highlighted\\n\\n 16\\n\\f Case: 17-11339 Document: 00515078178 Page: 17 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nthat “there is no evidence in the record before us that the state of technology is\\nsuch that images of this nature could have been generated using virtual chil-\\ndren.” Id. at 867. Consequently, “[w]hile it remains the Government’s burden\\nto show that actual children were depicted, the images themselves sufficed to\\nauthenticate them in this regard.” Id.\\n\\n The government also points to testimony from Agent Wilkerson estab-\\nlishing “that all of the images the jury had seen to that point, including the\\nCount Two images, and all other images at issue in the investigation of Pawlak,\\ndepicted real children.” Another government official, Special Agent Daniel\\nAlfin, answered “yes” when asked whether the Count Two images “‘appear[ed]\\nto’ be real children.”\\n\\n Ultimately, viewing the evidence in the light most favorable to the ver-\\ndict, the evidence was sufficient to sustain Pawlak’s conviction on Count Two.\\nHere, as was the case in McNealy, Pawlak points to no evidence in the record\\ndemonstrating that the Count Two images were anything other than what the\\ngovernment contended they were: child pornography involving actual pre-\\npubescent children. See id. at 866–67. Additionally, though it was “the [g]ov-\\nernment’s burden to show that actual children were depicted,” here, as in\\nMcNealy, “the images themselves sufficed to authenticate them in this regard.”\\nId. at 867. Consequently, this evidence, coupled with the testimony of Wilker-\\nson and Alfin, was sufficient to support the verdict on this count.\\n\\n C.\\n Count One charged Pawlak with receipt of child pornography in violation\\nof 18 U.S.C. § 2252A(a)(2)(A). Pawlak notes that the three images serving as\\nthe basis for Count One “were thumbnails found in the temporary internet\\nfiles, cache location on the Sigma94 computer.” Pawlak therefore contends\\nthat “[t]he problem with the sufficiency of evidence for these images . . . is that\\n\\n 17\\n\\f Case: 17-11339 Document: 00515078178 Page: 18 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nthe government has presented insufficient evidence to show where these items\\ncame from; when they were put on the computer; and who actually put the\\nitems on the computer.”\\n\\n Pawlak remarks that although he retained possession of the Sigma94\\ncomputer while employed by Sigma Cubed, “other employees had access to this\\ncomputer for extended periods.” Moreover, Pawlak acknowledges that he\\n“made some admissions in a telephone conversation with Special Agent Wil-\\nkerson,” but avers that “this conversation never established that he . . . viewed\\nimages on the Playpen website.” Consequently, he asserts that because “[t]he\\ngovernment did not present evidence that these specific images were know-\\ningly downloaded or received by Pawlak,” the evidence was insufficient to sus-\\ntain a conviction on this count.\\n\\n Conversely, the government maintains that Pawlak’s confession “to\\nbeing a long-time consumer of child pornography, . . . a PlayPen member, and\\n. . . particularly interested in images . . . involving prepubescent female chil-\\ndren,” coupled with the extensive forensic evidence tying him to the images,\\nwas sufficient to establish that he knowingly received the images. The\\ngovernment cites two precedents from this circuit in support of its position. In\\nUnited States v. Winkler, 639 F.3d 692, 693 (5th Cir. 2011), we affirmed a\\ndefendant’s conviction for knowing receipt of child pornography based on\\nimages found in his temporary Internet cache. We determined that “[t]he mere\\npresence of the files in the cache is certainly proof that the files were received,”\\nid. at 699 (citation omitted), and we noted that the “inquiry is highly fact\\nspecific and not tied to whether the files at issue were found in a cache\\ndirectory or, alternatively, in the user controlled portion of the hard drive,” id.\\nUltimately, we concluded that other evidence introduced by the government\\nestablished “a pattern of child pornography receipt and possession that could\\nalso have caused a rational jury to conclude that [the defendant] knowingly\\n 18\\n\\f Case: 17-11339 Document: 00515078178 Page: 19 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nreceived the files.” Id.\\n\\n Moreover, in United States v. Larman, 547 F. App’x 475 (5th Cir. 2013)\\n(per curiam), we affirmed a conviction for receipt of child pornography where\\nimages were found in the defendant’s temporary Internet cache and he\\nadmitted to federal agents that he had downloaded child pornography. Id.\\nat 479–81. The government stresses that—similar to the defendant in\\nLarman—“Pawlak confessed to a longstanding interest in and consumption of\\nchild pornography.” As part of his confession—which the government played\\nat trial—“Pawlak indicated he spent approximately half an hour per week\\nconsuming child pornography and admitted to accessing it on internet sites.”\\nHe “also admitted to having the username ‘notsoslow’ on the PlayPen website\\nand to having a computer named ‘Sigma94’ with a username of ‘d.pawlak’ while\\nworking at Sigma Cubed, tying him to the computer which downloaded the\\nimages.”\\n\\n The government contends that “[l]ike the defendant in Winkler, the evi-\\ndence showed Pawlak was a member of a website dedicated to child pornog-\\nraphy and that he consumed a great deal of other child pornography, evincing\\na pattern of child-pornography receipt.” Moreover, “like the defendant in Lar-\\nman, Pawlak confessed to obtaining child pornography over the internet.”\\n\\n Ultimately, the evidence was more than sufficient to sustain the con-\\nviction on Count One. Images of child pornography were found on Pawlak’s\\ncomputer in his temporary Internet cache. Pawlak admitted, in a recorded\\nconversation, to be being a long-time consumer of child pornography, and he\\nwas a member of PlayPen, a website dedicated to child pornography. Accord-\\ningly, viewed in the light most favorable to the verdict, this evidence sufficed\\nto establish Pawlak’s knowing receipt of child pornography.\\n\\n\\n\\n 19\\n\\f Case: 17-11339 Document: 00515078178 Page: 20 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\n V.\\n Pawlak maintains that the district court clearly erred in applying the\\nobstruction enhancement. Because Pawlak specifically objected, we review the\\n“district court’s interpretation or application of the Sentencing Guidelines” de\\nnovo. United States v. Adam, 296 F.3d 327, 334 (5th Cir. 2002). We review the\\ncourt’s factual findings, including a finding of obstruction of justice, for clear\\nerror. Id. “Where a factual finding is plausible in light of the record as a whole,\\nit is not clearly erroneous. Unless left with the definite and firm conviction\\nthat a mistake has been committed, [we] will not deem the district court’s find-\\ning to be clearly erroneous.” Id. (internal quotation marks and citation\\nomitted).\\n\\n A.\\n Section 3C1.1 of the U.S. Sentencing Guidelines, a sentencing adjust-\\nment for obstructing or impeding the administration of justice, provides that\\n [i]f (1) the defendant willfully obstructed or impeded, or attempted\\n to obstruct or impede, the administration of justice with respect to\\n the investigation, prosecution, or sentencing of the instant offense\\n of conviction, and (2) the obstructive conduct related to (A) the\\n defendant’s offense of conviction and any relevant conduct; or (B)\\n a closely related offense, increase the offense level by 2 levels.\\nThe application notes to the obstruction enhancement emphasize that, inter\\nalia, “destroying or concealing . . . evidence that is material to an official inves-\\ntigation or judicial proceeding (e.g., shredding a document or destroying led-\\ngers upon learning that an official investigation has commenced or is about to\\ncommence), or attempting to do so” qualifies as “the type[] of conduct to which\\nthis adjustment applies.” U.S.S.G. § 3C1.1 cmt. n.4(D).\\n\\n B.\\n Pawlak avers that, for two reasons, the district court clearly erred in\\napplying the obstruction enhancement. First, as Pawlak reads it, application\\n\\n 20\\n\\f Case: 17-11339 Document: 00515078178 Page: 21 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\nnote 4(D) supports his position that his conduct does not amount to obstruction\\nof justice because the attempt to erase his hard drive occurred contemporane-\\nously with his arrest. See id. (stating an exception, under some circumstances,\\nfor conduct that “occurred contemporaneously with arrest” and was not “a\\nmaterial hindrance” to the investigation). Second, Pawlak contends that the\\nmere act of searching for and downloading software designed to wipe a com-\\nputer hard drive, without deploying it, does not constitute obstruction of jus-\\ntice. Consequently, because “he did not actually deploy the program and his\\nconduct did not materially hinder the investigation and prosecution of the\\ncase,” the court clearly erred.\\n\\n In response, the government asserts that “[t]he district court did not\\nclearly err in enhancing Pawlak’s offense level for obstruction of justice be-\\ncause the evidence, including his confession, established that he downloaded a\\nprogram meant to erase a computer hard drive containing a cache of child\\npornography.” The government highlights that “after the FBI commenced its\\nsearch-warrant execution . . . Pawlak searched for a program meant to wipe\\nhis hard drive.” Pawlak later admitted to an FBI agent that he was unable to\\nexecute the program because he lacked an external drive necessary to utilize\\nit. After examining the Independence Oil computer, a forensic computer expert\\nconfirmed that the software had been downloaded and installed on the same\\nmorning that the FBI executed a search warrant at Pawlak’s residence. The\\ngovernment therefore contends that Pawlak fails “to show any error, much less\\nclear error, in the district court’s application of the obstruction enhancement\\nbased upon the concrete steps he took towards deleting material evidence from\\nhis computer after his conversation with” the FBI agent executing the search\\nwarrant.\\n\\n The court did not clearly err in applying the obstruction enhancement.\\nThe evidence demonstrates, and Pawlak readily admits, that he took affirma-\\n 21\\n\\f Case: 17-11339 Document: 00515078178 Page: 22 Date Filed: 08/15/2019\\n\\n\\n No. 17-11339\\n\\ntive steps to download a program aimed at permanently deleting the contents\\nof the Independence Oil computer hard drive, including more than eight hun-\\ndred images and four videos of child pornography. The successful deployment\\nof that program would have deleted material evidence from the hard drive,\\nthereby hindering the investigation. See U.S.S.G. § 3C1.1 cmt. n.4(D). That\\nPawlak was ultimately unsuccessful in deploying it is irrelevant: A defendant\\nalso qualifies for the enhancement when he merely attempts to obstruct jus-\\ntice. Id. § 3C1.1; see also id. § 3C1.1 cmt. n.4(D).\\n\\n Moreover, Pawlak’s attempt to obstruct justice was not contemporaneous\\nwith his arrest. Instead, he attempted to wipe his hard drive shortly after he\\nlearned that federal agents were searching his house. Cf. id. § 3C1.1 cmt.\\nn.4(D). Consequently, the district court did not clearly err in applying the two-\\nlevel obstruction enhancement.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 22\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3668,"cells":{"id":{"kind":"number","value":4648819,"string":"4,648,819"},"name":{"kind":"string","value":"ST. CHARLES SURGICAL HOSPITAL, L.L.C., Plaintiff-Appellee v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, Doing Business as Blue Cross/Blue Shield of Louisiana; Blue Cross & Blue Shield of Louisiana, Incorporated, Defendants-Appellants"},"name_abbreviation":{"kind":"string","value":"St. Charles Surgical Hosp., L. L.C. v. La. Health Serv. & Indem. Co."},"decision_date":{"kind":"string","value":"2019-08-15"},"docket_number":{"kind":"string","value":"18-30957"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"James, Haynes, Graves\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES C. HO, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-30957 Document: 00515078672 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-30957 FILED\\n August 15, 2019\\n Lyle W. Cayce\\nST. CHARLES SURGICAL HOSPITAL, L.L.C., Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nLOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, doing\\nbusiness as Blue Cross/Blue Shield of Louisiana; BLUE CROSS & BLUE\\nSHIELD OF LOUISIANA, INCORPORATED,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\\nJAMES C. HO, Circuit Judge:\\n Blue Cross seeks removal to federal court under the federal officer\\nremoval statute, 28 U.S.C. § 1442, on the ground that it is sued here in its\\ncapacity as an administrator of health care benefits for federal employees.\\nThree of our sister circuits have allowed removal under such circumstances.\\nSee Goncalves ex rel. Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d\\n1237, 1247 (9th Cir. 2017); Jacks v. Meridian Res. Co., LLC, 701 F.3d 1224,\\n1235 (8th Cir. 2012); Anesthesiology Assocs. of Tallahassee v. Blue Cross Blue\\nShield of Fla., Inc., 2005 WL 6717869, at *2 (11th Cir. 2005). We join our sister\\n\\f Case: 18-30957 Document: 00515078672 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\ncircuits in allowing Blue Cross to remove, and accordingly reverse the district\\ncourt’s judgment to the contrary.\\n I.\\n St. Charles Surgical Hospital, L.L.C. sued Louisiana Health Service\\n& Indemnity Company, d/b/a Blue Cross/Blue Shield of Louisiana and Blue\\nCross & Blue Shield of Louisiana, Inc. in Louisiana state court for violating\\nLouisiana law. Under Louisiana law, when an insurance company has notice\\nthat a patient has assigned benefits to a hospital, the insurance company is\\nrequired to pay the hospital, rather than the patient. See La. R.S. § 40:2010.\\nSt. Charles alleged that Blue Cross violated the Louisiana assignment statute\\nby paying benefits directly to patients rather than to St. Charles, despite the\\nfact that Blue Cross had notice that the patients had assigned those benefits\\nto the hospital.\\n Blue Cross removed the case to federal court based on the federal officer\\nremoval statute. 28 U.S.C. § 1442(a)(1). St. Charles moved to remand and also\\nsought attorney’s fees. The district court granted both motions. Blue Cross\\nappealed.\\n II.\\n We review a district court’s remand order de novo. See Sherrod v. Am.\\nAirlines, Inc., 132 F.3d 1112, 1117 (5th Cir. 1998).\\n The federal officer removal statute allows a defendant to remove a state\\ncourt action to federal court, if the state court action was brought against:\\n The United States or any agency thereof or any officer (or any\\n person acting under that officer) of the United States or of any\\n agency thereof, in an official or individual capacity, for or relating\\n to any act under color of such office or on account of any right, title\\n or authority claimed under any Act of Congress for the\\n apprehension or punishment of criminals or the collection of the\\n revenue.\\n\\n28 U.S.C. § 1442(a)(1) (emphasis added).\\n 2\\n\\f Case: 18-30957 Document: 00515078672 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\n To claim removal as a “person acting under” an officer of the United\\nStates, a party must show (1) that he is a person within the meaning of the\\nstatute; (2) that he acted under the direction of a federal officer; (3) that a\\ncausal nexus exists between his actions under color of federal office and the\\nplaintiff’s claims; and (4) that he has a colorable federal defense. See Bartel v.\\nAlcoa S.S. Co., Inc., 805 F.3d 169, 172 (5th Cir. 2015) (citing authorities).\\n St. Charles agrees that Blue Cross has satisfied the first condition of\\nremoval—that Blue Cross is a “person” under the federal officer removal\\nstatute—but contests the remaining three conditions. We address each in\\nturn, and ultimately conclude that Blue Cross has satisfied all conditions for\\nremoval as a person acting under an officer of the United States.\\n A.\\n To remove this action to federal court, Blue Cross must show, inter alia,\\nthat it “acted under the direction of a federal officer” when it paid the patients\\ndirectly, rather than the hospital, notwithstanding its awareness of the\\npatients’ assignment of benefits to the hospital.\\n “[T]he word ‘under’ must refer to what has been described as a\\nrelationship that involves ‘acting in a certain capacity, considered in relation\\nto one holding a superior position or office.’” Watson v. Philip Morris Cos., Inc.,\\n551 U.S. 142, 151 (2007) (quoting 18 OXFORD ENGLISH DICTIONARY 948 (2d ed.\\n1989)). “This relationship typically involves ‘subjection, guidance, or control.’”\\nZeringue v. Crane Co., 846 F.3d 785, 793 (5th Cir. 2017) (citing Watson, 551\\nU.S. at 151). “[T]he private person’s ‘acting under’ must involve an effort to\\nassist, or to help carry out, the duties or tasks of the federal superior.” Watson,\\n551 U.S. at 153 (citing Davis v. South Carolina, 107 U.S. 597, 600 (1883)).\\n Here, the relevant federal superior is the Office of Personnel\\nManagement. So we must determine whether OPM officials exert a sufficient\\nlevel of subjection, guidance, or control over Blue Cross to satisfy the “acting\\n 3\\n\\f Case: 18-30957 Document: 00515078672 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\nunder” requirement of the federal officer removal statute. To do so, we must\\nfirst understand OPM’s role in providing health care to federal employees.\\n Congress established a health insurance program for federal employees\\nthrough the Federal Employees Health Benefits Act. 5 U.S.C. § 8901 et seq.\\nUnder the FEHBA, OPM is responsible for contracting with private insurance\\ncarriers to provide health benefits plans to federal employees. See Houston\\nCmty. Hosp. v. Blue Cross and Blue Shield of Tex., Inc., 481 F.3d 265, 267 (5th\\nCir. 2007). Those contracts must contain a statement of benefits (known as\\nthe “Brochure”) that the carrier must provide. See 5 U.S.C. § 8902(d) (“Each\\ncontract under this chapter shall contain a detailed statement of benefits\\noffered and shall include such maximums, limitations, exclusions, and other\\ndefinitions of benefits as [OPM] considers necessary or desirable.”).\\n Pursuant to the FEHBA, OPM contracted with Blue Cross to provide\\nhealth benefits to federal employees. See Empire Healthchoice Assurance, Inc.\\nv. McVeigh, 547 U.S. 677, 684 (2006). Under OPM’s plan with Blue Cross, the\\nfederal government pays 75% of the insurance premiums, and the employee\\npays the remainder. Id. (citing 5 U.S.C. § 8906(b)). The premiums are\\ndeposited into a fund held by the U.S. Treasury, and Blue Cross draws from\\nthe fund to pay for covered benefits. Id. (citing 5 U.S.C. § 8909(a); 48 C.F.R\\n§ 1632.170(b)). The funds are not owned by Blue Cross—OPM owns the funds,\\nand OPM decides how to use any excess monies. Id. Blue Cross never takes\\non the risks of an insurer in its relationship with OPM. It operates instead as\\na claims processor, rather than an insurer. In the event of a dispute between\\na patient and Blue Cross over coverage, OPM resolves the issue. See 5 C.F.R.\\n§ 890.105(a).\\n Based on the structure of the relationship between OPM and Blue Cross,\\nwe conclude that that OPM enjoys a strong level of guidance and control over\\nBlue Cross. As our sister circuits have noted, “[a]t all times, the carrier is\\n 4\\n\\f Case: 18-30957 Document: 00515078672 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\nsubject to OPM oversight, uniquely operates with the United States Treasury,\\nsubmits to OPM’s regulatory requirements, and ultimately answers to federal\\nofficers.” Jacks, 701 F.3d at 1234 (citing Anesthesiology Assocs. of Tallahassee,\\n2005 WL 6717869, at *2). Therefore, we conclude that Blue Cross has satisfied\\nthe “acting under” requirement of the federal officer removal statute.\\n B.\\n Next, Blue Cross must show a “causal nexus” between its actions under\\ncolor of federal office and the plaintiff’s claims.\\n We analyzed the causal nexus requirement in Bartel. 805 F.3d at 174.\\nPlaintiffs there claimed they suffered asbestos-related injuries due to a\\nshipping company’s failure to warn them about asbestos on naval ships. Id. at\\n171. The shipping company sought removal to federal court. The company\\nargued that its contract with the federal government to operate ships owned\\nby the U.S. Navy was a sufficient causal nexus under the federal officer\\nremoval statute. Id. at 172. We disagreed because no federal officer or agency\\nprohibited the shipping company from warning the employees about the\\nasbestos. See id. at 174 (“There is no evidence that the government ever issued\\norders of any kind, let alone orders relating to safety procedures or asbestos.\\n. . . [The defendants] operated the vessels in a largely independent fashion\\nand, at a minimum, were free to adopt the safety measures the plaintiffs now\\nallege would have prevented their injuries.”). Therefore, we concluded that the\\ndefendant had not met the causal nexus requirement.\\n Applying Bartel here, we ask whether any federal directive prevented\\nBlue Cross from paying the hospital instead of the patients. Blue Cross points\\nto language in the Brochure that specifies how it must direct payments.\\nAccording to the Brochure, Blue Cross pays PPO providers and participating\\nproviders directly. For non-participating providers like St. Charles, however,\\nBlue Cross must pay the patient directly.\\n 5\\n\\f Case: 18-30957 Document: 00515078672 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\n Based on the language of the Brochure, we conclude that Blue Cross has\\nshown that it was prevented by federal directive from paying St. Charles\\ndirectly. As a result, Blue Cross has shown a casual nexus. 1\\n C.\\n Finally, Blue Cross must show that it has a colorable federal defense to\\nSt. Charles’ claim.\\n “[N]either we nor the Supreme Court has defined ‘colorable’ in the\\ncontext of § 1442.” Zeringue, 846 F.3d at 790. But we have made clear that a\\ndefendant’s federal defense need not prevail at the merits stage to warrant\\nremoval—it need only be material and non-frivolous. See id. Blue Cross has\\nasserted three possible federal defenses, and only one needs to be colorable for\\nBlue Cross to succeed on this factor.\\n Among the federal defenses asserted by Blue Cross is preemption. The\\nFEHBA “contains a preemption clause . . . displacing state law on issues\\nrelating to ‘coverage or benefits’ afforded by health-care plans.” Empire, 547\\nU.S. at 683. The preemption clause states:\\n The terms of any contract under this chapter which relate to the\\n nature, provision, or extent of coverage or benefits (including\\n payments with respect to benefits) shall supersede and preempt any\\n State or local law, or any regulation issued thereunder, which\\n relates to health insurance or plans.\\n\\n\\n\\n\\n 1 We recently granted rehearing in a case that challenges the causal nexus\\nrequirement, arguing that we should adopt the “broader” test employed by our sister\\ncircuits. See Latiolais v. Huntington Ingalls, Inc., 918 F.3d 406, 412–13 (5th Cir. 2019), reh’g\\nen banc granted, 923 F.3d 427 (5th Cir. 2019). Following the 2011 amendments to the federal\\nofficer removal statute, “[t]he Third and Fourth Circuits shifted their jurisprudence away\\nfrom the causal nexus test and now require only a ‘connection’ or ‘association’ . . . between\\nthe act in question and the federal office.” Id. (citing In re Commonwealth’s Motion to Appoint\\nCounsel Against or Directed to Defender Ass’n of Philadelphia, 790 F.3d 457, 471 (3d Cir.\\n2015); Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017)). As discussed above,\\nwe conclude that Blue Cross satisfies the narrower causal nexus test. Accordingly, we see no\\nreason to hold this case in abeyance pending en banc rehearing in Latiolais.\\n 6\\n\\f Case: 18-30957 Document: 00515078672 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\n5 U.S.C. § 8902(m)(1) (emphasis added).\\n The payment directives set out here in the Brochure “relate to . . .\\npayments with respect to benefits.” Id. Therefore, we conclude that Blue\\nCross’ preemption defense is non-frivolous and sufficient for purposes of the\\nfederal officer removal statute.\\n ***\\n We reverse both the district court’s remand of the case to state court and\\nthe district court’s award of attorney’s fees. 2\\n\\n\\n\\n\\n 2 Blue Cross properly removed the case to federal court. Accordingly, Blue Cross\\ncertainly had an “objectively reasonable basis for seeking removal.” Martin v. Franklin\\nCapital Corp., 546 U.S. 132, 141 (2005). We therefore hold that the district court abused its\\ndiscretion when it awarded attorney’s fees to St. Charles.\\n 7\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426072/\", \"author_raw\": \"JAMES C. HO, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JAMES"},"judge2":{"kind":"string","value":"HAYNES"},"judge3":{"kind":"string","value":"GRAVES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648819/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: ST. CHARLES SURGICAL HOSPITAL, L.L.C., Plaintiff-Appellee v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, Doing Business as Blue Cross/Blue Shield of Louisiana; Blue Cross & Blue Shield of Louisiana, Incorporated, Defendants-Appellants\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-30957 Document: 00515078672 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-30957 FILED\n August 15, 2019\n Lyle W. Cayce\nST. CHARLES SURGICAL HOSPITAL, L.L.C., Clerk\n\n Plaintiff - Appellee\n\nv.\n\nLOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, doing\nbusiness as Blue Cross/Blue Shield of Louisiana; BLUE CROSS & BLUE\nSHIELD OF LOUISIANA, INCORPORATED,\n\n Defendants - Appellants\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n\n\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\nJAMES C. HO, Circuit Judge:\n Blue Cross seeks removal to federal court under the federal officer\nremoval statute, 28 U.S.C. § 1442, on the ground that it is sued here in its\ncapacity as an administrator of health care benefits for federal employees.\nThree of our sister circuits have allowed removal under such circumstances.\nSee Goncalves ex rel. Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d\n1237, 1247 (9th Cir. 2017); Jacks v. Meridian Res. Co., LLC, 701 F.3d 1224,\n1235 (8th Cir. 2012); Anesthesiology Assocs. of Tallahassee v. Blue Cross Blue\nShield of Fla., Inc., 2005 WL 6717869, at *2 (11th Cir. 2005). We join our sister\n\f Case: 18-30957 Document: 00515078672 Page: 2 Date Filed: 08/15/2019\n\n\n\n No. 18-30957\ncircuits in allowing Blue Cross to remove, and accordingly reverse the district\ncourt’s judgment to the contrary.\n I.\n St. Charles Surgical Hospital, L.L.C. sued Louisiana Health Service\n& Indemnity Company, d/b/a Blue Cross/Blue Shield of Louisiana and Blue\nCross & Blue Shield of Louisiana, Inc. in Louisiana state court for violating\nLouisiana law. Under Louisiana law, when an insurance company has notice\nthat a patient has assigned benefits to a hospital, the insurance company is\nrequired to pay the hospital, rather than the patient. See La. R.S. § 40:2010.\nSt. Charles alleged that Blue Cross violated the Louisiana assignment statute\nby paying benefits directly to patients rather than to St. Charles, despite the\nfact that Blue Cross had notice that the patients had assigned those benefits\nto the hospital.\n Blue Cross removed the case to federal court based on the federal officer\nremoval statute. 28 U.S.C. § 1442(a)(1). St. Charles moved to remand and also\nsought attorney’s fees. The district court granted both motions. Blue Cross\nappealed.\n II.\n We review a district court’s remand order de novo. See Sherrod v. Am.\nAirlines, Inc., 132 F.3d 1112, 1117 (5th Cir. 1998).\n The federal officer removal statute allows a defendant to remove a state\ncourt action to federal court, if the state court action was brought against:\n The United States or any agency thereof or any officer (or any\n person acting under that officer) of the United States or of any\n agency thereof, in an official or individual capacity, for or relating\n to any act under color of such office or on account of any right, title\n or authority claimed under any Act of Congress for the\n apprehension or punishment of criminals or the collection of the\n revenue.\n\n28 U.S.C. § 1442(a)(1) (emphasis added).\n 2\n\f Case: 18-30957 Document: 00515078672 Page: 3 Date Filed: 08/15/2019\n\n\n\n No. 18-30957\n To claim removal as a “person acting under” an officer of the United\nStates, a party must show (1) that he is a person within the meaning of the\nstatute; (2) that he acted under the direction of a federal officer; (3) that a\ncausal nexus exists between his actions under color of federal office and the\nplaintiff’s claims; and (4) that he has a colorable federal defense. See Bartel v.\nAlcoa S.S. Co., Inc., 805 F.3d 169, 172 (5th Cir. 2015) (citing authorities).\n St. Charles agrees that Blue Cross has satisfied the first condition of\nremoval—that Blue Cross is a “person” under the federal officer removal\nstatute—but contests the remaining three conditions. We address each in\nturn, and ultimately conclude that Blue Cross has satisfied all conditions for\nremoval as a person acting under an officer of the United States.\n A.\n To remove this action to federal court, Blue Cross must show, inter alia,\nthat it “acted under the direction of a federal officer” when it paid the patients\ndirectly, rather than the hospital, notwithstanding its awareness of the\npatients’ assignment of benefits to the hospital.\n “[T]he word ‘under’ must refer to what has been described as a\nrelationship that involves ‘acting in a certain capacity, considered in relation\nto one holding a superior position or office.’” Watson v. Philip Morris Cos., Inc.,\n551 U.S. 142, 151 (2007) (quoting 18 OXFORD ENGLISH DICTIONARY 948 (2d ed.\n1989)). “This relationship typically involves ‘subjection, guidance, or control.’”\nZeringue v. Crane Co., 846 F.3d 785, 793 (5th Cir. 2017) (citing Watson, 551\nU.S. at 151). “[T]he private person’s ‘acting under’ must involve an effort to\nassist, or to help carry out, the duties or tasks of the federal superior.” Watson,\n551 U.S. at 153 (citing Davis v. South Carolina, 107 U.S. 597, 600 (1883)).\n Here, the relevant federal superior is the Office of Personnel\nManagement. So we must determine whether OPM officials exert a sufficient\nlevel of subjection, guidance, or control over Blue Cross to satisfy the “acting\n 3\n\f Case: 18-30957 Document: 00515078672 Page: 4 Date Filed: 08/15/2019\n\n\n\n No. 18-30957\nunder” requirement of the federal officer removal statute. To do so, we must\nfirst understand OPM’s role in providing health care to federal employees.\n Congress established a health insurance program for federal employees\nthrough the Federal Employees Health Benefits Act. 5 U.S.C. § 8901 et seq.\nUnder the FEHBA, OPM is responsible for contracting with private insurance\ncarriers to provide health benefits plans to federal employees. See Houston\nCmty. Hosp. v. Blue Cross and Blue Shield of Tex., Inc., 481 F.3d 265, 267 (5th\nCir. 2007). Those contracts must contain a statement of benefits (known as\nthe “Brochure”) that the carrier must provide. See 5 U.S.C. § 8902(d) (“Each\ncontract under this chapter shall contain a detailed statement of benefits\noffered and shall include such maximums, limitations, exclusions, and other\ndefinitions of benefits as [OPM] considers necessary or desirable.”).\n Pursuant to the FEHBA, OPM contracted with Blue Cross to provide\nhealth benefits to federal employees. See Empire Healthchoice Assurance, Inc.\nv. McVeigh, 547 U.S. 677, 684 (2006). Under OPM’s plan with Blue Cross, the\nfederal government pays 75% of the insurance premiums, and the employee\npays the remainder. Id. (citing 5 U.S.C. § 8906(b)). The premiums are\ndeposited into a fund held by the U.S. Treasury, and Blue Cross draws from\nthe fund to pay for covered benefits. Id. (citing 5 U.S.C. § 8909(a); 48 C.F.R\n§ 1632.170(b)). The funds are not owned by Blue Cross—OPM owns the funds,\nand OPM decides how to use any excess monies. Id. Blue Cross never takes\non the risks of an insurer in its relationship with OPM. It operates instead as\na claims processor, rather than an insurer. In the event of a dispute between\na patient and Blue Cross over coverage, OPM resolves the issue. See 5 C.F.R.\n§ 890.105(a).\n Based on the structure of the relationship between OPM and Blue Cross,\nwe conclude that that OPM enjoys a strong level of guidance and control over\nBlue Cross. As our sister circuits have noted, “[a]t all times, the carrier is\n 4\n\f Case: 18-30957 Document: 00515078672 Page: 5 Date Filed: 08/15/2019\n\n\n\n No. 18-30957\nsubject to OPM oversight, uniquely operates with the United States Treasury,\nsubmits to OPM’s regulatory requirements, and ultimately answers to federal\nofficers.” Jacks, 701 F.3d at 1234 (citing Anesthesiology Assocs. of Tallahassee,\n2005 WL 6717869, at *2). Therefore, we conclude that Blue Cross has satisfied\nthe “acting under” requirement of the federal officer removal statute.\n B.\n Next, Blue Cross must show a “causal nexus” between its actions under\ncolor of federal office and the plaintiff’s claims.\n We analyzed the causal nexus requirement in Bartel. 805 F.3d at 174.\nPlaintiffs there claimed they suffered asbestos-related injuries due to a\nshipping company’s failure to warn them about asbestos on naval ships. Id. at\n171. The shipping company sought removal to federal court. The company\nargued that its contract with the federal government to operate ships owned\nby the U.S. Navy was a sufficient causal nexus under the federal officer\nremoval statute. Id. at 172. We disagreed because no federal officer or agency\nprohibited the shipping company from warning the employees about the\nasbestos. See id. at 174 (“There is no evidence that the government ever issued\norders of any kind, let alone orders relating to safety procedures or asbestos.\n. . . [The defendants] operated the vessels in a largely independent fashion\nand, at a minimum, were free to adopt the safety measures the plaintiffs now\nallege would have prevented their injuries.”). Therefore, we concluded that the\ndefendant had not met the causal nexus requirement.\n Applying Bartel here, we ask whether any federal directive prevented\nBlue Cross from paying the hospital instead of the patients. Blue Cross points\nto language in the Brochure that specifies how it must direct payments.\nAccording to the Brochure, Blue Cross pays PPO providers and participating\nproviders directly. For non-participating providers like St. Charles, however,\nBlue Cross must pay the patient directly.\n 5\n\f Case: 18-30957 Document: 00515078672 Page: 6 Date Filed: 08/15/2019\n\n\n\n No. 18-30957\n Based on the language of the Brochure, we conclude that Blue Cross has\nshown that it was prevented by federal directive from paying St. Charles\ndirectly. As a result, Blue Cross has shown a casual nexus. 1\n C.\n Finally, Blue Cross must show that it has a colorable federal defense to\nSt. Charles’ claim.\n “[N]either we nor the Supreme Court has defined ‘colorable’ in the\ncontext of § 1442.” Zeringue, 846 F.3d at 790. But we have made clear that a\ndefendant’s federal defense need not prevail at the merits stage to warrant\nremoval—it need only be material and non-frivolous. See id. Blue Cross has\nasserted three possible federal defenses, and only one needs to be colorable for\nBlue Cross to succeed on this factor.\n Among the federal defenses asserted by Blue Cross is preemption. The\nFEHBA “contains a preemption clause . . . displacing state law on issues\nrelating to ‘coverage or benefits’ afforded by health-care plans.” Empire, 547\nU.S. at 683. The preemption clause states:\n The terms of any contract under this chapter which relate to the\n nature, provision, or extent of coverage or benefits (including\n payments with respect to benefits) shall supersede and preempt any\n State or local law, or any regulation issued thereunder, which\n relates to health insurance or plans.\n\n\n\n\n 1 We recently granted rehearing in a case that challenges the causal nexus\nrequirement, arguing that we should adopt the “broader” test employed by our sister\ncircuits. See Latiolais v. Huntington Ingalls, Inc., 918 F.3d 406, 412–13 (5th Cir. 2019), reh’g\nen banc granted, 923 F.3d 427 (5th Cir. 2019). Following the 2011 amendments to the federal\nofficer removal statute, “[t]he Third and Fourth Circuits shifted their jurisprudence away\nfrom the causal nexus test and now require only a ‘connection’ or ‘association’ . . . between\nthe act in question and the federal office.” Id. (citing In re Commonwealth’s Motion to Appoint\nCounsel Against or Directed to Defender Ass’n of Philadelphia, 790 F.3d 457, 471 (3d Cir.\n2015); Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017)). As discussed above,\nwe conclude that Blue Cross satisfies the narrower causal nexus test. Accordingly, we see no\nreason to hold this case in abeyance pending en banc rehearing in Latiolais.\n 6\n\f Case: 18-30957 Document: 00515078672 Page: 7 Date Filed: 08/15/2019\n\n\n\n No. 18-30957\n5 U.S.C. § 8902(m)(1) (emphasis added).\n The payment directives set out here in the Brochure “relate to . . .\npayments with respect to benefits.” Id. Therefore, we conclude that Blue\nCross’ preemption defense is non-frivolous and sufficient for purposes of the\nfederal officer removal statute.\n ***\n We reverse both the district court’s remand of the case to state court and\nthe district court’s award of attorney’s fees. 2\n\n\n\n\n 2 Blue Cross properly removed the case to federal court. Accordingly, Blue Cross\ncertainly had an “objectively reasonable basis for seeking removal.” Martin v. Franklin\nCapital Corp., 546 U.S. 132, 141 (2005). We therefore hold that the district court abused its\ndiscretion when it awarded attorney’s fees to St. Charles.\n 7\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: ST. CHARLES SURGICAL HOSPITAL, L.L.C., Plaintiff-Appellee v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, Doing Business as Blue Cross/Blue Shield of Louisiana; Blue Cross & Blue Shield of Louisiana, Incorporated, Defendants-Appellants\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-30957 Document: 00515078672 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-30957 FILED\\n August 15, 2019\\n Lyle W. Cayce\\nST. CHARLES SURGICAL HOSPITAL, L.L.C., Clerk\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nLOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, doing\\nbusiness as Blue Cross/Blue Shield of Louisiana; BLUE CROSS & BLUE\\nSHIELD OF LOUISIANA, INCORPORATED,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\\nJAMES C. HO, Circuit Judge:\\n Blue Cross seeks removal to federal court under the federal officer\\nremoval statute, 28 U.S.C. § 1442, on the ground that it is sued here in its\\ncapacity as an administrator of health care benefits for federal employees.\\nThree of our sister circuits have allowed removal under such circumstances.\\nSee Goncalves ex rel. Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d\\n1237, 1247 (9th Cir. 2017); Jacks v. Meridian Res. Co., LLC, 701 F.3d 1224,\\n1235 (8th Cir. 2012); Anesthesiology Assocs. of Tallahassee v. Blue Cross Blue\\nShield of Fla., Inc., 2005 WL 6717869, at *2 (11th Cir. 2005). We join our sister\\n\\f Case: 18-30957 Document: 00515078672 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\ncircuits in allowing Blue Cross to remove, and accordingly reverse the district\\ncourt’s judgment to the contrary.\\n I.\\n St. Charles Surgical Hospital, L.L.C. sued Louisiana Health Service\\n& Indemnity Company, d/b/a Blue Cross/Blue Shield of Louisiana and Blue\\nCross & Blue Shield of Louisiana, Inc. in Louisiana state court for violating\\nLouisiana law. Under Louisiana law, when an insurance company has notice\\nthat a patient has assigned benefits to a hospital, the insurance company is\\nrequired to pay the hospital, rather than the patient. See La. R.S. § 40:2010.\\nSt. Charles alleged that Blue Cross violated the Louisiana assignment statute\\nby paying benefits directly to patients rather than to St. Charles, despite the\\nfact that Blue Cross had notice that the patients had assigned those benefits\\nto the hospital.\\n Blue Cross removed the case to federal court based on the federal officer\\nremoval statute. 28 U.S.C. § 1442(a)(1). St. Charles moved to remand and also\\nsought attorney’s fees. The district court granted both motions. Blue Cross\\nappealed.\\n II.\\n We review a district court’s remand order de novo. See Sherrod v. Am.\\nAirlines, Inc., 132 F.3d 1112, 1117 (5th Cir. 1998).\\n The federal officer removal statute allows a defendant to remove a state\\ncourt action to federal court, if the state court action was brought against:\\n The United States or any agency thereof or any officer (or any\\n person acting under that officer) of the United States or of any\\n agency thereof, in an official or individual capacity, for or relating\\n to any act under color of such office or on account of any right, title\\n or authority claimed under any Act of Congress for the\\n apprehension or punishment of criminals or the collection of the\\n revenue.\\n\\n28 U.S.C. § 1442(a)(1) (emphasis added).\\n 2\\n\\f Case: 18-30957 Document: 00515078672 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\n To claim removal as a “person acting under” an officer of the United\\nStates, a party must show (1) that he is a person within the meaning of the\\nstatute; (2) that he acted under the direction of a federal officer; (3) that a\\ncausal nexus exists between his actions under color of federal office and the\\nplaintiff’s claims; and (4) that he has a colorable federal defense. See Bartel v.\\nAlcoa S.S. Co., Inc., 805 F.3d 169, 172 (5th Cir. 2015) (citing authorities).\\n St. Charles agrees that Blue Cross has satisfied the first condition of\\nremoval—that Blue Cross is a “person” under the federal officer removal\\nstatute—but contests the remaining three conditions. We address each in\\nturn, and ultimately conclude that Blue Cross has satisfied all conditions for\\nremoval as a person acting under an officer of the United States.\\n A.\\n To remove this action to federal court, Blue Cross must show, inter alia,\\nthat it “acted under the direction of a federal officer” when it paid the patients\\ndirectly, rather than the hospital, notwithstanding its awareness of the\\npatients’ assignment of benefits to the hospital.\\n “[T]he word ‘under’ must refer to what has been described as a\\nrelationship that involves ‘acting in a certain capacity, considered in relation\\nto one holding a superior position or office.’” Watson v. Philip Morris Cos., Inc.,\\n551 U.S. 142, 151 (2007) (quoting 18 OXFORD ENGLISH DICTIONARY 948 (2d ed.\\n1989)). “This relationship typically involves ‘subjection, guidance, or control.’”\\nZeringue v. Crane Co., 846 F.3d 785, 793 (5th Cir. 2017) (citing Watson, 551\\nU.S. at 151). “[T]he private person’s ‘acting under’ must involve an effort to\\nassist, or to help carry out, the duties or tasks of the federal superior.” Watson,\\n551 U.S. at 153 (citing Davis v. South Carolina, 107 U.S. 597, 600 (1883)).\\n Here, the relevant federal superior is the Office of Personnel\\nManagement. So we must determine whether OPM officials exert a sufficient\\nlevel of subjection, guidance, or control over Blue Cross to satisfy the “acting\\n 3\\n\\f Case: 18-30957 Document: 00515078672 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\nunder” requirement of the federal officer removal statute. To do so, we must\\nfirst understand OPM’s role in providing health care to federal employees.\\n Congress established a health insurance program for federal employees\\nthrough the Federal Employees Health Benefits Act. 5 U.S.C. § 8901 et seq.\\nUnder the FEHBA, OPM is responsible for contracting with private insurance\\ncarriers to provide health benefits plans to federal employees. See Houston\\nCmty. Hosp. v. Blue Cross and Blue Shield of Tex., Inc., 481 F.3d 265, 267 (5th\\nCir. 2007). Those contracts must contain a statement of benefits (known as\\nthe “Brochure”) that the carrier must provide. See 5 U.S.C. § 8902(d) (“Each\\ncontract under this chapter shall contain a detailed statement of benefits\\noffered and shall include such maximums, limitations, exclusions, and other\\ndefinitions of benefits as [OPM] considers necessary or desirable.”).\\n Pursuant to the FEHBA, OPM contracted with Blue Cross to provide\\nhealth benefits to federal employees. See Empire Healthchoice Assurance, Inc.\\nv. McVeigh, 547 U.S. 677, 684 (2006). Under OPM’s plan with Blue Cross, the\\nfederal government pays 75% of the insurance premiums, and the employee\\npays the remainder. Id. (citing 5 U.S.C. § 8906(b)). The premiums are\\ndeposited into a fund held by the U.S. Treasury, and Blue Cross draws from\\nthe fund to pay for covered benefits. Id. (citing 5 U.S.C. § 8909(a); 48 C.F.R\\n§ 1632.170(b)). The funds are not owned by Blue Cross—OPM owns the funds,\\nand OPM decides how to use any excess monies. Id. Blue Cross never takes\\non the risks of an insurer in its relationship with OPM. It operates instead as\\na claims processor, rather than an insurer. In the event of a dispute between\\na patient and Blue Cross over coverage, OPM resolves the issue. See 5 C.F.R.\\n§ 890.105(a).\\n Based on the structure of the relationship between OPM and Blue Cross,\\nwe conclude that that OPM enjoys a strong level of guidance and control over\\nBlue Cross. As our sister circuits have noted, “[a]t all times, the carrier is\\n 4\\n\\f Case: 18-30957 Document: 00515078672 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\nsubject to OPM oversight, uniquely operates with the United States Treasury,\\nsubmits to OPM’s regulatory requirements, and ultimately answers to federal\\nofficers.” Jacks, 701 F.3d at 1234 (citing Anesthesiology Assocs. of Tallahassee,\\n2005 WL 6717869, at *2). Therefore, we conclude that Blue Cross has satisfied\\nthe “acting under” requirement of the federal officer removal statute.\\n B.\\n Next, Blue Cross must show a “causal nexus” between its actions under\\ncolor of federal office and the plaintiff’s claims.\\n We analyzed the causal nexus requirement in Bartel. 805 F.3d at 174.\\nPlaintiffs there claimed they suffered asbestos-related injuries due to a\\nshipping company’s failure to warn them about asbestos on naval ships. Id. at\\n171. The shipping company sought removal to federal court. The company\\nargued that its contract with the federal government to operate ships owned\\nby the U.S. Navy was a sufficient causal nexus under the federal officer\\nremoval statute. Id. at 172. We disagreed because no federal officer or agency\\nprohibited the shipping company from warning the employees about the\\nasbestos. See id. at 174 (“There is no evidence that the government ever issued\\norders of any kind, let alone orders relating to safety procedures or asbestos.\\n. . . [The defendants] operated the vessels in a largely independent fashion\\nand, at a minimum, were free to adopt the safety measures the plaintiffs now\\nallege would have prevented their injuries.”). Therefore, we concluded that the\\ndefendant had not met the causal nexus requirement.\\n Applying Bartel here, we ask whether any federal directive prevented\\nBlue Cross from paying the hospital instead of the patients. Blue Cross points\\nto language in the Brochure that specifies how it must direct payments.\\nAccording to the Brochure, Blue Cross pays PPO providers and participating\\nproviders directly. For non-participating providers like St. Charles, however,\\nBlue Cross must pay the patient directly.\\n 5\\n\\f Case: 18-30957 Document: 00515078672 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\n Based on the language of the Brochure, we conclude that Blue Cross has\\nshown that it was prevented by federal directive from paying St. Charles\\ndirectly. As a result, Blue Cross has shown a casual nexus. 1\\n C.\\n Finally, Blue Cross must show that it has a colorable federal defense to\\nSt. Charles’ claim.\\n “[N]either we nor the Supreme Court has defined ‘colorable’ in the\\ncontext of § 1442.” Zeringue, 846 F.3d at 790. But we have made clear that a\\ndefendant’s federal defense need not prevail at the merits stage to warrant\\nremoval—it need only be material and non-frivolous. See id. Blue Cross has\\nasserted three possible federal defenses, and only one needs to be colorable for\\nBlue Cross to succeed on this factor.\\n Among the federal defenses asserted by Blue Cross is preemption. The\\nFEHBA “contains a preemption clause . . . displacing state law on issues\\nrelating to ‘coverage or benefits’ afforded by health-care plans.” Empire, 547\\nU.S. at 683. The preemption clause states:\\n The terms of any contract under this chapter which relate to the\\n nature, provision, or extent of coverage or benefits (including\\n payments with respect to benefits) shall supersede and preempt any\\n State or local law, or any regulation issued thereunder, which\\n relates to health insurance or plans.\\n\\n\\n\\n\\n 1 We recently granted rehearing in a case that challenges the causal nexus\\nrequirement, arguing that we should adopt the “broader” test employed by our sister\\ncircuits. See Latiolais v. Huntington Ingalls, Inc., 918 F.3d 406, 412–13 (5th Cir. 2019), reh’g\\nen banc granted, 923 F.3d 427 (5th Cir. 2019). Following the 2011 amendments to the federal\\nofficer removal statute, “[t]he Third and Fourth Circuits shifted their jurisprudence away\\nfrom the causal nexus test and now require only a ‘connection’ or ‘association’ . . . between\\nthe act in question and the federal office.” Id. (citing In re Commonwealth’s Motion to Appoint\\nCounsel Against or Directed to Defender Ass’n of Philadelphia, 790 F.3d 457, 471 (3d Cir.\\n2015); Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017)). As discussed above,\\nwe conclude that Blue Cross satisfies the narrower causal nexus test. Accordingly, we see no\\nreason to hold this case in abeyance pending en banc rehearing in Latiolais.\\n 6\\n\\f Case: 18-30957 Document: 00515078672 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-30957\\n5 U.S.C. § 8902(m)(1) (emphasis added).\\n The payment directives set out here in the Brochure “relate to . . .\\npayments with respect to benefits.” Id. Therefore, we conclude that Blue\\nCross’ preemption defense is non-frivolous and sufficient for purposes of the\\nfederal officer removal statute.\\n ***\\n We reverse both the district court’s remand of the case to state court and\\nthe district court’s award of attorney’s fees. 2\\n\\n\\n\\n\\n 2 Blue Cross properly removed the case to federal court. Accordingly, Blue Cross\\ncertainly had an “objectively reasonable basis for seeking removal.” Martin v. Franklin\\nCapital Corp., 546 U.S. 132, 141 (2005). We therefore hold that the district court abused its\\ndiscretion when it awarded attorney’s fees to St. Charles.\\n 7\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3669,"cells":{"id":{"kind":"number","value":4648820,"string":"4,648,820"},"name":{"kind":"string","value":"John Paul DEJORIA, Plaintiff-Appellee v. MAGHREB PETROLEUM EXPLORATION, S.A. ; Mideast Fund for Morocco, Limited, Defendants-Appellants"},"name_abbreviation":{"kind":"string","value":"John DeJoria v. Maghreb Petroleum Expl, S.A., et a"},"decision_date":{"kind":"string","value":"2019-08-15"},"docket_number":{"kind":"string","value":"18-50348"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Jolly, Costa, Engelhardt\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREGG COSTA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50348 Document: 00515078514 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 18-50348\\n Fifth Circuit\\n\\n FILED\\n August 15, 2019\\n\\nJOHN PAUL DEJORIA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nMAGHREB PETROLEUM EXPLORATION, S.A.; MIDEAST FUND FOR\\nMOROCCO, LIMITED,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n In 1999, philanthropist, environmental activist, and haircare and liquor\\ntycoon John Paul DeJoria was attempting to achieve yet another title: oil\\nmagnate. It did not go well. What started as a project that promised to provide\\nMorocco with decades of energy independence ended with a Moroccan court’s\\nlevying a judgment north of $100 million against DeJoria and his business\\npartner. Whether Texas should recognize that foreign judgment is now the\\ncenterpiece of this decades-long dispute. In fact, proving that it is often harder\\nto collect a judgment than win one, this is the second time the question of the\\njudgment’s validity has come before us. This time around we decide whether\\n\\f Case: 18-50348 Document: 00515078514 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nan interim change in the Texas recognition law violates the state’s\\nconstitutional ban on retroactive laws. If not, we must determine whether the\\ndistrict court properly followed this court’s 2015 mandate and whether it\\nproperly applied the new law.\\n I.\\n The facts of this case are littered across the pages of the Federal\\nReporter. See DeJoria v. Maghreb Petroleum Expl., S.A., 804 F.3d 373 (5th\\nCir. 2015); Skidmore Energy, Inc. v. Maghreb Petroleum Expl., S.A., 337 F.\\nApp’x 706 (9th Cir. 2009); Skidmore Energy, Inc. v. KPMG, 455 F.3d 564 (5th\\nCir. 2006). Because this court has already described the background of this\\ncorner of the dispute, we will do our best not to spill unnecessary ink. See\\nDeJoria, 804 F.3d at 377–78. The winding path the case followed after our\\ncourt’s 2015 remand will spill enough as it is. For now, suffice it to say that in\\n1999 DeJoria and his business partners started Lone Star Energy Corporation\\nin Morocco with the help of King Mohammed VI’s first cousin. The enterprise\\nhoped to discover oil reserves in Northeastern Morocco. The prospects looked\\ngood—so good that the King took to Moroccan airwaves to announce that the\\ncountry would soon be in possession of “copious and high-quality” oil that\\nwould allow Morocco to be self-sufficient for 30 years. The King’s\\nannouncement made the Moroccan stock market jump more than five percent\\nin anticipation of the expected riches.\\n But when the promised reserves did not materialize, the project quickly\\nsoured. DeJoria and his business partner were forced off Lone Star’s board,\\nand, fearing for their lives because of an alleged death threat, fled Morocco,\\nnever to return.\\n Not long after their ouster, DeJoria and his associates were sued in\\nMoroccan commercial court by Lone Star’s new management (now called\\nMaghreb Petroleum Exploration, S.A.) and its major investor, Mideast Fund\\n 2\\n\\f Case: 18-50348 Document: 00515078514 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nfor Morocco. Maghreb, the term we will use to collectively refer to those two\\nentities, alleged that DeJoria and his partners mismanaged Lone Star and\\nfraudulently induced investment in the doomed oil project. Seven years later,\\nthe Moroccan court returned a large judgment for Maghreb. It dismissed\\nclaims against five of the seven defendants, placing the blame—and the bill for\\n969,832,062.22 Moroccan dirhams 1—squarely on DeJoria and his partner.\\n Before going further, a little bit about the legal backdrop is helpful. In\\norder to collect its winnings from DeJoria’s assets in the United States,\\nMaghreb must convince an American court to recognize and enforce the\\nMoroccan judgement. 2 Recognition of foreign-country judgments is a matter\\nof state law and was once mostly governed by principles of comity. See Hilton\\nv. Guyot, 159 U.S. 113, 163–64, 180–81 (1895). In some jurisdictions, comity\\nis still the rule. See, e.g., Kwongyuen Hangkee Co., Ltd. v. Starr Fireworks,\\nInc., 634 N.W.2d 95, 96 (S.D. 2001). But most states have codified their\\nrecognition standards and procedures by enacting the 1962 Uniform Foreign\\nMoney Judgments Recognition Act 3 or its 2005 successor, the Uniform Foreign-\\nCountry Money Judgments Recognition Act. 4 Both acts make foreign\\n\\n\\n 1 Because Maghreb has yet to secure recognition of its judgment, the district court has\\nnot calculated how much it is worth in U.S. dollars. But the parties put the value at around\\n$123 million.\\n 2 Recognition is different from enforcement, but the former is necessary for the latter.\\n\\nSee Yuliya Zeynalova, The Law on Recognition and Enforcement of Foreign Judgments: Is It\\nBroken and How Do We Fix It?, 31 BERKELEY J. INT’L L. 150, 155 (2013) (describing\\nrecognition as akin to domesticating the judgement and enforcement as enlisting the courts\\nand law enforcement to aid in collection). Only recognition is at issue in this case.\\n 3 For a list of the 34 jurisdictions that have enacted the 1962 version, see Foreign\\n\\nMoney Judgments Act, Uniform Law Commission, https://www.uniformlaws.org/\\ncommittees/community-home?CommunityKey=9c11b007-83b2-4bf2-a08e-74f642c840bc (last\\nvisited August 6, 2019).\\n 4 For a list of the 25 jurisdictions that have enacted the 2005 version (for some,\\n\\nrepealing the 1962 version in the process), see Foreign-Country Money Judgments\\nRecognition Act, Uniform Law Commission, https://www.uniformlaws.org/\\ncommittees/community-home?CommunityKey=ae280c30-094a-4d8f-b722-8dcd614a8f3e\\n(last visited August 6, 2019).\\n 3\\n\\f Case: 18-50348 Document: 00515078514 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\njudgments that are final and conclusive where rendered “enforceable” in the\\nrelevant state court just like another state’s judgment would be. Unif. Foreign-\\nCountry Money Judgments Recognition Act § 7(2), U.L.A. (2005) (West); Unif.\\nForeign Money Judgment Act § 3, U.L.A. (1962) (West). Although these acts\\npresumptively treat properly filed foreign judgments as enforceable,\\nexceptional circumstances can rebut that presumption. Some of those\\nexceptions are mandatory, others discretionary. If the rendering court did not\\nhave personal jurisdiction over the judgment debtor, for instance, the state\\ncourt (or federal court sitting in diversity) cannot recognize the foreign\\njudgment. 2005 Unif. Act § 4(b)(2); 1962 Unif. Act § 4(a)(2). Other grounds for\\nnonrecognition, like fraud in obtaining the judgment, instead give the\\nAmerican court the option of not recognizing the foreign judgment. 2005 Unif.\\nAct § 4(c)(2); 1962 Unif. Act § 4(b)(2).\\n So, in 2013, Maghreb came to the United States seeking recognition of\\nthe Moroccan judgment. 5 DeJoria resisted in several ways. At the time, Texas\\nhad adopted (with slight modification) the 1962 Uniform Recognition Act. See\\nTEX. CIV. PRAC. & REM. CODE § 36.001–08 (Vernon’s 2015). That law included\\nten nonrecognition grounds. DeJoria pressed seven of them. The district court\\nfocused on only one avenue to nonrecognition. It determined that the Moroccan\\njudgment was “rendered under a system that does not provide impartial\\ntribunals or procedures compatible with the requirements of due process of\\nlaw.” Id. § 36.005(a)(1). Because this was a mandatory nonrecognition ground,\\n\\n\\n\\n\\n 5 The procedural history is a bit more complicated. DeJoria, perhaps believing the\\nbest defense is a good offense, went to Texas court first, seeking preemptive nonrecognition\\nof the Moroccan judgment and an antisuit injunction. Maghreb removed to federal court and\\ncounterclaimed for recognition. But DeJoria eventually dismissed his affirmative claims,\\nconforming this action to the more typical posture—judgment creditor seeking recognition,\\njudgment debtor resisting.\\n 4\\n\\f Case: 18-50348 Document: 00515078514 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nthe district court refused to recognize the Moroccan judgment and dismissed\\nthe case.\\n We reversed. DeJoria, 804 F.3d at 389. The panel held that, under\\nTexas’s version of the 1962 Uniform Recognition Act, DeJoria could not obtain\\nnonrecognition by showing he was denied due process or impartial tribunals in\\nhis case, but instead had the much greater burden of showing that Morocco’s\\nlegal “system as a whole” was so deficient that no Texas court should ever\\nrecognize a Moroccan judgment. Id. at 381. 6 And although the prior panel’s\\ninquiry focused on whether the Moroccan judicial system could provide\\nAmericans fair proceedings, it remarked that “the record does not establish\\nthat the King actually exerted any improper influence on the Moroccan court\\nin this case.” Id. at 382 n.9. The case was remanded.\\n Back before the district court, and in front of the magistrate judge to\\nwhom the matter was referred, the parties immediately began to squabble over\\nthe scope of that court’s power on remand. 7 DeJoria was adamant that he\\nshould still be allowed to push for nonrecognition on grounds not addressed by\\nthe Fifth Circuit. Maghreb disagreed and moved for entry of judgment. The\\ndistrict court denied Maghreb’s motion, agreeing with DeJoria that he could\\nstill attempt to establish other grounds for nonrecognition.\\n While the sound and fury continued apace in the trial court, a second\\nfront in this dispute opened, this time in the Texas legislature. With the\\ntestimonial aid of one of DeJoria’s lawyers, the 2017 legislative session was\\nconsidering updating the Recognition Act to the 2005 uniform act. Among\\nother changes, the new law would add two discretionary grounds for\\n\\n\\n 6 That panel also rejected another two of DeJoria’s arguments for nonrecognition—\\nthat Morocco would not reciprocally recognize a Texas judgment and that the Moroccan court\\ndid not have personal jurisdiction over DeJoria. DeJoria, 804 F.3d at 384–89.\\n 7 Because the district court adopted the magistrate’s recommendations in all relevant\\n\\nrespects, we will describe the postremand rulings as district court rulings.\\n 5\\n\\f Case: 18-50348 Document: 00515078514 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nnonrecognition: a court would be able to deny recognition if “the judgment was\\nrendered in circumstances that raise substantial doubt about the integrity of\\nthe rendering court with respect to the judgment” or, more importantly in this\\ncase, if “the specific proceeding in the foreign court leading to the judgment\\nwas not compatible with the requirements of due process of law.” 2005 Unif.\\nAct § 4(c)(7)–(8).\\n These substantive differences between the old and new law were not the\\nfocus of hearings on the bill. Instead, a change not found in the new Uniform\\nLaw nor in the versions of that law passed by other states drew the most\\nattention. The drafters had made the law retroactive to pending cases. The\\nonly pending case the legislators were told about was this one. Despite the\\nconcern of at least one legislator that the law was going to change the outcome\\nof this case midstream, the law was adopted with the retroactivity provision.\\n2017 Tex. Sess. Law Serv. Ch. 390 (S.B. 944) (Vernon’s), codified at TEX. CIV.\\nPRAC. & REM. CODE § 36A.001–11.\\n With his legislative victory in hand, DeJoria returned to the district\\ncourt to inform it of the change in Texas law. Although he argued that\\nnonrecognition was warranted on multiple grounds, the district court again\\nfocused on only one. Finding the new law did not run afoul of the Texas\\nConstitution’s prohibition of retroactive laws, this time the court granted\\nDeJoria’s motion for nonrecognition after determining that the specific\\nproceedings leading to the judgment against him were incompatible with the\\nrequirements of due process. 8 To reach that decision, the district court\\nreadopted many of the case-specific findings underlying the order this court\\n\\n\\n 8 The court declined to reach DeJoria’s other arguments for nonrecognition: that 1) the\\nMoroccan judgment was rendered under circumstances that raise substantial doubt about\\nthe integrity of the rendering court, 2) the Moroccan judgment was repugnant to Texas public\\npolicy, and 3) recognition of the judgment would violate the Due Process Clause of the\\nFourteenth Amendment.\\n 6\\n\\f Case: 18-50348 Document: 00515078514 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nhad reversed. But it also made new findings: that DeJoria was unable to\\nattend the Moroccan proceedings, that he was unable to obtain counsel to\\nrepresent him in those proceedings, and that, although the Moroccan court\\nrelied on an expert’s opinion to determine damages, that expert lacked\\nindependence. The court again dismissed the case. Maghreb again appealed.\\n II.\\n We have jurisdiction over this case owing to the diversity of the parties,\\nso we apply Texas substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78\\n(1938). In doing so, we are bound by the decisions of the Supreme Court of\\nTexas. Comm’r v. Bosch’s Estate, 387 U.S. 456, 465 (1967). But when no\\ndecision of that court directly addresses the case before us, we are forced to\\nmake an Erie guess, doing our best to write the opinion the Texas high court\\nwould if it had the chance. 9 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir.\\n2018).\\n We must make such a guess to determine which of the Uniform\\nRecognition Acts applies. The Texas Constitution provides that “[n]o bill of\\nattainder, ex post facto law, retroactive law, or any law impairing the\\nobligation of contracts, shall be made.” Tex. Const. art. I, § 16. Although\\nphrased as an absolute prohibition, “[m]ere retroactivity is not sufficient to\\n\\n\\n\\n 9 Although neither party asks us to certify this question to the state court, in an\\namicus brief the State of Texas suggests we should consider it, especially if we are inclined\\nto overturn the statute. We decline to do so because we do not think application of the\\nSupreme Court of Texas’s many retroactivity precedents to this statute leaves us with a close\\ncall. Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 549 (5th Cir. 1998) (noting that the\\n“closeness of the question” and “the existence of sufficient sources of state law” are the most\\nimportant factors in deciding to certify (quotation omitted)). Moreover, a case in which a\\nforeign corporation is attempting to argue that a state legislature has passed a law as a favor\\nto one of its wealthiest citizens seems like the quintessential case for the exercise of diversity\\njurisdiction. Cf. 13E Charles Alan Wright et. al, FED. PRAC. & PROC. § 3601 (3d ed. 2019)\\n(describing the most common justification for federal diversity jurisdiction as “the fear that\\nstate courts would be prejudiced against out-of-state litigants, particularly when opposed by\\nan in-stater”).\\n 7\\n\\f Case: 18-50348 Document: 00515078514 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\ninvalidate a statute.” Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d\\n126, 139 (Tex. 2010) (quotation omitted). Texas courts have tailored the scope\\nof the prohibition to “protect[] settled expectations and prevent[] abuse of\\nlegislative power.” Id. Three factors determinine whether a law runs afoul of\\nthose objectives: “the nature and strength of the public interest served by the\\nstatute as evidenced by the Legislature’s factual findings; the nature of the\\nprior right impaired by the statute; and the extent of the impairment.” Id. at\\n145. The nature and extent of the interference with a party’s rights loom\\nparticularly large. For that reason, “changes in the law that merely affect\\nremedies or procedure, or that otherwise have little impact on prior rights, are\\nusually not unconstitutionally retroactive.” Id. at 146; see also Univ. of Tex.\\nSw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548 (Tex. 2010)\\n(“Statutes . . . that do not deprive the parties of a substantive right . . . may be\\napplied to cases pending at the time of enactment.”).\\n The new law’s limited interference with Maghreb’s legitimate rights\\nresolves the question before us. Unlike Robinson—the seminal Texas case on\\nretroactivity—this is not a case in which a law that allowed a party’s recovery\\nwas changed to “abrogate their claim.” Robinson, 335 S.W.3d at 148. It is not\\neven certain that the law as it stood before the adoption of the updated act\\nwould have led to recognition of the Moroccan judgment. As we mentioned,\\nthe district court agreed to allow DeJoria to press several arguments for\\nnonrecognition after this court returned the case to its hands. 10 Because the\\npassage of the new act made it unnecessary to address those claims, we do not\\n\\n\\n\\n 10 In particular, prior to the update of the law, DeJoria retained the ability to argue\\nthat two additional nonrecognition factors applied: that the “cause of action on which the\\njudgment is based is repugnant to the public policy” of Texas and that Morocco was a\\n“seriously inconvenient forum.” TEX. CIV. PRAC. & REM. CODE §§ 36.005(b)(3) and (6)\\n(Vernon’s 2015). Beyond the Recognition Act’s domain, DeJoria was also raising a federal\\ndue process challenge to recognition of the Moroccan judgment.\\n 8\\n\\f Case: 18-50348 Document: 00515078514 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nknow how likely they were to succeed. Maghreb’s expectation that it would\\nprevail was, in other words, not yet settled. See Union Carbide Corp. v.\\nSynatzske, 438 S.W.3d 39, 58 (Tex. 2014) (upholding retroactive application of\\na law because the plaintiff’s “recovery was not yet predictable” at the time the\\nlaw went into effect).\\n The bigger point, though, is that the retroactive law does not abrogate\\nMaghreb’s claim. It does not strip Maghreb of the ability to seek recognition\\nof the Moroccan judgment. It just gives a district court the ability to deny\\nrecognition if it finds the judgment was obtained in proceedings that were\\nincompatible with the requirements of due process. So the only right that has\\nbeen impinged is the right to automatic recognition of a judgment obtained in\\nproceedings that denied the judgment debtor fundamental fairness. To state\\nthat “right” is to show why we cannot recognize it, let alone allow its protection\\nto sink a state statute. Robinson, 335 S.W.3d at 146 (“[C]ourts must be mindful\\nthat statutes are not to be set aside lightly.”). Indeed, the absurdity of lending\\na court’s power to the vindication of fundamentally unfair proceedings is why\\nthe 2005 Uniform Act recognizes an absence of due process as one of the rare\\nsituations when an American court may not recognize a foreign judgment. It\\nis also noteworthy that the Supreme Court of Texas has only upheld challenges\\nto the retroactive application of a law on four occasions, all of which dealt with\\nlaws that revived expired claims or fully extinguished vested rights. Tenet\\nHospitals Ltd. v. Rivera, 445 S.W.3d 698, 708 (Tex. 2014) (collecting cases).\\nThe updated recognition act does neither.\\n We are mindful that the whiff of home cooking also pervades the Texas\\nside of this case. There is a deep irony in allowing DeJoria to contend he was\\ndenied due process in Morocco when it was his lobbying efforts that changed\\nthe rules of the game midway through the proceedings in the United States.\\nIndeed, the Supreme Court of Texas has been suspicious of retroactive laws\\n 9\\n\\f Case: 18-50348 Document: 00515078514 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nthat inure to the benefit of only one company or individual. 11 Robinson, 335\\nS.W.3d at 149. But in the retroactivity context as in others, “unfair does not\\nalways equal unconstitutional.” Id. at 160 (Willett, J. concurring). And it\\ncannot be said that a state’s desire to provide immediate protection to the due\\nprocess rights of its citizens is not compelling. When balanced against the\\nslight imposition on a right of dubious provenance, retroactive application of\\nthe updated Recognition Act does not violate the Texas Constitution.\\n III.\\n A.\\n Having decided that Texas’s choice to apply its new Recognition Act to\\npending cases was proper, we now must review the district court’s application\\nof that law. And to do that we must determine how closely we should scrutinize\\nthat court’s work.\\n Reciting the standard of review in an appellate opinion is often a rote\\nexercise. Not here. Recognizing that the appeal’s outcome largely turns on\\nthis question, the parties have spent considerable energy contesting whether\\nwe owe deference to certain district court rulings. Maghreb insists that we\\nshould review all aspects of the district court’s denial of recognition de novo,\\nlikening the inquiry to a review for legal sufficiency. DeJoria counters that we\\nshould review the court’s factual findings only for clear error.\\n Much of the confusion surrounding the standard of review arises from\\nthis case’s odd posture. The district court did not rule on a motion for summary\\njudgment or conduct a bench trial, but instead resolved a “motion for\\n\\n\\n\\n\\n 11 DeJoria points to one other recognition case that was pending at the time the law\\nwas passed, In re Carmona, 580 B.R. 690 (Bankr. S.D. Tex. 2018). But the Texas legislature\\nwas only made aware of one case that would be affected by the retroactivity provision—this\\none.\\n\\n 10\\n\\f Case: 18-50348 Document: 00515078514 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nnonrecognition.” That motion is a creature of state law. 12 Regardless of the\\nstyling of the motion on which the district court ruled, however, our appellate\\nstandard of review is governed by federal law, even in this diversity case. See\\nGoodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1040 (5th Cir. 2011); Tax\\nTrack Sys. Corp. v. New Investor World, Inc., 478 F.3d 783, 789 (7th Cir. 2007);\\nHershon v. Gibraltar Bldg. & Loan Ass’n, Inc., 864 F.2d 848, 852 (D.C. Cir.\\n1989). 13\\n The prior panel explained that “[w]hether the judgment debtor\\nestablished that [a] non-recognition provision[] applies is a question of law\\nreviewed de novo.” DeJoria, 804 F.3d at 379. We agree. But the panel had no\\ncause to determine the proper standard of review for the factual findings that\\nunderpin the district court’s legal decision. After all, the issues in that\\nappeal—whether the Moroccan system provides procedures compatible with\\ndue process, whether Moroccan law provides a mechanism to reciprocate\\nrecognition of Texas judgments, and whether the Moroccan court had personal\\njurisdiction over DeJoria—were all legal determinations. See FED. R. CIV. P.\\n44.1 (“The court’s determination [of foreign law] must be treated as a ruling on\\na question of law.”); In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant\\nProduct Liability Litig., 888 F.3d 753, 778 (5th Cir. 2018) (“This court reviews\\n[the] district court’s exercise of personal jurisdiction de novo.” (quotation\\nomitted)).\\n\\n\\n 12 It is not clear, then, how this type of motion found its way to federal court. In federal\\ncourt, the Federal Rules of Civil Procedure should govern how the parties seek and resist\\nrecognition of the judgment. See, e.g., Sw. Livestock and Trucking Co., Inc. v. Ramon, 169\\nF.3d 317, 321 & n.3 (5th Cir. 1999) (disposing of the recognition issue on a federal motion for\\nsummary judgment). Neither party, however, has objected to the use of state procedure in\\nthis federal action, leaving this panel in somewhat uncharted territory.\\n 13 If the Recognition Act demanded a particular standard of review for “manifestly\\n\\nsubstantive” ends, that might be a different story. See Gasperini v. Ctr. for Humanities, Inc.,\\n518 U.S. 415, 429 (1996) (holding that state law governs the trial court standard for\\ndetermining whether a verdict is excessive). It does not.\\n 11\\n\\f Case: 18-50348 Document: 00515078514 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\n But it is a venerable principle that a district court’s factual findings are\\nreversed only if clearly erroneous. FED. R. CIV. P. 52(a)(6) (standard for bench\\ntrials); see also Steven Alan Childress & Martha S. Davis, 1 FEDERAL\\nSTANDARDS OF REVIEW § 2.03[8] 2-32–33 (4th ed. 2010) (explaining that\\n“[m]any courts . . . have assumed that [the] clearly erroneous rule applies to\\nfindings made on motions in addition to trial findings”). Even when an\\nappellate court considers a legal question de novo, that plenary power of review\\ndoes not extend to subsidiary factual findings. See Allstate Ins. Co. v. Abbott,\\n495 F.3d 151, 160 (5th Cir. 2007) (“[S]ubsidiary facts are reviewed for clear\\nerror.”) (citing Maine v. Taylor, 477 U.S. 131, 144–45 (1986)). To take just one\\nexample, jurisdiction is a legal question. But the facts that underlie a\\njurisdictional determination are still reviewed only for clear error. See, e.g.,\\nid.; DePuy Orthopaedics, 888 F.3d at 778 (applying clear error review to\\n“underlying jurisdictional findings of fact” and de novo review to ultimate\\npersonal jurisdiction holding (quotation omitted)); Pederson v. La. State Univ.,\\n213 F.3d 858, 869 (5th Cir. 2000) (“If the district court resolves any factual\\ndisputes in making its jurisdictional findings,” those resolutions are\\noverturned only if “clearly erroneous.” (quotation omitted)). The same must be\\ntrue for factfinding that underpins the legal conclusion of nonrecognition.\\n Appellate court deference to district court factfinding is grounded in\\nconcerns of both expertise and efficiency. Maghreb points out that one of the\\nstrongest justifications for deference—the trial court’s ability to assess the\\ncredibility of live testimony, Anderson v. City of Bessemer City, 470 U.S. 564,\\n575 (1985)—is not present because the testimony of the foreign witnesses was\\npresented on paper. But we defer even when the trial court’s findings are\\n“based . . . on physical or documentary evidence or inferences from other facts.”\\nId. at 574. That is because “[t]he trial judge’s major role is the determination\\nof fact, and with experience in fulfilling that role comes expertise.” Id. Clear\\n 12\\n\\f Case: 18-50348 Document: 00515078514 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nerror review also promotes judicial efficiency. Id. at 574–75 (“Duplication of\\nthe trial judge’s efforts in the court of appeals would very likely contribute only\\nnegligibly to the accuracy of fact determination at a huge cost in diversion of\\njudicial resources.”). District court judges, who do the lion’s share of the work\\nin our federal system, do not dig through voluminous records only to have\\ncourts like this one restart the factfinding from scratch. Instead of redoing\\ntheir work, we defer to their findings so long as they take a permissible view\\nof the evidence. Id. at 574.\\n Although the standard of review is a federal issue, like the prior panel\\nwe “look to Texas law” governing recognition to see if anything counsels in a\\ndifferent direction. 14 DeJoria, 804 F.3d at 379. Nothing does. We see no Texas\\nrecognition case that conflicts with the principles of federal appellate review\\noutlined above. When a trial court is presented with conflicting evidence in\\nrecognition proceedings, Texas courts “defer to the trial court’s . . . resolution\\nof those conflicts.” Mariles v. Hector, No. 05-16-00814-CV, 2018 WL 3723104\\n*6 (Tex. App.—Dallas Aug. 6, 2018, pet. denied). Maghreb cites some Texas\\ncases that explain what we have acknowledged: that review of the district\\ncourt’s ultimate determination of the application of a nonrecognition factor\\n\\n\\n 14 As we have explained, the proper standard of appellate review is a question of\\nfederal law. We do not read this court’s 2015 opinion as out of step with that conclusion. It\\nmay be that the prior panel looked to Texas law only to ascertain whether recognition was a\\nlegal or factual question. See Childress & Davis, supra § 2.03[7] 2-32 n.158 (noting that,\\ndespite application of federal standards of review in diversity cases, “[u]se of state law-fact\\ncharacterization may be more defensible” as that question borders on the substantive). But\\nto the extent the prior panel’s opinion could be read to suggest that state law controls the\\napplicable standard of review in federal court, it announced principles with respect to “the\\ndistrict court’s recognition decision.” DeJoria, 804 F.3d at 379. Again, we answer a different\\nquestion—what level of scrutiny should we apply to the findings of fact subsidiary to that\\nultimate legal conclusion? That question, at least, is controlled by federal law.\\n In any event, we have perused Texas caselaw only out of an abundance of caution. It\\nis less useful this time around—no Texas case has yet analyzed the new factbound\\nnonrecognition factors added by the updated act.\\n\\n 13\\n\\f Case: 18-50348 Document: 00515078514 Page: 14 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nshould be de novo. See, e.g., Sanchez v. Palau, 317 S.W.3d 780, 785 (Tex.\\nApp.—Houston [1st Dist.] 2010, pet. denied) (“[W]e review de novo a trial\\ncourt’s ruling on recognition of a foreign country judgment.”); The Courage Co.,\\nL.L.C. v. The Chemshare Corp., 93 S.W.3d 323, 331 (Tex. App.—Houston [14th\\nDist.] 2002, no pet.) (same). 15 But they have pointed to no case that instructs\\na court of appeals to start on a blank slate in determining the facts. That is\\nnot surprising. Consistent with the standard practice, Texas courts also\\ngenerally defer to trial court factfinding. In re I.I.G.T., 412 S.W.3d 803, 806\\n(Tex. App.—Dallas 2013, no pet.) (explaining that an appellate court should\\nnot normally “disturb the [trial] court’s resolution of evidentiary conflicts that\\nturn on . . . the weight of the evidence”). We thus can disturb the district\\ncourt’s findings only if they are not “plausible in light of the record viewed in\\nits entirety.” Anderson, 470 U.S. at 574.\\n B.\\n Maghreb’s primary argument on appeal—that DeJoria lost his\\nopportunity to complain about the Moroccan proceedings because he failed to\\nparticipate in them—must overcome this deference to the district court’s\\nfactfinding. Maghreb notes that we have “flatly reject[ed]” the due process\\nobjections of judgment debtors who were “given, and waived, the opportunity\\nof making [an] adequate presentation” in the foreign tribunal. Society of\\nLloyd’s v. Turner, 303 F.3d 325, 331 n.20 (5th Cir. 2002) (quotation omitted);\\n\\n\\n 15 Varying procedural postures and a lack of clarity with respect to whether the\\nstandard of review depends on the nonrecognition factor at issue further frustrate the search\\nfor coherence on this question. See Ramon, 169 F.3d at 318 (analyzing recognition decision\\non summary judgment, which is always reviewed de novo); Banque Libanaise Pour Le\\nCommerce v. Khreich, 915 F.2d 1000, 1004 (5th Cir. 1990) (reviewing for abuse of discretion\\na trial court’s choice to apply a discretionary nonrecognition ground, like the ground at issue\\nin this case); Dart v. Balaam, 953 S.W.2d 478, 482–83 (Tex. App.—Fort Worth 1997, no pet.)\\n(reviewing for abuse of discretion the trial court’s determination whether Australia was an\\ninconvenient forum). The important point for this appeal is that we have seen no appellate\\ncourt in a recognition dispute engage in de novo factfinding.\\n 14\\n\\f Case: 18-50348 Document: 00515078514 Page: 15 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nsee also Dart, 953 S.W.2d at 480 (“Grounds for nonrecognition may be waived\\nif a party had the right to assert that ground as an objection or defense in the\\nforeign country but failed to do so.”).\\n But our limited authority when it comes to facts makes short work of\\nthat argument. The district court made three major findings to support\\nnonrecognition: 1) DeJoria’s fear for his safety should he return to Morocco to\\nlitigate was credible and arose directly from his involvement in the Moroccan\\nlawsuit because DeJoria’s position in the Moroccan lawsuit was directly\\nadverse to the interests of the royal family, he was unable to retain a lawyer\\nto appear for him in the initial proceedings or to bring an appeal although the\\ndetermination of damages was based on expert opinion, the Moroccan court\\nmanipulated that process when it went through four experts before finding one\\nthat would deliver its preferred recommendation. Taken together, the first and\\nsecond findings mean that DeJoria was never “given . . . the opportunity of\\nmaking [an] adequate presentation” in Moroccan court and the third means\\nhis case did not otherwise receive fair treatment. Turner, 303 F.3d at 331 n.20.\\nSo unless those findings were clearly erroneous, Maghreb’s “waiver” argument\\nfails.\\n To be sure, Maghreb points to substantial evidence that could support\\ncontrary findings. Its problem is that there is evidence on both sides of these\\ndisputes. Even if Maghreb can convince us that its evidence is stronger, that\\nis not enough to establish that the district court’s crediting of DeJoria’s\\nevidence is implausible. Theriot v. Par. of Jefferson, 185 F.3d 477, 490 (5th\\nCir. 1999) (“Where the evidence can support findings either way, a choice by\\nthe trial judge between two permissible views of the weight of the evidence is\\nnot clearly erroneous.”)\\n Take for instance the finding that DeJoria credibly feared for his life and\\nso was unable to attend the Moroccan proceedings in person. Michael Gustin,\\n 15\\n\\f Case: 18-50348 Document: 00515078514 Page: 16 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nDeJoria’s business partner, described receiving a death threat and explained\\nthat it was directed at both him and DeJoria. DeJoria himself declared that\\nGustin communicated that threat to him and that he believed it was credible.\\nAnd the record contains evidence that their unsuccessful attempts to obtain\\nrepresentation in Morocco may have only heightened their fear. A French\\nattorney with some Moroccan experience told them that it was not only unsafe\\nfor DeJoria and Gustin to return to Morocco, but it would be “unsafe and\\nunwise for any lawyer” or “any sane person,” for that matter, to participate in\\na case that so closely touched the royal family’s interests. Nearly a decade\\nlater, that attorney repeated his concerns. The general counsel for Skidmore,\\nDeJoria’s company that spearheaded the Moroccan project, also says he was\\ntold to stay out of the country by a Moroccan attorney who had been hired to\\nhandle various clerical tasks as the Moroccan lawsuit proceeded. She warned\\nthat “any appearance by Skidmore or any personal representative of Skidmore\\nin the Moroccan lawsuit would be dangerous.”\\n Of course, these assertions all come from individuals who may have an\\naxe to grind in this case. And we are not told much about the circumstances\\nor content of the death threat because Gustin maintains that he “cannot reveal\\n[the] details . . . without compromising the safety of innocent people still in\\nMorocco.” Bias and lack of detail are classic impeachment evidence. But\\nimpeachment usually goes to the weight of the evidence. Arguing about the\\nweight of the evidence is not the terrain an appellant wants to be on. See La\\nDay v. Catalyst Tech., Inc., 302 F.3d 474, 480 (5th Cir. 2002) (noting that it is\\nthe factfinder who “ultimately . . . decide[s] which side has the greater weight\\nof the evidence”).\\n Nor does Maghreb get over the clearly-erroneous hurdle because it\\npresented testimony that DeJoria could have appeared and obtained counsel\\nin the Moroccan litigation. Choosing between conflicting testimony is the\\n 16\\n\\f Case: 18-50348 Document: 00515078514 Page: 17 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nprovince of the factfinder. See Anderson, 470 U.S. at 575 (concluding it “can\\nvirtually never be clear error” when a trial court “credit[s] the testimony of one\\nof two or more witnesses, each of whom has told a coherent and facially\\nplausible story that is not contradicted by extrinsic evidence”). And while\\nMaghreb emphasizes the testimony of its expert on Moroccan law, expert\\ntestimony does not automatically trump lay testimony. Breland v. United\\nStates, 372 F.2d 629, 633 (5th Cir. 1967) (“[L]ay testimony can be sufficient to\\nsatisfy [a party’s] burden even though there is expert testimony to the\\ncontrary.”); see also FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS 3.5 (Civil)\\n(2014) (explaining that, for expert witness testimony, “[a]s with any other\\nwitness, it is up to [the factfinder] to decide whether to rely on it”).\\n To undo factual determinations on appeal, Maghreb must convince us\\nnot that it has the more compelling evidence, but that the other side’s\\ntestimony is not “plausible.” Anderson, 470 U.S. at 574. Maghreb’s expert\\nwitness, a Moroccan attorney, contends that DeJoria’s worries were “baseless\\nand reflect[] his poor understanding of Morocco.” And they also point to several\\ninstances in which Moroccan courts have ruled against royal interests. But\\nthat a trier of fact could plausibly infer that the death threat was fabricated\\ndoes not mean it is implausible to find that the threat was real. Id. at 574.\\n The same may be said for the other two key findings. For instance,\\nalthough DeJoria was able to retain Moroccan attorneys as experts in\\nproceedings stateside after the Moroccan trial court handed down its\\njudgment, there was evidence that two of his attempts to obtain representation\\nin the Moroccan proceedings were rebuffed. And though there was no smoking\\ngun, it was not clear error for the district court to conclude that the Moroccan\\ncourt went fishing for an expert who would determine DeJoria and his partner\\nhad caused Maghreb substantial damages. After all, the expert who found\\nthose damages was the fifth appointed by the Moroccan court—the first three\\n 17\\n\\f Case: 18-50348 Document: 00515078514 Page: 18 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\n“concluded that they could not provide any firm opinion on the matter” and the\\nfourth was replaced for reasons that remain unclear.\\n Although the district court’s assessment of the evidence may be subject\\nto vigorous debate, it is the district court’s job to resolve evidentiary disputes,\\nnot ours. Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d\\n1031, 1036 (5th Cir. 2015) (explaining that, even when “there are two\\npermissible views of the evidence,” the trial court’s choice between them is\\ntypically owed “great deference”). Maghreb has not shown clear error. 16\\n C.\\n Perhaps realizing that its argument founders on the district court’s\\ndifficult-to-undo findings, Maghreb’s primary challenge to those findings is\\nthat they should not have been made in the first place. Each of the pertinent\\nfindings, it argues, was precluded by the prior panel’s opinion.\\n Under the law-of-the-case doctrine—and its corollary, the mandate\\nrule—when a district court receives a case on remand, it may not reexamine\\nthe legal or factual determinations of this court or otherwise disobey our\\nmandate. See Tollett v. City of Kemah, 285 F.3d 357, 363–64 (5th Cir. 2002).\\nThe reach of those related doctrines extends only to matters decided expressly\\nor by necessary implication. In re Felt, 255 F.3d 220, 225 (5th Cir. 2001). And\\nan issue is tacitly decided only when its disposition is a “necessary predicate[]\\nto the ability to address the issue or issues specifically discussed” in the\\nappellate court’s opinion. Id.\\n\\n\\n\\n\\n 16It is worth noting that the three trial judges who handled aspects of this case all\\ngenerally found DeJoria’s evidence about what happened in Morocco more persuasive than\\nMaghreb’s. Three trial judges have reviewed the case because this appeal comes from\\nfindings of a magistrate judge, adopted by the district judge, and the earlier appeal came\\nfrom findings of a different district judge. Although some of the findings in this phase of the\\ncase are new, they rely on much of the same testimony the district court relied on the first\\ntime around.\\n 18\\n\\f Case: 18-50348 Document: 00515078514 Page: 19 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\n The prior panel’s opinion did not preclude the findings the district court\\nmade on remand. First and foremost, the prior appeal was decided under a\\ndifferent law. United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)\\n(describing an exception to the law-of-the-case doctrine when “there has been\\nan intervening change of law by a controlling authority”). That law did not\\nrequire the prior panel to determine whether DeJoria’s “specific proceeding[s]”\\nwere “compatible with the requirements of due process of law.” TEX. CIV. PRAC.\\n& REM. CODE § 36A.004(c)(8). So that panel had no cause to determine\\nwhether DeJoria could in fact safely return to Morocco or whether DeJoria\\ncould in fact retain representation. In determining whether the Moroccan legal\\nsystem made fair proceedings impossible, whether Moroccan courts would\\nreciprocate recognition, and whether the Moroccan commercial court had\\npersonal jurisdiction over DeJoria, the prior panel’s analysis was focused on\\nlegal questions. The fact-intensive inquiry demanded by Texas’s updated\\nRecognition Act put the case on a new playing field.\\n But even if the district court were operating in the same legal landscape,\\nnothing in the prior panel’s opinion forecloses the district court’s findings. The\\npanel held that the Moroccan court’s exercise of jurisdiction over DeJoria did\\nnot violate traditional notions of “fair play and substantial justice” because,\\ndespite any burden litigating in Morocco might place on DeJoria, “Moroccan\\ncourts do not require that the defendant appear personally, and DeJoria could\\nhave litigated entirely through counsel without returning to Morocco.”\\nDeJoria, 804 F.3d at 389. And, relying on testimony from a Moroccan attorney\\nacting as Maghreb’s expert, the court pointed out that “it is ‘not at all\\nuncommon’ for Moroccan attorneys to represent unpopular figures in Moroccan\\ncourts.” Id. at 383. But these general statements about usual Moroccan\\npractices did not address whether DeJoria could have found a willing attorney\\n\\n\\n 19\\n\\f Case: 18-50348 Document: 00515078514 Page: 20 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nin Morocco in his high-profile case. 17 Nor does it avail Maghreb to draw our\\nattention to the previous panel’s aside that, “[a]lthough our inquiry focuses on\\nMorocco’s judicial system, we also observe that the record does not establish\\nthat the King actually exerted any improper influence on the Moroccan court\\nin this case.” Id. at 382 n.9 (emphasis in original). For one, the comment is\\nadmittedly dicta—the footnote could have been erased from the opinion\\nwithout disrupting its systemwide holding in the slightest. Pegues v.\\nMorehouse Parish Sch. Bd., 706 F.2d 735, 738 (5th Cir. 1983) (explaining that\\nlaw of the case does not apply to dicta). And in any case, the question under\\nthe Texas statute is not whether the King actively undermined the\\nproceedings, but whether DeJoria was afforded a fundamentally fair hearing.\\nThe prior panel’s general observations did not foreclose the more searching\\nfactual inquiry now required under Texas law. 18\\n D.\\n Our holding that the district court did not clearly err in its factfinding\\nnor adopt those findings in the face of a contrary mandate from this court\\nleaves us little left to do. Maghreb does not dispute the nonrecognition\\nconclusion if we uphold the findings that DeJoria could neither appear\\npersonally nor find a lawyer to appear for him. That is a sensible stance.\\n\\n\\n 17 And nothing in the prior panel’s opinion foreclosed the district court’s finding that\\nDeJoria could not safely return to Morocco. Indeed, the prior panel did not even mention the\\nalleged threat on DeJoria’s life, let alone determine its credibility.\\n 18 Maghreb also argues at some length about the propriety of a host of other findings\\n\\nthat the magistrate made by readopting the findings made before the first appeal. For\\nreasons similar to those discussed above, we doubt there is much to Maghreb’s argument that\\nthose readopted findings were barred by the law of the case. Nor do we believe its argument\\nthat this court’s 2015 reversal rendered those factual findings “null and void” holds much\\nwater. In many other contexts, a district court will readopt its findings without fanfare when\\nan appeals court returns the case after locating a legal error. See, e.g., Chemtech Royalty\\nAssocs., L.P. v. United States, 823 F.3d 282, 287–88 (5th Cir. 2016); United States v. Ellis,\\n201 F. App’x 170 (4th Cir. 2006) (per curiam). But because we believe the new findings made\\nby the district court are sufficient to justify its nonrecognition decision, we see no need to\\nexplore this issue further.\\n 20\\n\\f Case: 18-50348 Document: 00515078514 Page: 21 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nRecognition of a foreign-country judgment does not require the foreign court to\\n“comply with the traditional rigors of American due process.” Turner, 303 F.3d\\nat 330. But the opportunity to present one’s case is no minor twist or turn of\\nmodern due process jurisprudence: “The fundamental requirement of due\\nprocess is the opportunity to be heard at a meaningful time and in a\\nmeaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)\\n(quotation omitted). In light of the facts as found by the district court, it\\nproperly determined that DeJoria was denied due process in Morocco. The\\ndistrict court thus had and properly exercised discretion to deny recognition to\\nthe Moroccan judgment. 19\\n * * *\\n So despite the seeming complexity of this case—royal intrigue, a foreign\\nproceeding, almost a billion dirhams at stake—it ends up being resolved on one\\nof the most basic principles of appellate law: deference to the factfinder. The\\njudgment is AFFIRMED.\\n\\n\\n\\n\\n 19The parties also contest whether recognition should be denied because the Moroccan\\njudgment is repugnant to public policy or because failing to do so would violate the\\nFourteenth Amendment’s due process guarantee. Because we affirm the district court’s\\nnonrecognition decision on another ground, there is no need to discuss those disputes.\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426073/\", \"author_raw\": \"GREGG COSTA, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"COSTA"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648820/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: John Paul DEJORIA, Plaintiff-Appellee v. MAGHREB PETROLEUM EXPLORATION, S.A. ; Mideast Fund for Morocco, Limited, Defendants-Appellants\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50348 Document: 00515078514 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n\n No. 18-50348\n Fifth Circuit\n\n FILED\n August 15, 2019\n\nJOHN PAUL DEJORIA, Lyle W. Cayce\n Clerk\n Plaintiff - Appellee\n\nv.\n\nMAGHREB PETROLEUM EXPLORATION, S.A.; MIDEAST FUND FOR\nMOROCCO, LIMITED,\n\n Defendants - Appellants\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n In 1999, philanthropist, environmental activist, and haircare and liquor\ntycoon John Paul DeJoria was attempting to achieve yet another title: oil\nmagnate. It did not go well. What started as a project that promised to provide\nMorocco with decades of energy independence ended with a Moroccan court’s\nlevying a judgment north of $100 million against DeJoria and his business\npartner. Whether Texas should recognize that foreign judgment is now the\ncenterpiece of this decades-long dispute. In fact, proving that it is often harder\nto collect a judgment than win one, this is the second time the question of the\njudgment’s validity has come before us. This time around we decide whether\n\f Case: 18-50348 Document: 00515078514 Page: 2 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nan interim change in the Texas recognition law violates the state’s\nconstitutional ban on retroactive laws. If not, we must determine whether the\ndistrict court properly followed this court’s 2015 mandate and whether it\nproperly applied the new law.\n I.\n The facts of this case are littered across the pages of the Federal\nReporter. See DeJoria v. Maghreb Petroleum Expl., S.A., 804 F.3d 373 (5th\nCir. 2015); Skidmore Energy, Inc. v. Maghreb Petroleum Expl., S.A., 337 F.\nApp’x 706 (9th Cir. 2009); Skidmore Energy, Inc. v. KPMG, 455 F.3d 564 (5th\nCir. 2006). Because this court has already described the background of this\ncorner of the dispute, we will do our best not to spill unnecessary ink. See\nDeJoria, 804 F.3d at 377–78. The winding path the case followed after our\ncourt’s 2015 remand will spill enough as it is. For now, suffice it to say that in\n1999 DeJoria and his business partners started Lone Star Energy Corporation\nin Morocco with the help of King Mohammed VI’s first cousin. The enterprise\nhoped to discover oil reserves in Northeastern Morocco. The prospects looked\ngood—so good that the King took to Moroccan airwaves to announce that the\ncountry would soon be in possession of “copious and high-quality” oil that\nwould allow Morocco to be self-sufficient for 30 years. The King’s\nannouncement made the Moroccan stock market jump more than five percent\nin anticipation of the expected riches.\n But when the promised reserves did not materialize, the project quickly\nsoured. DeJoria and his business partner were forced off Lone Star’s board,\nand, fearing for their lives because of an alleged death threat, fled Morocco,\nnever to return.\n Not long after their ouster, DeJoria and his associates were sued in\nMoroccan commercial court by Lone Star’s new management (now called\nMaghreb Petroleum Exploration, S.A.) and its major investor, Mideast Fund\n 2\n\f Case: 18-50348 Document: 00515078514 Page: 3 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nfor Morocco. Maghreb, the term we will use to collectively refer to those two\nentities, alleged that DeJoria and his partners mismanaged Lone Star and\nfraudulently induced investment in the doomed oil project. Seven years later,\nthe Moroccan court returned a large judgment for Maghreb. It dismissed\nclaims against five of the seven defendants, placing the blame—and the bill for\n969,832,062.22 Moroccan dirhams 1—squarely on DeJoria and his partner.\n Before going further, a little bit about the legal backdrop is helpful. In\norder to collect its winnings from DeJoria’s assets in the United States,\nMaghreb must convince an American court to recognize and enforce the\nMoroccan judgement. 2 Recognition of foreign-country judgments is a matter\nof state law and was once mostly governed by principles of comity. See Hilton\nv. Guyot, 159 U.S. 113, 163–64, 180–81 (1895). In some jurisdictions, comity\nis still the rule. See, e.g., Kwongyuen Hangkee Co., Ltd. v. Starr Fireworks,\nInc., 634 N.W.2d 95, 96 (S.D. 2001). But most states have codified their\nrecognition standards and procedures by enacting the 1962 Uniform Foreign\nMoney Judgments Recognition Act 3 or its 2005 successor, the Uniform Foreign-\nCountry Money Judgments Recognition Act. 4 Both acts make foreign\n\n\n 1 Because Maghreb has yet to secure recognition of its judgment, the district court has\nnot calculated how much it is worth in U.S. dollars. But the parties put the value at around\n$123 million.\n 2 Recognition is different from enforcement, but the former is necessary for the latter.\n\nSee Yuliya Zeynalova, The Law on Recognition and Enforcement of Foreign Judgments: Is It\nBroken and How Do We Fix It?, 31 BERKELEY J. INT’L L. 150, 155 (2013) (describing\nrecognition as akin to domesticating the judgement and enforcement as enlisting the courts\nand law enforcement to aid in collection). Only recognition is at issue in this case.\n 3 For a list of the 34 jurisdictions that have enacted the 1962 version, see Foreign\n\nMoney Judgments Act, Uniform Law Commission, https://www.uniformlaws.org/\ncommittees/community-home?CommunityKey=9c11b007-83b2-4bf2-a08e-74f642c840bc (last\nvisited August 6, 2019).\n 4 For a list of the 25 jurisdictions that have enacted the 2005 version (for some,\n\nrepealing the 1962 version in the process), see Foreign-Country Money Judgments\nRecognition Act, Uniform Law Commission, https://www.uniformlaws.org/\ncommittees/community-home?CommunityKey=ae280c30-094a-4d8f-b722-8dcd614a8f3e\n(last visited August 6, 2019).\n 3\n\f Case: 18-50348 Document: 00515078514 Page: 4 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\njudgments that are final and conclusive where rendered “enforceable” in the\nrelevant state court just like another state’s judgment would be. Unif. Foreign-\nCountry Money Judgments Recognition Act § 7(2), U.L.A. (2005) (West); Unif.\nForeign Money Judgment Act § 3, U.L.A. (1962) (West). Although these acts\npresumptively treat properly filed foreign judgments as enforceable,\nexceptional circumstances can rebut that presumption. Some of those\nexceptions are mandatory, others discretionary. If the rendering court did not\nhave personal jurisdiction over the judgment debtor, for instance, the state\ncourt (or federal court sitting in diversity) cannot recognize the foreign\njudgment. 2005 Unif. Act § 4(b)(2); 1962 Unif. Act § 4(a)(2). Other grounds for\nnonrecognition, like fraud in obtaining the judgment, instead give the\nAmerican court the option of not recognizing the foreign judgment. 2005 Unif.\nAct § 4(c)(2); 1962 Unif. Act § 4(b)(2).\n So, in 2013, Maghreb came to the United States seeking recognition of\nthe Moroccan judgment. 5 DeJoria resisted in several ways. At the time, Texas\nhad adopted (with slight modification) the 1962 Uniform Recognition Act. See\nTEX. CIV. PRAC. & REM. CODE § 36.001–08 (Vernon’s 2015). That law included\nten nonrecognition grounds. DeJoria pressed seven of them. The district court\nfocused on only one avenue to nonrecognition. It determined that the Moroccan\njudgment was “rendered under a system that does not provide impartial\ntribunals or procedures compatible with the requirements of due process of\nlaw.” Id. § 36.005(a)(1). Because this was a mandatory nonrecognition ground,\n\n\n\n\n 5 The procedural history is a bit more complicated. DeJoria, perhaps believing the\nbest defense is a good offense, went to Texas court first, seeking preemptive nonrecognition\nof the Moroccan judgment and an antisuit injunction. Maghreb removed to federal court and\ncounterclaimed for recognition. But DeJoria eventually dismissed his affirmative claims,\nconforming this action to the more typical posture—judgment creditor seeking recognition,\njudgment debtor resisting.\n 4\n\f Case: 18-50348 Document: 00515078514 Page: 5 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nthe district court refused to recognize the Moroccan judgment and dismissed\nthe case.\n We reversed. DeJoria, 804 F.3d at 389. The panel held that, under\nTexas’s version of the 1962 Uniform Recognition Act, DeJoria could not obtain\nnonrecognition by showing he was denied due process or impartial tribunals in\nhis case, but instead had the much greater burden of showing that Morocco’s\nlegal “system as a whole” was so deficient that no Texas court should ever\nrecognize a Moroccan judgment. Id. at 381. 6 And although the prior panel’s\ninquiry focused on whether the Moroccan judicial system could provide\nAmericans fair proceedings, it remarked that “the record does not establish\nthat the King actually exerted any improper influence on the Moroccan court\nin this case.” Id. at 382 n.9. The case was remanded.\n Back before the district court, and in front of the magistrate judge to\nwhom the matter was referred, the parties immediately began to squabble over\nthe scope of that court’s power on remand. 7 DeJoria was adamant that he\nshould still be allowed to push for nonrecognition on grounds not addressed by\nthe Fifth Circuit. Maghreb disagreed and moved for entry of judgment. The\ndistrict court denied Maghreb’s motion, agreeing with DeJoria that he could\nstill attempt to establish other grounds for nonrecognition.\n While the sound and fury continued apace in the trial court, a second\nfront in this dispute opened, this time in the Texas legislature. With the\ntestimonial aid of one of DeJoria’s lawyers, the 2017 legislative session was\nconsidering updating the Recognition Act to the 2005 uniform act. Among\nother changes, the new law would add two discretionary grounds for\n\n\n 6 That panel also rejected another two of DeJoria’s arguments for nonrecognition—\nthat Morocco would not reciprocally recognize a Texas judgment and that the Moroccan court\ndid not have personal jurisdiction over DeJoria. DeJoria, 804 F.3d at 384–89.\n 7 Because the district court adopted the magistrate’s recommendations in all relevant\n\nrespects, we will describe the postremand rulings as district court rulings.\n 5\n\f Case: 18-50348 Document: 00515078514 Page: 6 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nnonrecognition: a court would be able to deny recognition if “the judgment was\nrendered in circumstances that raise substantial doubt about the integrity of\nthe rendering court with respect to the judgment” or, more importantly in this\ncase, if “the specific proceeding in the foreign court leading to the judgment\nwas not compatible with the requirements of due process of law.” 2005 Unif.\nAct § 4(c)(7)–(8).\n These substantive differences between the old and new law were not the\nfocus of hearings on the bill. Instead, a change not found in the new Uniform\nLaw nor in the versions of that law passed by other states drew the most\nattention. The drafters had made the law retroactive to pending cases. The\nonly pending case the legislators were told about was this one. Despite the\nconcern of at least one legislator that the law was going to change the outcome\nof this case midstream, the law was adopted with the retroactivity provision.\n2017 Tex. Sess. Law Serv. Ch. 390 (S.B. 944) (Vernon’s), codified at TEX. CIV.\nPRAC. & REM. CODE § 36A.001–11.\n With his legislative victory in hand, DeJoria returned to the district\ncourt to inform it of the change in Texas law. Although he argued that\nnonrecognition was warranted on multiple grounds, the district court again\nfocused on only one. Finding the new law did not run afoul of the Texas\nConstitution’s prohibition of retroactive laws, this time the court granted\nDeJoria’s motion for nonrecognition after determining that the specific\nproceedings leading to the judgment against him were incompatible with the\nrequirements of due process. 8 To reach that decision, the district court\nreadopted many of the case-specific findings underlying the order this court\n\n\n 8 The court declined to reach DeJoria’s other arguments for nonrecognition: that 1) the\nMoroccan judgment was rendered under circumstances that raise substantial doubt about\nthe integrity of the rendering court, 2) the Moroccan judgment was repugnant to Texas public\npolicy, and 3) recognition of the judgment would violate the Due Process Clause of the\nFourteenth Amendment.\n 6\n\f Case: 18-50348 Document: 00515078514 Page: 7 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nhad reversed. But it also made new findings: that DeJoria was unable to\nattend the Moroccan proceedings, that he was unable to obtain counsel to\nrepresent him in those proceedings, and that, although the Moroccan court\nrelied on an expert’s opinion to determine damages, that expert lacked\nindependence. The court again dismissed the case. Maghreb again appealed.\n II.\n We have jurisdiction over this case owing to the diversity of the parties,\nso we apply Texas substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78\n(1938). In doing so, we are bound by the decisions of the Supreme Court of\nTexas. Comm’r v. Bosch’s Estate, 387 U.S. 456, 465 (1967). But when no\ndecision of that court directly addresses the case before us, we are forced to\nmake an Erie guess, doing our best to write the opinion the Texas high court\nwould if it had the chance. 9 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir.\n2018).\n We must make such a guess to determine which of the Uniform\nRecognition Acts applies. The Texas Constitution provides that “[n]o bill of\nattainder, ex post facto law, retroactive law, or any law impairing the\nobligation of contracts, shall be made.” Tex. Const. art. I, § 16. Although\nphrased as an absolute prohibition, “[m]ere retroactivity is not sufficient to\n\n\n\n 9 Although neither party asks us to certify this question to the state court, in an\namicus brief the State of Texas suggests we should consider it, especially if we are inclined\nto overturn the statute. We decline to do so because we do not think application of the\nSupreme Court of Texas’s many retroactivity precedents to this statute leaves us with a close\ncall. Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 549 (5th Cir. 1998) (noting that the\n“closeness of the question” and “the existence of sufficient sources of state law” are the most\nimportant factors in deciding to certify (quotation omitted)). Moreover, a case in which a\nforeign corporation is attempting to argue that a state legislature has passed a law as a favor\nto one of its wealthiest citizens seems like the quintessential case for the exercise of diversity\njurisdiction. Cf. 13E Charles Alan Wright et. al, FED. PRAC. & PROC. § 3601 (3d ed. 2019)\n(describing the most common justification for federal diversity jurisdiction as “the fear that\nstate courts would be prejudiced against out-of-state litigants, particularly when opposed by\nan in-stater”).\n 7\n\f Case: 18-50348 Document: 00515078514 Page: 8 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\ninvalidate a statute.” Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d\n126, 139 (Tex. 2010) (quotation omitted). Texas courts have tailored the scope\nof the prohibition to “protect[] settled expectations and prevent[] abuse of\nlegislative power.” Id. Three factors determinine whether a law runs afoul of\nthose objectives: “the nature and strength of the public interest served by the\nstatute as evidenced by the Legislature’s factual findings; the nature of the\nprior right impaired by the statute; and the extent of the impairment.” Id. at\n145. The nature and extent of the interference with a party’s rights loom\nparticularly large. For that reason, “changes in the law that merely affect\nremedies or procedure, or that otherwise have little impact on prior rights, are\nusually not unconstitutionally retroactive.” Id. at 146; see also Univ. of Tex.\nSw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548 (Tex. 2010)\n(“Statutes . . . that do not deprive the parties of a substantive right . . . may be\napplied to cases pending at the time of enactment.”).\n The new law’s limited interference with Maghreb’s legitimate rights\nresolves the question before us. Unlike Robinson—the seminal Texas case on\nretroactivity—this is not a case in which a law that allowed a party’s recovery\nwas changed to “abrogate their claim.” Robinson, 335 S.W.3d at 148. It is not\neven certain that the law as it stood before the adoption of the updated act\nwould have led to recognition of the Moroccan judgment. As we mentioned,\nthe district court agreed to allow DeJoria to press several arguments for\nnonrecognition after this court returned the case to its hands. 10 Because the\npassage of the new act made it unnecessary to address those claims, we do not\n\n\n\n 10 In particular, prior to the update of the law, DeJoria retained the ability to argue\nthat two additional nonrecognition factors applied: that the “cause of action on which the\njudgment is based is repugnant to the public policy” of Texas and that Morocco was a\n“seriously inconvenient forum.” TEX. CIV. PRAC. & REM. CODE §§ 36.005(b)(3) and (6)\n(Vernon’s 2015). Beyond the Recognition Act’s domain, DeJoria was also raising a federal\ndue process challenge to recognition of the Moroccan judgment.\n 8\n\f Case: 18-50348 Document: 00515078514 Page: 9 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nknow how likely they were to succeed. Maghreb’s expectation that it would\nprevail was, in other words, not yet settled. See Union Carbide Corp. v.\nSynatzske, 438 S.W.3d 39, 58 (Tex. 2014) (upholding retroactive application of\na law because the plaintiff’s “recovery was not yet predictable” at the time the\nlaw went into effect).\n The bigger point, though, is that the retroactive law does not abrogate\nMaghreb’s claim. It does not strip Maghreb of the ability to seek recognition\nof the Moroccan judgment. It just gives a district court the ability to deny\nrecognition if it finds the judgment was obtained in proceedings that were\nincompatible with the requirements of due process. So the only right that has\nbeen impinged is the right to automatic recognition of a judgment obtained in\nproceedings that denied the judgment debtor fundamental fairness. To state\nthat “right” is to show why we cannot recognize it, let alone allow its protection\nto sink a state statute. Robinson, 335 S.W.3d at 146 (“[C]ourts must be mindful\nthat statutes are not to be set aside lightly.”). Indeed, the absurdity of lending\na court’s power to the vindication of fundamentally unfair proceedings is why\nthe 2005 Uniform Act recognizes an absence of due process as one of the rare\nsituations when an American court may not recognize a foreign judgment. It\nis also noteworthy that the Supreme Court of Texas has only upheld challenges\nto the retroactive application of a law on four occasions, all of which dealt with\nlaws that revived expired claims or fully extinguished vested rights. Tenet\nHospitals Ltd. v. Rivera, 445 S.W.3d 698, 708 (Tex. 2014) (collecting cases).\nThe updated recognition act does neither.\n We are mindful that the whiff of home cooking also pervades the Texas\nside of this case. There is a deep irony in allowing DeJoria to contend he was\ndenied due process in Morocco when it was his lobbying efforts that changed\nthe rules of the game midway through the proceedings in the United States.\nIndeed, the Supreme Court of Texas has been suspicious of retroactive laws\n 9\n\f Case: 18-50348 Document: 00515078514 Page: 10 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nthat inure to the benefit of only one company or individual. 11 Robinson, 335\nS.W.3d at 149. But in the retroactivity context as in others, “unfair does not\nalways equal unconstitutional.” Id. at 160 (Willett, J. concurring). And it\ncannot be said that a state’s desire to provide immediate protection to the due\nprocess rights of its citizens is not compelling. When balanced against the\nslight imposition on a right of dubious provenance, retroactive application of\nthe updated Recognition Act does not violate the Texas Constitution.\n III.\n A.\n Having decided that Texas’s choice to apply its new Recognition Act to\npending cases was proper, we now must review the district court’s application\nof that law. And to do that we must determine how closely we should scrutinize\nthat court’s work.\n Reciting the standard of review in an appellate opinion is often a rote\nexercise. Not here. Recognizing that the appeal’s outcome largely turns on\nthis question, the parties have spent considerable energy contesting whether\nwe owe deference to certain district court rulings. Maghreb insists that we\nshould review all aspects of the district court’s denial of recognition de novo,\nlikening the inquiry to a review for legal sufficiency. DeJoria counters that we\nshould review the court’s factual findings only for clear error.\n Much of the confusion surrounding the standard of review arises from\nthis case’s odd posture. The district court did not rule on a motion for summary\njudgment or conduct a bench trial, but instead resolved a “motion for\n\n\n\n\n 11 DeJoria points to one other recognition case that was pending at the time the law\nwas passed, In re Carmona, 580 B.R. 690 (Bankr. S.D. Tex. 2018). But the Texas legislature\nwas only made aware of one case that would be affected by the retroactivity provision—this\none.\n\n 10\n\f Case: 18-50348 Document: 00515078514 Page: 11 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nnonrecognition.” That motion is a creature of state law. 12 Regardless of the\nstyling of the motion on which the district court ruled, however, our appellate\nstandard of review is governed by federal law, even in this diversity case. See\nGoodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1040 (5th Cir. 2011); Tax\nTrack Sys. Corp. v. New Investor World, Inc., 478 F.3d 783, 789 (7th Cir. 2007);\nHershon v. Gibraltar Bldg. & Loan Ass’n, Inc., 864 F.2d 848, 852 (D.C. Cir.\n1989). 13\n The prior panel explained that “[w]hether the judgment debtor\nestablished that [a] non-recognition provision[] applies is a question of law\nreviewed de novo.” DeJoria, 804 F.3d at 379. We agree. But the panel had no\ncause to determine the proper standard of review for the factual findings that\nunderpin the district court’s legal decision. After all, the issues in that\nappeal—whether the Moroccan system provides procedures compatible with\ndue process, whether Moroccan law provides a mechanism to reciprocate\nrecognition of Texas judgments, and whether the Moroccan court had personal\njurisdiction over DeJoria—were all legal determinations. See FED. R. CIV. P.\n44.1 (“The court’s determination [of foreign law] must be treated as a ruling on\na question of law.”); In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant\nProduct Liability Litig., 888 F.3d 753, 778 (5th Cir. 2018) (“This court reviews\n[the] district court’s exercise of personal jurisdiction de novo.” (quotation\nomitted)).\n\n\n 12 It is not clear, then, how this type of motion found its way to federal court. In federal\ncourt, the Federal Rules of Civil Procedure should govern how the parties seek and resist\nrecognition of the judgment. See, e.g., Sw. Livestock and Trucking Co., Inc. v. Ramon, 169\nF.3d 317, 321 & n.3 (5th Cir. 1999) (disposing of the recognition issue on a federal motion for\nsummary judgment). Neither party, however, has objected to the use of state procedure in\nthis federal action, leaving this panel in somewhat uncharted territory.\n 13 If the Recognition Act demanded a particular standard of review for “manifestly\n\nsubstantive” ends, that might be a different story. See Gasperini v. Ctr. for Humanities, Inc.,\n518 U.S. 415, 429 (1996) (holding that state law governs the trial court standard for\ndetermining whether a verdict is excessive). It does not.\n 11\n\f Case: 18-50348 Document: 00515078514 Page: 12 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\n But it is a venerable principle that a district court’s factual findings are\nreversed only if clearly erroneous. FED. R. CIV. P. 52(a)(6) (standard for bench\ntrials); see also Steven Alan Childress & Martha S. Davis, 1 FEDERAL\nSTANDARDS OF REVIEW § 2.03[8] 2-32–33 (4th ed. 2010) (explaining that\n“[m]any courts . . . have assumed that [the] clearly erroneous rule applies to\nfindings made on motions in addition to trial findings”). Even when an\nappellate court considers a legal question de novo, that plenary power of review\ndoes not extend to subsidiary factual findings. See Allstate Ins. Co. v. Abbott,\n495 F.3d 151, 160 (5th Cir. 2007) (“[S]ubsidiary facts are reviewed for clear\nerror.”) (citing Maine v. Taylor, 477 U.S. 131, 144–45 (1986)). To take just one\nexample, jurisdiction is a legal question. But the facts that underlie a\njurisdictional determination are still reviewed only for clear error. See, e.g.,\nid.; DePuy Orthopaedics, 888 F.3d at 778 (applying clear error review to\n“underlying jurisdictional findings of fact” and de novo review to ultimate\npersonal jurisdiction holding (quotation omitted)); Pederson v. La. State Univ.,\n213 F.3d 858, 869 (5th Cir. 2000) (“If the district court resolves any factual\ndisputes in making its jurisdictional findings,” those resolutions are\noverturned only if “clearly erroneous.” (quotation omitted)). The same must be\ntrue for factfinding that underpins the legal conclusion of nonrecognition.\n Appellate court deference to district court factfinding is grounded in\nconcerns of both expertise and efficiency. Maghreb points out that one of the\nstrongest justifications for deference—the trial court’s ability to assess the\ncredibility of live testimony, Anderson v. City of Bessemer City, 470 U.S. 564,\n575 (1985)—is not present because the testimony of the foreign witnesses was\npresented on paper. But we defer even when the trial court’s findings are\n“based . . . on physical or documentary evidence or inferences from other facts.”\nId. at 574. That is because “[t]he trial judge’s major role is the determination\nof fact, and with experience in fulfilling that role comes expertise.” Id. Clear\n 12\n\f Case: 18-50348 Document: 00515078514 Page: 13 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nerror review also promotes judicial efficiency. Id. at 574–75 (“Duplication of\nthe trial judge’s efforts in the court of appeals would very likely contribute only\nnegligibly to the accuracy of fact determination at a huge cost in diversion of\njudicial resources.”). District court judges, who do the lion’s share of the work\nin our federal system, do not dig through voluminous records only to have\ncourts like this one restart the factfinding from scratch. Instead of redoing\ntheir work, we defer to their findings so long as they take a permissible view\nof the evidence. Id. at 574.\n Although the standard of review is a federal issue, like the prior panel\nwe “look to Texas law” governing recognition to see if anything counsels in a\ndifferent direction. 14 DeJoria, 804 F.3d at 379. Nothing does. We see no Texas\nrecognition case that conflicts with the principles of federal appellate review\noutlined above. When a trial court is presented with conflicting evidence in\nrecognition proceedings, Texas courts “defer to the trial court’s . . . resolution\nof those conflicts.” Mariles v. Hector, No. 05-16-00814-CV, 2018 WL 3723104\n*6 (Tex. App.—Dallas Aug. 6, 2018, pet. denied). Maghreb cites some Texas\ncases that explain what we have acknowledged: that review of the district\ncourt’s ultimate determination of the application of a nonrecognition factor\n\n\n 14 As we have explained, the proper standard of appellate review is a question of\nfederal law. We do not read this court’s 2015 opinion as out of step with that conclusion. It\nmay be that the prior panel looked to Texas law only to ascertain whether recognition was a\nlegal or factual question. See Childress & Davis, supra § 2.03[7] 2-32 n.158 (noting that,\ndespite application of federal standards of review in diversity cases, “[u]se of state law-fact\ncharacterization may be more defensible” as that question borders on the substantive). But\nto the extent the prior panel’s opinion could be read to suggest that state law controls the\napplicable standard of review in federal court, it announced principles with respect to “the\ndistrict court’s recognition decision.” DeJoria, 804 F.3d at 379. Again, we answer a different\nquestion—what level of scrutiny should we apply to the findings of fact subsidiary to that\nultimate legal conclusion? That question, at least, is controlled by federal law.\n In any event, we have perused Texas caselaw only out of an abundance of caution. It\nis less useful this time around—no Texas case has yet analyzed the new factbound\nnonrecognition factors added by the updated act.\n\n 13\n\f Case: 18-50348 Document: 00515078514 Page: 14 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nshould be de novo. See, e.g., Sanchez v. Palau, 317 S.W.3d 780, 785 (Tex.\nApp.—Houston [1st Dist.] 2010, pet. denied) (“[W]e review de novo a trial\ncourt’s ruling on recognition of a foreign country judgment.”); The Courage Co.,\nL.L.C. v. The Chemshare Corp., 93 S.W.3d 323, 331 (Tex. App.—Houston [14th\nDist.] 2002, no pet.) (same). 15 But they have pointed to no case that instructs\na court of appeals to start on a blank slate in determining the facts. That is\nnot surprising. Consistent with the standard practice, Texas courts also\ngenerally defer to trial court factfinding. In re I.I.G.T., 412 S.W.3d 803, 806\n(Tex. App.—Dallas 2013, no pet.) (explaining that an appellate court should\nnot normally “disturb the [trial] court’s resolution of evidentiary conflicts that\nturn on . . . the weight of the evidence”). We thus can disturb the district\ncourt’s findings only if they are not “plausible in light of the record viewed in\nits entirety.” Anderson, 470 U.S. at 574.\n B.\n Maghreb’s primary argument on appeal—that DeJoria lost his\nopportunity to complain about the Moroccan proceedings because he failed to\nparticipate in them—must overcome this deference to the district court’s\nfactfinding. Maghreb notes that we have “flatly reject[ed]” the due process\nobjections of judgment debtors who were “given, and waived, the opportunity\nof making [an] adequate presentation” in the foreign tribunal. Society of\nLloyd’s v. Turner, 303 F.3d 325, 331 n.20 (5th Cir. 2002) (quotation omitted);\n\n\n 15 Varying procedural postures and a lack of clarity with respect to whether the\nstandard of review depends on the nonrecognition factor at issue further frustrate the search\nfor coherence on this question. See Ramon, 169 F.3d at 318 (analyzing recognition decision\non summary judgment, which is always reviewed de novo); Banque Libanaise Pour Le\nCommerce v. Khreich, 915 F.2d 1000, 1004 (5th Cir. 1990) (reviewing for abuse of discretion\na trial court’s choice to apply a discretionary nonrecognition ground, like the ground at issue\nin this case); Dart v. Balaam, 953 S.W.2d 478, 482–83 (Tex. App.—Fort Worth 1997, no pet.)\n(reviewing for abuse of discretion the trial court’s determination whether Australia was an\ninconvenient forum). The important point for this appeal is that we have seen no appellate\ncourt in a recognition dispute engage in de novo factfinding.\n 14\n\f Case: 18-50348 Document: 00515078514 Page: 15 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nsee also Dart, 953 S.W.2d at 480 (“Grounds for nonrecognition may be waived\nif a party had the right to assert that ground as an objection or defense in the\nforeign country but failed to do so.”).\n But our limited authority when it comes to facts makes short work of\nthat argument. The district court made three major findings to support\nnonrecognition: 1) DeJoria’s fear for his safety should he return to Morocco to\nlitigate was credible and arose directly from his involvement in the Moroccan\nlawsuit because DeJoria’s position in the Moroccan lawsuit was directly\nadverse to the interests of the royal family, he was unable to retain a lawyer\nto appear for him in the initial proceedings or to bring an appeal although the\ndetermination of damages was based on expert opinion, the Moroccan court\nmanipulated that process when it went through four experts before finding one\nthat would deliver its preferred recommendation. Taken together, the first and\nsecond findings mean that DeJoria was never “given . . . the opportunity of\nmaking [an] adequate presentation” in Moroccan court and the third means\nhis case did not otherwise receive fair treatment. Turner, 303 F.3d at 331 n.20.\nSo unless those findings were clearly erroneous, Maghreb’s “waiver” argument\nfails.\n To be sure, Maghreb points to substantial evidence that could support\ncontrary findings. Its problem is that there is evidence on both sides of these\ndisputes. Even if Maghreb can convince us that its evidence is stronger, that\nis not enough to establish that the district court’s crediting of DeJoria’s\nevidence is implausible. Theriot v. Par. of Jefferson, 185 F.3d 477, 490 (5th\nCir. 1999) (“Where the evidence can support findings either way, a choice by\nthe trial judge between two permissible views of the weight of the evidence is\nnot clearly erroneous.”)\n Take for instance the finding that DeJoria credibly feared for his life and\nso was unable to attend the Moroccan proceedings in person. Michael Gustin,\n 15\n\f Case: 18-50348 Document: 00515078514 Page: 16 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nDeJoria’s business partner, described receiving a death threat and explained\nthat it was directed at both him and DeJoria. DeJoria himself declared that\nGustin communicated that threat to him and that he believed it was credible.\nAnd the record contains evidence that their unsuccessful attempts to obtain\nrepresentation in Morocco may have only heightened their fear. A French\nattorney with some Moroccan experience told them that it was not only unsafe\nfor DeJoria and Gustin to return to Morocco, but it would be “unsafe and\nunwise for any lawyer” or “any sane person,” for that matter, to participate in\na case that so closely touched the royal family’s interests. Nearly a decade\nlater, that attorney repeated his concerns. The general counsel for Skidmore,\nDeJoria’s company that spearheaded the Moroccan project, also says he was\ntold to stay out of the country by a Moroccan attorney who had been hired to\nhandle various clerical tasks as the Moroccan lawsuit proceeded. She warned\nthat “any appearance by Skidmore or any personal representative of Skidmore\nin the Moroccan lawsuit would be dangerous.”\n Of course, these assertions all come from individuals who may have an\naxe to grind in this case. And we are not told much about the circumstances\nor content of the death threat because Gustin maintains that he “cannot reveal\n[the] details . . . without compromising the safety of innocent people still in\nMorocco.” Bias and lack of detail are classic impeachment evidence. But\nimpeachment usually goes to the weight of the evidence. Arguing about the\nweight of the evidence is not the terrain an appellant wants to be on. See La\nDay v. Catalyst Tech., Inc., 302 F.3d 474, 480 (5th Cir. 2002) (noting that it is\nthe factfinder who “ultimately . . . decide[s] which side has the greater weight\nof the evidence”).\n Nor does Maghreb get over the clearly-erroneous hurdle because it\npresented testimony that DeJoria could have appeared and obtained counsel\nin the Moroccan litigation. Choosing between conflicting testimony is the\n 16\n\f Case: 18-50348 Document: 00515078514 Page: 17 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nprovince of the factfinder. See Anderson, 470 U.S. at 575 (concluding it “can\nvirtually never be clear error” when a trial court “credit[s] the testimony of one\nof two or more witnesses, each of whom has told a coherent and facially\nplausible story that is not contradicted by extrinsic evidence”). And while\nMaghreb emphasizes the testimony of its expert on Moroccan law, expert\ntestimony does not automatically trump lay testimony. Breland v. United\nStates, 372 F.2d 629, 633 (5th Cir. 1967) (“[L]ay testimony can be sufficient to\nsatisfy [a party’s] burden even though there is expert testimony to the\ncontrary.”); see also FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS 3.5 (Civil)\n(2014) (explaining that, for expert witness testimony, “[a]s with any other\nwitness, it is up to [the factfinder] to decide whether to rely on it”).\n To undo factual determinations on appeal, Maghreb must convince us\nnot that it has the more compelling evidence, but that the other side’s\ntestimony is not “plausible.” Anderson, 470 U.S. at 574. Maghreb’s expert\nwitness, a Moroccan attorney, contends that DeJoria’s worries were “baseless\nand reflect[] his poor understanding of Morocco.” And they also point to several\ninstances in which Moroccan courts have ruled against royal interests. But\nthat a trier of fact could plausibly infer that the death threat was fabricated\ndoes not mean it is implausible to find that the threat was real. Id. at 574.\n The same may be said for the other two key findings. For instance,\nalthough DeJoria was able to retain Moroccan attorneys as experts in\nproceedings stateside after the Moroccan trial court handed down its\njudgment, there was evidence that two of his attempts to obtain representation\nin the Moroccan proceedings were rebuffed. And though there was no smoking\ngun, it was not clear error for the district court to conclude that the Moroccan\ncourt went fishing for an expert who would determine DeJoria and his partner\nhad caused Maghreb substantial damages. After all, the expert who found\nthose damages was the fifth appointed by the Moroccan court—the first three\n 17\n\f Case: 18-50348 Document: 00515078514 Page: 18 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\n“concluded that they could not provide any firm opinion on the matter” and the\nfourth was replaced for reasons that remain unclear.\n Although the district court’s assessment of the evidence may be subject\nto vigorous debate, it is the district court’s job to resolve evidentiary disputes,\nnot ours. Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d\n1031, 1036 (5th Cir. 2015) (explaining that, even when “there are two\npermissible views of the evidence,” the trial court’s choice between them is\ntypically owed “great deference”). Maghreb has not shown clear error. 16\n C.\n Perhaps realizing that its argument founders on the district court’s\ndifficult-to-undo findings, Maghreb’s primary challenge to those findings is\nthat they should not have been made in the first place. Each of the pertinent\nfindings, it argues, was precluded by the prior panel’s opinion.\n Under the law-of-the-case doctrine—and its corollary, the mandate\nrule—when a district court receives a case on remand, it may not reexamine\nthe legal or factual determinations of this court or otherwise disobey our\nmandate. See Tollett v. City of Kemah, 285 F.3d 357, 363–64 (5th Cir. 2002).\nThe reach of those related doctrines extends only to matters decided expressly\nor by necessary implication. In re Felt, 255 F.3d 220, 225 (5th Cir. 2001). And\nan issue is tacitly decided only when its disposition is a “necessary predicate[]\nto the ability to address the issue or issues specifically discussed” in the\nappellate court’s opinion. Id.\n\n\n\n\n 16It is worth noting that the three trial judges who handled aspects of this case all\ngenerally found DeJoria’s evidence about what happened in Morocco more persuasive than\nMaghreb’s. Three trial judges have reviewed the case because this appeal comes from\nfindings of a magistrate judge, adopted by the district judge, and the earlier appeal came\nfrom findings of a different district judge. Although some of the findings in this phase of the\ncase are new, they rely on much of the same testimony the district court relied on the first\ntime around.\n 18\n\f Case: 18-50348 Document: 00515078514 Page: 19 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\n The prior panel’s opinion did not preclude the findings the district court\nmade on remand. First and foremost, the prior appeal was decided under a\ndifferent law. United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)\n(describing an exception to the law-of-the-case doctrine when “there has been\nan intervening change of law by a controlling authority”). That law did not\nrequire the prior panel to determine whether DeJoria’s “specific proceeding[s]”\nwere “compatible with the requirements of due process of law.” TEX. CIV. PRAC.\n& REM. CODE § 36A.004(c)(8). So that panel had no cause to determine\nwhether DeJoria could in fact safely return to Morocco or whether DeJoria\ncould in fact retain representation. In determining whether the Moroccan legal\nsystem made fair proceedings impossible, whether Moroccan courts would\nreciprocate recognition, and whether the Moroccan commercial court had\npersonal jurisdiction over DeJoria, the prior panel’s analysis was focused on\nlegal questions. The fact-intensive inquiry demanded by Texas’s updated\nRecognition Act put the case on a new playing field.\n But even if the district court were operating in the same legal landscape,\nnothing in the prior panel’s opinion forecloses the district court’s findings. The\npanel held that the Moroccan court’s exercise of jurisdiction over DeJoria did\nnot violate traditional notions of “fair play and substantial justice” because,\ndespite any burden litigating in Morocco might place on DeJoria, “Moroccan\ncourts do not require that the defendant appear personally, and DeJoria could\nhave litigated entirely through counsel without returning to Morocco.”\nDeJoria, 804 F.3d at 389. And, relying on testimony from a Moroccan attorney\nacting as Maghreb’s expert, the court pointed out that “it is ‘not at all\nuncommon’ for Moroccan attorneys to represent unpopular figures in Moroccan\ncourts.” Id. at 383. But these general statements about usual Moroccan\npractices did not address whether DeJoria could have found a willing attorney\n\n\n 19\n\f Case: 18-50348 Document: 00515078514 Page: 20 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nin Morocco in his high-profile case. 17 Nor does it avail Maghreb to draw our\nattention to the previous panel’s aside that, “[a]lthough our inquiry focuses on\nMorocco’s judicial system, we also observe that the record does not establish\nthat the King actually exerted any improper influence on the Moroccan court\nin this case.” Id. at 382 n.9 (emphasis in original). For one, the comment is\nadmittedly dicta—the footnote could have been erased from the opinion\nwithout disrupting its systemwide holding in the slightest. Pegues v.\nMorehouse Parish Sch. Bd., 706 F.2d 735, 738 (5th Cir. 1983) (explaining that\nlaw of the case does not apply to dicta). And in any case, the question under\nthe Texas statute is not whether the King actively undermined the\nproceedings, but whether DeJoria was afforded a fundamentally fair hearing.\nThe prior panel’s general observations did not foreclose the more searching\nfactual inquiry now required under Texas law. 18\n D.\n Our holding that the district court did not clearly err in its factfinding\nnor adopt those findings in the face of a contrary mandate from this court\nleaves us little left to do. Maghreb does not dispute the nonrecognition\nconclusion if we uphold the findings that DeJoria could neither appear\npersonally nor find a lawyer to appear for him. That is a sensible stance.\n\n\n 17 And nothing in the prior panel’s opinion foreclosed the district court’s finding that\nDeJoria could not safely return to Morocco. Indeed, the prior panel did not even mention the\nalleged threat on DeJoria’s life, let alone determine its credibility.\n 18 Maghreb also argues at some length about the propriety of a host of other findings\n\nthat the magistrate made by readopting the findings made before the first appeal. For\nreasons similar to those discussed above, we doubt there is much to Maghreb’s argument that\nthose readopted findings were barred by the law of the case. Nor do we believe its argument\nthat this court’s 2015 reversal rendered those factual findings “null and void” holds much\nwater. In many other contexts, a district court will readopt its findings without fanfare when\nan appeals court returns the case after locating a legal error. See, e.g., Chemtech Royalty\nAssocs., L.P. v. United States, 823 F.3d 282, 287–88 (5th Cir. 2016); United States v. Ellis,\n201 F. App’x 170 (4th Cir. 2006) (per curiam). But because we believe the new findings made\nby the district court are sufficient to justify its nonrecognition decision, we see no need to\nexplore this issue further.\n 20\n\f Case: 18-50348 Document: 00515078514 Page: 21 Date Filed: 08/15/2019\n\n\n\n No. 18-50348\nRecognition of a foreign-country judgment does not require the foreign court to\n“comply with the traditional rigors of American due process.” Turner, 303 F.3d\nat 330. But the opportunity to present one’s case is no minor twist or turn of\nmodern due process jurisprudence: “The fundamental requirement of due\nprocess is the opportunity to be heard at a meaningful time and in a\nmeaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)\n(quotation omitted). In light of the facts as found by the district court, it\nproperly determined that DeJoria was denied due process in Morocco. The\ndistrict court thus had and properly exercised discretion to deny recognition to\nthe Moroccan judgment. 19\n * * *\n So despite the seeming complexity of this case—royal intrigue, a foreign\nproceeding, almost a billion dirhams at stake—it ends up being resolved on one\nof the most basic principles of appellate law: deference to the factfinder. The\njudgment is AFFIRMED.\n\n\n\n\n 19The parties also contest whether recognition should be denied because the Moroccan\njudgment is repugnant to public policy or because failing to do so would violate the\nFourteenth Amendment’s due process guarantee. Because we affirm the district court’s\nnonrecognition decision on another ground, there is no need to discuss those disputes.\n 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: John Paul DEJORIA, Plaintiff-Appellee v. MAGHREB PETROLEUM EXPLORATION, S.A. ; Mideast Fund for Morocco, Limited, Defendants-Appellants\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50348 Document: 00515078514 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n\\n No. 18-50348\\n Fifth Circuit\\n\\n FILED\\n August 15, 2019\\n\\nJOHN PAUL DEJORIA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\nMAGHREB PETROLEUM EXPLORATION, S.A.; MIDEAST FUND FOR\\nMOROCCO, LIMITED,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n In 1999, philanthropist, environmental activist, and haircare and liquor\\ntycoon John Paul DeJoria was attempting to achieve yet another title: oil\\nmagnate. It did not go well. What started as a project that promised to provide\\nMorocco with decades of energy independence ended with a Moroccan court’s\\nlevying a judgment north of $100 million against DeJoria and his business\\npartner. Whether Texas should recognize that foreign judgment is now the\\ncenterpiece of this decades-long dispute. In fact, proving that it is often harder\\nto collect a judgment than win one, this is the second time the question of the\\njudgment’s validity has come before us. This time around we decide whether\\n\\f Case: 18-50348 Document: 00515078514 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nan interim change in the Texas recognition law violates the state’s\\nconstitutional ban on retroactive laws. If not, we must determine whether the\\ndistrict court properly followed this court’s 2015 mandate and whether it\\nproperly applied the new law.\\n I.\\n The facts of this case are littered across the pages of the Federal\\nReporter. See DeJoria v. Maghreb Petroleum Expl., S.A., 804 F.3d 373 (5th\\nCir. 2015); Skidmore Energy, Inc. v. Maghreb Petroleum Expl., S.A., 337 F.\\nApp’x 706 (9th Cir. 2009); Skidmore Energy, Inc. v. KPMG, 455 F.3d 564 (5th\\nCir. 2006). Because this court has already described the background of this\\ncorner of the dispute, we will do our best not to spill unnecessary ink. See\\nDeJoria, 804 F.3d at 377–78. The winding path the case followed after our\\ncourt’s 2015 remand will spill enough as it is. For now, suffice it to say that in\\n1999 DeJoria and his business partners started Lone Star Energy Corporation\\nin Morocco with the help of King Mohammed VI’s first cousin. The enterprise\\nhoped to discover oil reserves in Northeastern Morocco. The prospects looked\\ngood—so good that the King took to Moroccan airwaves to announce that the\\ncountry would soon be in possession of “copious and high-quality” oil that\\nwould allow Morocco to be self-sufficient for 30 years. The King’s\\nannouncement made the Moroccan stock market jump more than five percent\\nin anticipation of the expected riches.\\n But when the promised reserves did not materialize, the project quickly\\nsoured. DeJoria and his business partner were forced off Lone Star’s board,\\nand, fearing for their lives because of an alleged death threat, fled Morocco,\\nnever to return.\\n Not long after their ouster, DeJoria and his associates were sued in\\nMoroccan commercial court by Lone Star’s new management (now called\\nMaghreb Petroleum Exploration, S.A.) and its major investor, Mideast Fund\\n 2\\n\\f Case: 18-50348 Document: 00515078514 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nfor Morocco. Maghreb, the term we will use to collectively refer to those two\\nentities, alleged that DeJoria and his partners mismanaged Lone Star and\\nfraudulently induced investment in the doomed oil project. Seven years later,\\nthe Moroccan court returned a large judgment for Maghreb. It dismissed\\nclaims against five of the seven defendants, placing the blame—and the bill for\\n969,832,062.22 Moroccan dirhams 1—squarely on DeJoria and his partner.\\n Before going further, a little bit about the legal backdrop is helpful. In\\norder to collect its winnings from DeJoria’s assets in the United States,\\nMaghreb must convince an American court to recognize and enforce the\\nMoroccan judgement. 2 Recognition of foreign-country judgments is a matter\\nof state law and was once mostly governed by principles of comity. See Hilton\\nv. Guyot, 159 U.S. 113, 163–64, 180–81 (1895). In some jurisdictions, comity\\nis still the rule. See, e.g., Kwongyuen Hangkee Co., Ltd. v. Starr Fireworks,\\nInc., 634 N.W.2d 95, 96 (S.D. 2001). But most states have codified their\\nrecognition standards and procedures by enacting the 1962 Uniform Foreign\\nMoney Judgments Recognition Act 3 or its 2005 successor, the Uniform Foreign-\\nCountry Money Judgments Recognition Act. 4 Both acts make foreign\\n\\n\\n 1 Because Maghreb has yet to secure recognition of its judgment, the district court has\\nnot calculated how much it is worth in U.S. dollars. But the parties put the value at around\\n$123 million.\\n 2 Recognition is different from enforcement, but the former is necessary for the latter.\\n\\nSee Yuliya Zeynalova, The Law on Recognition and Enforcement of Foreign Judgments: Is It\\nBroken and How Do We Fix It?, 31 BERKELEY J. INT’L L. 150, 155 (2013) (describing\\nrecognition as akin to domesticating the judgement and enforcement as enlisting the courts\\nand law enforcement to aid in collection). Only recognition is at issue in this case.\\n 3 For a list of the 34 jurisdictions that have enacted the 1962 version, see Foreign\\n\\nMoney Judgments Act, Uniform Law Commission, https://www.uniformlaws.org/\\ncommittees/community-home?CommunityKey=9c11b007-83b2-4bf2-a08e-74f642c840bc (last\\nvisited August 6, 2019).\\n 4 For a list of the 25 jurisdictions that have enacted the 2005 version (for some,\\n\\nrepealing the 1962 version in the process), see Foreign-Country Money Judgments\\nRecognition Act, Uniform Law Commission, https://www.uniformlaws.org/\\ncommittees/community-home?CommunityKey=ae280c30-094a-4d8f-b722-8dcd614a8f3e\\n(last visited August 6, 2019).\\n 3\\n\\f Case: 18-50348 Document: 00515078514 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\njudgments that are final and conclusive where rendered “enforceable” in the\\nrelevant state court just like another state’s judgment would be. Unif. Foreign-\\nCountry Money Judgments Recognition Act § 7(2), U.L.A. (2005) (West); Unif.\\nForeign Money Judgment Act § 3, U.L.A. (1962) (West). Although these acts\\npresumptively treat properly filed foreign judgments as enforceable,\\nexceptional circumstances can rebut that presumption. Some of those\\nexceptions are mandatory, others discretionary. If the rendering court did not\\nhave personal jurisdiction over the judgment debtor, for instance, the state\\ncourt (or federal court sitting in diversity) cannot recognize the foreign\\njudgment. 2005 Unif. Act § 4(b)(2); 1962 Unif. Act § 4(a)(2). Other grounds for\\nnonrecognition, like fraud in obtaining the judgment, instead give the\\nAmerican court the option of not recognizing the foreign judgment. 2005 Unif.\\nAct § 4(c)(2); 1962 Unif. Act § 4(b)(2).\\n So, in 2013, Maghreb came to the United States seeking recognition of\\nthe Moroccan judgment. 5 DeJoria resisted in several ways. At the time, Texas\\nhad adopted (with slight modification) the 1962 Uniform Recognition Act. See\\nTEX. CIV. PRAC. & REM. CODE § 36.001–08 (Vernon’s 2015). That law included\\nten nonrecognition grounds. DeJoria pressed seven of them. The district court\\nfocused on only one avenue to nonrecognition. It determined that the Moroccan\\njudgment was “rendered under a system that does not provide impartial\\ntribunals or procedures compatible with the requirements of due process of\\nlaw.” Id. § 36.005(a)(1). Because this was a mandatory nonrecognition ground,\\n\\n\\n\\n\\n 5 The procedural history is a bit more complicated. DeJoria, perhaps believing the\\nbest defense is a good offense, went to Texas court first, seeking preemptive nonrecognition\\nof the Moroccan judgment and an antisuit injunction. Maghreb removed to federal court and\\ncounterclaimed for recognition. But DeJoria eventually dismissed his affirmative claims,\\nconforming this action to the more typical posture—judgment creditor seeking recognition,\\njudgment debtor resisting.\\n 4\\n\\f Case: 18-50348 Document: 00515078514 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nthe district court refused to recognize the Moroccan judgment and dismissed\\nthe case.\\n We reversed. DeJoria, 804 F.3d at 389. The panel held that, under\\nTexas’s version of the 1962 Uniform Recognition Act, DeJoria could not obtain\\nnonrecognition by showing he was denied due process or impartial tribunals in\\nhis case, but instead had the much greater burden of showing that Morocco’s\\nlegal “system as a whole” was so deficient that no Texas court should ever\\nrecognize a Moroccan judgment. Id. at 381. 6 And although the prior panel’s\\ninquiry focused on whether the Moroccan judicial system could provide\\nAmericans fair proceedings, it remarked that “the record does not establish\\nthat the King actually exerted any improper influence on the Moroccan court\\nin this case.” Id. at 382 n.9. The case was remanded.\\n Back before the district court, and in front of the magistrate judge to\\nwhom the matter was referred, the parties immediately began to squabble over\\nthe scope of that court’s power on remand. 7 DeJoria was adamant that he\\nshould still be allowed to push for nonrecognition on grounds not addressed by\\nthe Fifth Circuit. Maghreb disagreed and moved for entry of judgment. The\\ndistrict court denied Maghreb’s motion, agreeing with DeJoria that he could\\nstill attempt to establish other grounds for nonrecognition.\\n While the sound and fury continued apace in the trial court, a second\\nfront in this dispute opened, this time in the Texas legislature. With the\\ntestimonial aid of one of DeJoria’s lawyers, the 2017 legislative session was\\nconsidering updating the Recognition Act to the 2005 uniform act. Among\\nother changes, the new law would add two discretionary grounds for\\n\\n\\n 6 That panel also rejected another two of DeJoria’s arguments for nonrecognition—\\nthat Morocco would not reciprocally recognize a Texas judgment and that the Moroccan court\\ndid not have personal jurisdiction over DeJoria. DeJoria, 804 F.3d at 384–89.\\n 7 Because the district court adopted the magistrate’s recommendations in all relevant\\n\\nrespects, we will describe the postremand rulings as district court rulings.\\n 5\\n\\f Case: 18-50348 Document: 00515078514 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nnonrecognition: a court would be able to deny recognition if “the judgment was\\nrendered in circumstances that raise substantial doubt about the integrity of\\nthe rendering court with respect to the judgment” or, more importantly in this\\ncase, if “the specific proceeding in the foreign court leading to the judgment\\nwas not compatible with the requirements of due process of law.” 2005 Unif.\\nAct § 4(c)(7)–(8).\\n These substantive differences between the old and new law were not the\\nfocus of hearings on the bill. Instead, a change not found in the new Uniform\\nLaw nor in the versions of that law passed by other states drew the most\\nattention. The drafters had made the law retroactive to pending cases. The\\nonly pending case the legislators were told about was this one. Despite the\\nconcern of at least one legislator that the law was going to change the outcome\\nof this case midstream, the law was adopted with the retroactivity provision.\\n2017 Tex. Sess. Law Serv. Ch. 390 (S.B. 944) (Vernon’s), codified at TEX. CIV.\\nPRAC. & REM. CODE § 36A.001–11.\\n With his legislative victory in hand, DeJoria returned to the district\\ncourt to inform it of the change in Texas law. Although he argued that\\nnonrecognition was warranted on multiple grounds, the district court again\\nfocused on only one. Finding the new law did not run afoul of the Texas\\nConstitution’s prohibition of retroactive laws, this time the court granted\\nDeJoria’s motion for nonrecognition after determining that the specific\\nproceedings leading to the judgment against him were incompatible with the\\nrequirements of due process. 8 To reach that decision, the district court\\nreadopted many of the case-specific findings underlying the order this court\\n\\n\\n 8 The court declined to reach DeJoria’s other arguments for nonrecognition: that 1) the\\nMoroccan judgment was rendered under circumstances that raise substantial doubt about\\nthe integrity of the rendering court, 2) the Moroccan judgment was repugnant to Texas public\\npolicy, and 3) recognition of the judgment would violate the Due Process Clause of the\\nFourteenth Amendment.\\n 6\\n\\f Case: 18-50348 Document: 00515078514 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nhad reversed. But it also made new findings: that DeJoria was unable to\\nattend the Moroccan proceedings, that he was unable to obtain counsel to\\nrepresent him in those proceedings, and that, although the Moroccan court\\nrelied on an expert’s opinion to determine damages, that expert lacked\\nindependence. The court again dismissed the case. Maghreb again appealed.\\n II.\\n We have jurisdiction over this case owing to the diversity of the parties,\\nso we apply Texas substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78\\n(1938). In doing so, we are bound by the decisions of the Supreme Court of\\nTexas. Comm’r v. Bosch’s Estate, 387 U.S. 456, 465 (1967). But when no\\ndecision of that court directly addresses the case before us, we are forced to\\nmake an Erie guess, doing our best to write the opinion the Texas high court\\nwould if it had the chance. 9 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir.\\n2018).\\n We must make such a guess to determine which of the Uniform\\nRecognition Acts applies. The Texas Constitution provides that “[n]o bill of\\nattainder, ex post facto law, retroactive law, or any law impairing the\\nobligation of contracts, shall be made.” Tex. Const. art. I, § 16. Although\\nphrased as an absolute prohibition, “[m]ere retroactivity is not sufficient to\\n\\n\\n\\n 9 Although neither party asks us to certify this question to the state court, in an\\namicus brief the State of Texas suggests we should consider it, especially if we are inclined\\nto overturn the statute. We decline to do so because we do not think application of the\\nSupreme Court of Texas’s many retroactivity precedents to this statute leaves us with a close\\ncall. Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 549 (5th Cir. 1998) (noting that the\\n“closeness of the question” and “the existence of sufficient sources of state law” are the most\\nimportant factors in deciding to certify (quotation omitted)). Moreover, a case in which a\\nforeign corporation is attempting to argue that a state legislature has passed a law as a favor\\nto one of its wealthiest citizens seems like the quintessential case for the exercise of diversity\\njurisdiction. Cf. 13E Charles Alan Wright et. al, FED. PRAC. & PROC. § 3601 (3d ed. 2019)\\n(describing the most common justification for federal diversity jurisdiction as “the fear that\\nstate courts would be prejudiced against out-of-state litigants, particularly when opposed by\\nan in-stater”).\\n 7\\n\\f Case: 18-50348 Document: 00515078514 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\ninvalidate a statute.” Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d\\n126, 139 (Tex. 2010) (quotation omitted). Texas courts have tailored the scope\\nof the prohibition to “protect[] settled expectations and prevent[] abuse of\\nlegislative power.” Id. Three factors determinine whether a law runs afoul of\\nthose objectives: “the nature and strength of the public interest served by the\\nstatute as evidenced by the Legislature’s factual findings; the nature of the\\nprior right impaired by the statute; and the extent of the impairment.” Id. at\\n145. The nature and extent of the interference with a party’s rights loom\\nparticularly large. For that reason, “changes in the law that merely affect\\nremedies or procedure, or that otherwise have little impact on prior rights, are\\nusually not unconstitutionally retroactive.” Id. at 146; see also Univ. of Tex.\\nSw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548 (Tex. 2010)\\n(“Statutes . . . that do not deprive the parties of a substantive right . . . may be\\napplied to cases pending at the time of enactment.”).\\n The new law’s limited interference with Maghreb’s legitimate rights\\nresolves the question before us. Unlike Robinson—the seminal Texas case on\\nretroactivity—this is not a case in which a law that allowed a party’s recovery\\nwas changed to “abrogate their claim.” Robinson, 335 S.W.3d at 148. It is not\\neven certain that the law as it stood before the adoption of the updated act\\nwould have led to recognition of the Moroccan judgment. As we mentioned,\\nthe district court agreed to allow DeJoria to press several arguments for\\nnonrecognition after this court returned the case to its hands. 10 Because the\\npassage of the new act made it unnecessary to address those claims, we do not\\n\\n\\n\\n 10 In particular, prior to the update of the law, DeJoria retained the ability to argue\\nthat two additional nonrecognition factors applied: that the “cause of action on which the\\njudgment is based is repugnant to the public policy” of Texas and that Morocco was a\\n“seriously inconvenient forum.” TEX. CIV. PRAC. & REM. CODE §§ 36.005(b)(3) and (6)\\n(Vernon’s 2015). Beyond the Recognition Act’s domain, DeJoria was also raising a federal\\ndue process challenge to recognition of the Moroccan judgment.\\n 8\\n\\f Case: 18-50348 Document: 00515078514 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nknow how likely they were to succeed. Maghreb’s expectation that it would\\nprevail was, in other words, not yet settled. See Union Carbide Corp. v.\\nSynatzske, 438 S.W.3d 39, 58 (Tex. 2014) (upholding retroactive application of\\na law because the plaintiff’s “recovery was not yet predictable” at the time the\\nlaw went into effect).\\n The bigger point, though, is that the retroactive law does not abrogate\\nMaghreb’s claim. It does not strip Maghreb of the ability to seek recognition\\nof the Moroccan judgment. It just gives a district court the ability to deny\\nrecognition if it finds the judgment was obtained in proceedings that were\\nincompatible with the requirements of due process. So the only right that has\\nbeen impinged is the right to automatic recognition of a judgment obtained in\\nproceedings that denied the judgment debtor fundamental fairness. To state\\nthat “right” is to show why we cannot recognize it, let alone allow its protection\\nto sink a state statute. Robinson, 335 S.W.3d at 146 (“[C]ourts must be mindful\\nthat statutes are not to be set aside lightly.”). Indeed, the absurdity of lending\\na court’s power to the vindication of fundamentally unfair proceedings is why\\nthe 2005 Uniform Act recognizes an absence of due process as one of the rare\\nsituations when an American court may not recognize a foreign judgment. It\\nis also noteworthy that the Supreme Court of Texas has only upheld challenges\\nto the retroactive application of a law on four occasions, all of which dealt with\\nlaws that revived expired claims or fully extinguished vested rights. Tenet\\nHospitals Ltd. v. Rivera, 445 S.W.3d 698, 708 (Tex. 2014) (collecting cases).\\nThe updated recognition act does neither.\\n We are mindful that the whiff of home cooking also pervades the Texas\\nside of this case. There is a deep irony in allowing DeJoria to contend he was\\ndenied due process in Morocco when it was his lobbying efforts that changed\\nthe rules of the game midway through the proceedings in the United States.\\nIndeed, the Supreme Court of Texas has been suspicious of retroactive laws\\n 9\\n\\f Case: 18-50348 Document: 00515078514 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nthat inure to the benefit of only one company or individual. 11 Robinson, 335\\nS.W.3d at 149. But in the retroactivity context as in others, “unfair does not\\nalways equal unconstitutional.” Id. at 160 (Willett, J. concurring). And it\\ncannot be said that a state’s desire to provide immediate protection to the due\\nprocess rights of its citizens is not compelling. When balanced against the\\nslight imposition on a right of dubious provenance, retroactive application of\\nthe updated Recognition Act does not violate the Texas Constitution.\\n III.\\n A.\\n Having decided that Texas’s choice to apply its new Recognition Act to\\npending cases was proper, we now must review the district court’s application\\nof that law. And to do that we must determine how closely we should scrutinize\\nthat court’s work.\\n Reciting the standard of review in an appellate opinion is often a rote\\nexercise. Not here. Recognizing that the appeal’s outcome largely turns on\\nthis question, the parties have spent considerable energy contesting whether\\nwe owe deference to certain district court rulings. Maghreb insists that we\\nshould review all aspects of the district court’s denial of recognition de novo,\\nlikening the inquiry to a review for legal sufficiency. DeJoria counters that we\\nshould review the court’s factual findings only for clear error.\\n Much of the confusion surrounding the standard of review arises from\\nthis case’s odd posture. The district court did not rule on a motion for summary\\njudgment or conduct a bench trial, but instead resolved a “motion for\\n\\n\\n\\n\\n 11 DeJoria points to one other recognition case that was pending at the time the law\\nwas passed, In re Carmona, 580 B.R. 690 (Bankr. S.D. Tex. 2018). But the Texas legislature\\nwas only made aware of one case that would be affected by the retroactivity provision—this\\none.\\n\\n 10\\n\\f Case: 18-50348 Document: 00515078514 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nnonrecognition.” That motion is a creature of state law. 12 Regardless of the\\nstyling of the motion on which the district court ruled, however, our appellate\\nstandard of review is governed by federal law, even in this diversity case. See\\nGoodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1040 (5th Cir. 2011); Tax\\nTrack Sys. Corp. v. New Investor World, Inc., 478 F.3d 783, 789 (7th Cir. 2007);\\nHershon v. Gibraltar Bldg. & Loan Ass’n, Inc., 864 F.2d 848, 852 (D.C. Cir.\\n1989). 13\\n The prior panel explained that “[w]hether the judgment debtor\\nestablished that [a] non-recognition provision[] applies is a question of law\\nreviewed de novo.” DeJoria, 804 F.3d at 379. We agree. But the panel had no\\ncause to determine the proper standard of review for the factual findings that\\nunderpin the district court’s legal decision. After all, the issues in that\\nappeal—whether the Moroccan system provides procedures compatible with\\ndue process, whether Moroccan law provides a mechanism to reciprocate\\nrecognition of Texas judgments, and whether the Moroccan court had personal\\njurisdiction over DeJoria—were all legal determinations. See FED. R. CIV. P.\\n44.1 (“The court’s determination [of foreign law] must be treated as a ruling on\\na question of law.”); In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant\\nProduct Liability Litig., 888 F.3d 753, 778 (5th Cir. 2018) (“This court reviews\\n[the] district court’s exercise of personal jurisdiction de novo.” (quotation\\nomitted)).\\n\\n\\n 12 It is not clear, then, how this type of motion found its way to federal court. In federal\\ncourt, the Federal Rules of Civil Procedure should govern how the parties seek and resist\\nrecognition of the judgment. See, e.g., Sw. Livestock and Trucking Co., Inc. v. Ramon, 169\\nF.3d 317, 321 & n.3 (5th Cir. 1999) (disposing of the recognition issue on a federal motion for\\nsummary judgment). Neither party, however, has objected to the use of state procedure in\\nthis federal action, leaving this panel in somewhat uncharted territory.\\n 13 If the Recognition Act demanded a particular standard of review for “manifestly\\n\\nsubstantive” ends, that might be a different story. See Gasperini v. Ctr. for Humanities, Inc.,\\n518 U.S. 415, 429 (1996) (holding that state law governs the trial court standard for\\ndetermining whether a verdict is excessive). It does not.\\n 11\\n\\f Case: 18-50348 Document: 00515078514 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\n But it is a venerable principle that a district court’s factual findings are\\nreversed only if clearly erroneous. FED. R. CIV. P. 52(a)(6) (standard for bench\\ntrials); see also Steven Alan Childress & Martha S. Davis, 1 FEDERAL\\nSTANDARDS OF REVIEW § 2.03[8] 2-32–33 (4th ed. 2010) (explaining that\\n“[m]any courts . . . have assumed that [the] clearly erroneous rule applies to\\nfindings made on motions in addition to trial findings”). Even when an\\nappellate court considers a legal question de novo, that plenary power of review\\ndoes not extend to subsidiary factual findings. See Allstate Ins. Co. v. Abbott,\\n495 F.3d 151, 160 (5th Cir. 2007) (“[S]ubsidiary facts are reviewed for clear\\nerror.”) (citing Maine v. Taylor, 477 U.S. 131, 144–45 (1986)). To take just one\\nexample, jurisdiction is a legal question. But the facts that underlie a\\njurisdictional determination are still reviewed only for clear error. See, e.g.,\\nid.; DePuy Orthopaedics, 888 F.3d at 778 (applying clear error review to\\n“underlying jurisdictional findings of fact” and de novo review to ultimate\\npersonal jurisdiction holding (quotation omitted)); Pederson v. La. State Univ.,\\n213 F.3d 858, 869 (5th Cir. 2000) (“If the district court resolves any factual\\ndisputes in making its jurisdictional findings,” those resolutions are\\noverturned only if “clearly erroneous.” (quotation omitted)). The same must be\\ntrue for factfinding that underpins the legal conclusion of nonrecognition.\\n Appellate court deference to district court factfinding is grounded in\\nconcerns of both expertise and efficiency. Maghreb points out that one of the\\nstrongest justifications for deference—the trial court’s ability to assess the\\ncredibility of live testimony, Anderson v. City of Bessemer City, 470 U.S. 564,\\n575 (1985)—is not present because the testimony of the foreign witnesses was\\npresented on paper. But we defer even when the trial court’s findings are\\n“based . . . on physical or documentary evidence or inferences from other facts.”\\nId. at 574. That is because “[t]he trial judge’s major role is the determination\\nof fact, and with experience in fulfilling that role comes expertise.” Id. Clear\\n 12\\n\\f Case: 18-50348 Document: 00515078514 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nerror review also promotes judicial efficiency. Id. at 574–75 (“Duplication of\\nthe trial judge’s efforts in the court of appeals would very likely contribute only\\nnegligibly to the accuracy of fact determination at a huge cost in diversion of\\njudicial resources.”). District court judges, who do the lion’s share of the work\\nin our federal system, do not dig through voluminous records only to have\\ncourts like this one restart the factfinding from scratch. Instead of redoing\\ntheir work, we defer to their findings so long as they take a permissible view\\nof the evidence. Id. at 574.\\n Although the standard of review is a federal issue, like the prior panel\\nwe “look to Texas law” governing recognition to see if anything counsels in a\\ndifferent direction. 14 DeJoria, 804 F.3d at 379. Nothing does. We see no Texas\\nrecognition case that conflicts with the principles of federal appellate review\\noutlined above. When a trial court is presented with conflicting evidence in\\nrecognition proceedings, Texas courts “defer to the trial court’s . . . resolution\\nof those conflicts.” Mariles v. Hector, No. 05-16-00814-CV, 2018 WL 3723104\\n*6 (Tex. App.—Dallas Aug. 6, 2018, pet. denied). Maghreb cites some Texas\\ncases that explain what we have acknowledged: that review of the district\\ncourt’s ultimate determination of the application of a nonrecognition factor\\n\\n\\n 14 As we have explained, the proper standard of appellate review is a question of\\nfederal law. We do not read this court’s 2015 opinion as out of step with that conclusion. It\\nmay be that the prior panel looked to Texas law only to ascertain whether recognition was a\\nlegal or factual question. See Childress & Davis, supra § 2.03[7] 2-32 n.158 (noting that,\\ndespite application of federal standards of review in diversity cases, “[u]se of state law-fact\\ncharacterization may be more defensible” as that question borders on the substantive). But\\nto the extent the prior panel’s opinion could be read to suggest that state law controls the\\napplicable standard of review in federal court, it announced principles with respect to “the\\ndistrict court’s recognition decision.” DeJoria, 804 F.3d at 379. Again, we answer a different\\nquestion—what level of scrutiny should we apply to the findings of fact subsidiary to that\\nultimate legal conclusion? That question, at least, is controlled by federal law.\\n In any event, we have perused Texas caselaw only out of an abundance of caution. It\\nis less useful this time around—no Texas case has yet analyzed the new factbound\\nnonrecognition factors added by the updated act.\\n\\n 13\\n\\f Case: 18-50348 Document: 00515078514 Page: 14 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nshould be de novo. See, e.g., Sanchez v. Palau, 317 S.W.3d 780, 785 (Tex.\\nApp.—Houston [1st Dist.] 2010, pet. denied) (“[W]e review de novo a trial\\ncourt’s ruling on recognition of a foreign country judgment.”); The Courage Co.,\\nL.L.C. v. The Chemshare Corp., 93 S.W.3d 323, 331 (Tex. App.—Houston [14th\\nDist.] 2002, no pet.) (same). 15 But they have pointed to no case that instructs\\na court of appeals to start on a blank slate in determining the facts. That is\\nnot surprising. Consistent with the standard practice, Texas courts also\\ngenerally defer to trial court factfinding. In re I.I.G.T., 412 S.W.3d 803, 806\\n(Tex. App.—Dallas 2013, no pet.) (explaining that an appellate court should\\nnot normally “disturb the [trial] court’s resolution of evidentiary conflicts that\\nturn on . . . the weight of the evidence”). We thus can disturb the district\\ncourt’s findings only if they are not “plausible in light of the record viewed in\\nits entirety.” Anderson, 470 U.S. at 574.\\n B.\\n Maghreb’s primary argument on appeal—that DeJoria lost his\\nopportunity to complain about the Moroccan proceedings because he failed to\\nparticipate in them—must overcome this deference to the district court’s\\nfactfinding. Maghreb notes that we have “flatly reject[ed]” the due process\\nobjections of judgment debtors who were “given, and waived, the opportunity\\nof making [an] adequate presentation” in the foreign tribunal. Society of\\nLloyd’s v. Turner, 303 F.3d 325, 331 n.20 (5th Cir. 2002) (quotation omitted);\\n\\n\\n 15 Varying procedural postures and a lack of clarity with respect to whether the\\nstandard of review depends on the nonrecognition factor at issue further frustrate the search\\nfor coherence on this question. See Ramon, 169 F.3d at 318 (analyzing recognition decision\\non summary judgment, which is always reviewed de novo); Banque Libanaise Pour Le\\nCommerce v. Khreich, 915 F.2d 1000, 1004 (5th Cir. 1990) (reviewing for abuse of discretion\\na trial court’s choice to apply a discretionary nonrecognition ground, like the ground at issue\\nin this case); Dart v. Balaam, 953 S.W.2d 478, 482–83 (Tex. App.—Fort Worth 1997, no pet.)\\n(reviewing for abuse of discretion the trial court’s determination whether Australia was an\\ninconvenient forum). The important point for this appeal is that we have seen no appellate\\ncourt in a recognition dispute engage in de novo factfinding.\\n 14\\n\\f Case: 18-50348 Document: 00515078514 Page: 15 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nsee also Dart, 953 S.W.2d at 480 (“Grounds for nonrecognition may be waived\\nif a party had the right to assert that ground as an objection or defense in the\\nforeign country but failed to do so.”).\\n But our limited authority when it comes to facts makes short work of\\nthat argument. The district court made three major findings to support\\nnonrecognition: 1) DeJoria’s fear for his safety should he return to Morocco to\\nlitigate was credible and arose directly from his involvement in the Moroccan\\nlawsuit because DeJoria’s position in the Moroccan lawsuit was directly\\nadverse to the interests of the royal family, he was unable to retain a lawyer\\nto appear for him in the initial proceedings or to bring an appeal although the\\ndetermination of damages was based on expert opinion, the Moroccan court\\nmanipulated that process when it went through four experts before finding one\\nthat would deliver its preferred recommendation. Taken together, the first and\\nsecond findings mean that DeJoria was never “given . . . the opportunity of\\nmaking [an] adequate presentation” in Moroccan court and the third means\\nhis case did not otherwise receive fair treatment. Turner, 303 F.3d at 331 n.20.\\nSo unless those findings were clearly erroneous, Maghreb’s “waiver” argument\\nfails.\\n To be sure, Maghreb points to substantial evidence that could support\\ncontrary findings. Its problem is that there is evidence on both sides of these\\ndisputes. Even if Maghreb can convince us that its evidence is stronger, that\\nis not enough to establish that the district court’s crediting of DeJoria’s\\nevidence is implausible. Theriot v. Par. of Jefferson, 185 F.3d 477, 490 (5th\\nCir. 1999) (“Where the evidence can support findings either way, a choice by\\nthe trial judge between two permissible views of the weight of the evidence is\\nnot clearly erroneous.”)\\n Take for instance the finding that DeJoria credibly feared for his life and\\nso was unable to attend the Moroccan proceedings in person. Michael Gustin,\\n 15\\n\\f Case: 18-50348 Document: 00515078514 Page: 16 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nDeJoria’s business partner, described receiving a death threat and explained\\nthat it was directed at both him and DeJoria. DeJoria himself declared that\\nGustin communicated that threat to him and that he believed it was credible.\\nAnd the record contains evidence that their unsuccessful attempts to obtain\\nrepresentation in Morocco may have only heightened their fear. A French\\nattorney with some Moroccan experience told them that it was not only unsafe\\nfor DeJoria and Gustin to return to Morocco, but it would be “unsafe and\\nunwise for any lawyer” or “any sane person,” for that matter, to participate in\\na case that so closely touched the royal family’s interests. Nearly a decade\\nlater, that attorney repeated his concerns. The general counsel for Skidmore,\\nDeJoria’s company that spearheaded the Moroccan project, also says he was\\ntold to stay out of the country by a Moroccan attorney who had been hired to\\nhandle various clerical tasks as the Moroccan lawsuit proceeded. She warned\\nthat “any appearance by Skidmore or any personal representative of Skidmore\\nin the Moroccan lawsuit would be dangerous.”\\n Of course, these assertions all come from individuals who may have an\\naxe to grind in this case. And we are not told much about the circumstances\\nor content of the death threat because Gustin maintains that he “cannot reveal\\n[the] details . . . without compromising the safety of innocent people still in\\nMorocco.” Bias and lack of detail are classic impeachment evidence. But\\nimpeachment usually goes to the weight of the evidence. Arguing about the\\nweight of the evidence is not the terrain an appellant wants to be on. See La\\nDay v. Catalyst Tech., Inc., 302 F.3d 474, 480 (5th Cir. 2002) (noting that it is\\nthe factfinder who “ultimately . . . decide[s] which side has the greater weight\\nof the evidence”).\\n Nor does Maghreb get over the clearly-erroneous hurdle because it\\npresented testimony that DeJoria could have appeared and obtained counsel\\nin the Moroccan litigation. Choosing between conflicting testimony is the\\n 16\\n\\f Case: 18-50348 Document: 00515078514 Page: 17 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nprovince of the factfinder. See Anderson, 470 U.S. at 575 (concluding it “can\\nvirtually never be clear error” when a trial court “credit[s] the testimony of one\\nof two or more witnesses, each of whom has told a coherent and facially\\nplausible story that is not contradicted by extrinsic evidence”). And while\\nMaghreb emphasizes the testimony of its expert on Moroccan law, expert\\ntestimony does not automatically trump lay testimony. Breland v. United\\nStates, 372 F.2d 629, 633 (5th Cir. 1967) (“[L]ay testimony can be sufficient to\\nsatisfy [a party’s] burden even though there is expert testimony to the\\ncontrary.”); see also FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS 3.5 (Civil)\\n(2014) (explaining that, for expert witness testimony, “[a]s with any other\\nwitness, it is up to [the factfinder] to decide whether to rely on it”).\\n To undo factual determinations on appeal, Maghreb must convince us\\nnot that it has the more compelling evidence, but that the other side’s\\ntestimony is not “plausible.” Anderson, 470 U.S. at 574. Maghreb’s expert\\nwitness, a Moroccan attorney, contends that DeJoria’s worries were “baseless\\nand reflect[] his poor understanding of Morocco.” And they also point to several\\ninstances in which Moroccan courts have ruled against royal interests. But\\nthat a trier of fact could plausibly infer that the death threat was fabricated\\ndoes not mean it is implausible to find that the threat was real. Id. at 574.\\n The same may be said for the other two key findings. For instance,\\nalthough DeJoria was able to retain Moroccan attorneys as experts in\\nproceedings stateside after the Moroccan trial court handed down its\\njudgment, there was evidence that two of his attempts to obtain representation\\nin the Moroccan proceedings were rebuffed. And though there was no smoking\\ngun, it was not clear error for the district court to conclude that the Moroccan\\ncourt went fishing for an expert who would determine DeJoria and his partner\\nhad caused Maghreb substantial damages. After all, the expert who found\\nthose damages was the fifth appointed by the Moroccan court—the first three\\n 17\\n\\f Case: 18-50348 Document: 00515078514 Page: 18 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\n“concluded that they could not provide any firm opinion on the matter” and the\\nfourth was replaced for reasons that remain unclear.\\n Although the district court’s assessment of the evidence may be subject\\nto vigorous debate, it is the district court’s job to resolve evidentiary disputes,\\nnot ours. Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d\\n1031, 1036 (5th Cir. 2015) (explaining that, even when “there are two\\npermissible views of the evidence,” the trial court’s choice between them is\\ntypically owed “great deference”). Maghreb has not shown clear error. 16\\n C.\\n Perhaps realizing that its argument founders on the district court’s\\ndifficult-to-undo findings, Maghreb’s primary challenge to those findings is\\nthat they should not have been made in the first place. Each of the pertinent\\nfindings, it argues, was precluded by the prior panel’s opinion.\\n Under the law-of-the-case doctrine—and its corollary, the mandate\\nrule—when a district court receives a case on remand, it may not reexamine\\nthe legal or factual determinations of this court or otherwise disobey our\\nmandate. See Tollett v. City of Kemah, 285 F.3d 357, 363–64 (5th Cir. 2002).\\nThe reach of those related doctrines extends only to matters decided expressly\\nor by necessary implication. In re Felt, 255 F.3d 220, 225 (5th Cir. 2001). And\\nan issue is tacitly decided only when its disposition is a “necessary predicate[]\\nto the ability to address the issue or issues specifically discussed” in the\\nappellate court’s opinion. Id.\\n\\n\\n\\n\\n 16It is worth noting that the three trial judges who handled aspects of this case all\\ngenerally found DeJoria’s evidence about what happened in Morocco more persuasive than\\nMaghreb’s. Three trial judges have reviewed the case because this appeal comes from\\nfindings of a magistrate judge, adopted by the district judge, and the earlier appeal came\\nfrom findings of a different district judge. Although some of the findings in this phase of the\\ncase are new, they rely on much of the same testimony the district court relied on the first\\ntime around.\\n 18\\n\\f Case: 18-50348 Document: 00515078514 Page: 19 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\n The prior panel’s opinion did not preclude the findings the district court\\nmade on remand. First and foremost, the prior appeal was decided under a\\ndifferent law. United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)\\n(describing an exception to the law-of-the-case doctrine when “there has been\\nan intervening change of law by a controlling authority”). That law did not\\nrequire the prior panel to determine whether DeJoria’s “specific proceeding[s]”\\nwere “compatible with the requirements of due process of law.” TEX. CIV. PRAC.\\n& REM. CODE § 36A.004(c)(8). So that panel had no cause to determine\\nwhether DeJoria could in fact safely return to Morocco or whether DeJoria\\ncould in fact retain representation. In determining whether the Moroccan legal\\nsystem made fair proceedings impossible, whether Moroccan courts would\\nreciprocate recognition, and whether the Moroccan commercial court had\\npersonal jurisdiction over DeJoria, the prior panel’s analysis was focused on\\nlegal questions. The fact-intensive inquiry demanded by Texas’s updated\\nRecognition Act put the case on a new playing field.\\n But even if the district court were operating in the same legal landscape,\\nnothing in the prior panel’s opinion forecloses the district court’s findings. The\\npanel held that the Moroccan court’s exercise of jurisdiction over DeJoria did\\nnot violate traditional notions of “fair play and substantial justice” because,\\ndespite any burden litigating in Morocco might place on DeJoria, “Moroccan\\ncourts do not require that the defendant appear personally, and DeJoria could\\nhave litigated entirely through counsel without returning to Morocco.”\\nDeJoria, 804 F.3d at 389. And, relying on testimony from a Moroccan attorney\\nacting as Maghreb’s expert, the court pointed out that “it is ‘not at all\\nuncommon’ for Moroccan attorneys to represent unpopular figures in Moroccan\\ncourts.” Id. at 383. But these general statements about usual Moroccan\\npractices did not address whether DeJoria could have found a willing attorney\\n\\n\\n 19\\n\\f Case: 18-50348 Document: 00515078514 Page: 20 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nin Morocco in his high-profile case. 17 Nor does it avail Maghreb to draw our\\nattention to the previous panel’s aside that, “[a]lthough our inquiry focuses on\\nMorocco’s judicial system, we also observe that the record does not establish\\nthat the King actually exerted any improper influence on the Moroccan court\\nin this case.” Id. at 382 n.9 (emphasis in original). For one, the comment is\\nadmittedly dicta—the footnote could have been erased from the opinion\\nwithout disrupting its systemwide holding in the slightest. Pegues v.\\nMorehouse Parish Sch. Bd., 706 F.2d 735, 738 (5th Cir. 1983) (explaining that\\nlaw of the case does not apply to dicta). And in any case, the question under\\nthe Texas statute is not whether the King actively undermined the\\nproceedings, but whether DeJoria was afforded a fundamentally fair hearing.\\nThe prior panel’s general observations did not foreclose the more searching\\nfactual inquiry now required under Texas law. 18\\n D.\\n Our holding that the district court did not clearly err in its factfinding\\nnor adopt those findings in the face of a contrary mandate from this court\\nleaves us little left to do. Maghreb does not dispute the nonrecognition\\nconclusion if we uphold the findings that DeJoria could neither appear\\npersonally nor find a lawyer to appear for him. That is a sensible stance.\\n\\n\\n 17 And nothing in the prior panel’s opinion foreclosed the district court’s finding that\\nDeJoria could not safely return to Morocco. Indeed, the prior panel did not even mention the\\nalleged threat on DeJoria’s life, let alone determine its credibility.\\n 18 Maghreb also argues at some length about the propriety of a host of other findings\\n\\nthat the magistrate made by readopting the findings made before the first appeal. For\\nreasons similar to those discussed above, we doubt there is much to Maghreb’s argument that\\nthose readopted findings were barred by the law of the case. Nor do we believe its argument\\nthat this court’s 2015 reversal rendered those factual findings “null and void” holds much\\nwater. In many other contexts, a district court will readopt its findings without fanfare when\\nan appeals court returns the case after locating a legal error. See, e.g., Chemtech Royalty\\nAssocs., L.P. v. United States, 823 F.3d 282, 287–88 (5th Cir. 2016); United States v. Ellis,\\n201 F. App’x 170 (4th Cir. 2006) (per curiam). But because we believe the new findings made\\nby the district court are sufficient to justify its nonrecognition decision, we see no need to\\nexplore this issue further.\\n 20\\n\\f Case: 18-50348 Document: 00515078514 Page: 21 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-50348\\nRecognition of a foreign-country judgment does not require the foreign court to\\n“comply with the traditional rigors of American due process.” Turner, 303 F.3d\\nat 330. But the opportunity to present one’s case is no minor twist or turn of\\nmodern due process jurisprudence: “The fundamental requirement of due\\nprocess is the opportunity to be heard at a meaningful time and in a\\nmeaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)\\n(quotation omitted). In light of the facts as found by the district court, it\\nproperly determined that DeJoria was denied due process in Morocco. The\\ndistrict court thus had and properly exercised discretion to deny recognition to\\nthe Moroccan judgment. 19\\n * * *\\n So despite the seeming complexity of this case—royal intrigue, a foreign\\nproceeding, almost a billion dirhams at stake—it ends up being resolved on one\\nof the most basic principles of appellate law: deference to the factfinder. The\\njudgment is AFFIRMED.\\n\\n\\n\\n\\n 19The parties also contest whether recognition should be denied because the Moroccan\\njudgment is repugnant to public policy or because failing to do so would violate the\\nFourteenth Amendment’s due process guarantee. Because we affirm the district court’s\\nnonrecognition decision on another ground, there is no need to discuss those disputes.\\n 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3670,"cells":{"id":{"kind":"number","value":4648822,"string":"4,648,822"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"In Re: Dexter Johnson"},"decision_date":{"kind":"string","value":"2019-08-15"},"docket_number":{"kind":"string","value":"19-20552"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"LESLIE H. SOUTHWICK, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 19-20552 Document: 00515078728 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n REVISED August 15, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 19-20552 August 14, 2019\\n Lyle W. Cayce\\nIn re: DEXTER JOHNSON, Clerk\\n\\n\\n Movant\\n--------------------------------------------------------------\\nConsolidated with 19-70013\\n\\nDEXTER JOHNSON,\\n\\n Petitioner - Appellant\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent - Appellee\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n A Texas inmate whose execution is imminent has presented to us both a\\nrequest to review the district court’s denial of his Rule 60(b) motion for relief\\nfrom a prior judgment and also a motion for permission to file a successive\\n\\f Case: 19-20552 Document: 00515078728 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\napplication for a writ of habeas corpus. We conclude there is no merit in the\\nappeal and DENY review. On the other hand, we conclude that the motion for\\npermission to file has demonstrated possible merit in a claim regarding a\\ncurrent intellectual disability that warrants full exploration by the district\\ncourt. We GRANT the motion and STAY the execution.\\n\\n\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Dexter Johnson was convicted of the murder of Maria Aparece in the\\ncourse of attempting a robbery on June 13, 2007, and he was sentenced to\\ndeath. Far greater detail is given of the offense in Johnson v. Stephens, 617 F.\\nApp’x 293 (5th Cir. 2015). His conviction and sentence were affirmed on direct\\nappeal.\\n Patrick McCann was appointed as Johnson’s state habeas counsel.\\nJohnson filed a state application for writ of habeas corpus while his direct\\nappeal was pending. His state habeas claims were denied, and McCann did\\nnot raise an ineffective assistance of trial counsel (IATC) claim. That\\napplication also did not include a claim under Atkins v. Virginia, 536 U.S. 304\\n(2002). McCann continued to represent Johnson in federal habeas proceedings,\\nfiling an application one year later that was duplicative of the state habeas\\nclaims, plus one claim that Johnson was interrogated in violation of Edwards\\nv. Arizona, 451 U.S. 477 (1981). It also did not include an Atkins claim.\\n After Martinez v. Ryan, 566 U.S. 1 (2012), was decided, McCann filed a\\nmotion in federal court to stay and to abey Johnson’s proceeding to allow\\nexhaustion of his IATC claims or to amend his application under Martinez to\\nadd those claims. That claim alleged that trial counsel were ineffective for\\nfailing to present evidence of Johnson’s brain damage and mental illness\\n\\n\\n 2\\n\\f Case: 19-20552 Document: 00515078728 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nduring the guilt phase to show he could not form intent for murder and that\\nappellate counsel were ineffective for failing to raise IATC claims.\\n The district court ordered supplemental briefing on Trevino v. Thaler,\\n569 U.S. 413 (2013). It ultimately denied Johnson’s motion to stay and abey\\nor amend the federal application and Johnson’s request for habeas relief. The\\ndistrict court granted a Certificate of Appealability (COA) on Johnson’s claim\\nthat his custodial statement was admitted in violation of his Fifth Amendment\\nrights. We then affirmed the denial of habeas relief on his Fifth Amendment\\nclaim and denied an additional request for a COA. Johnson, 617 F. App’x at\\n305. Johnson sought Supreme Court review, which was denied. Johnson v.\\nStephens, 136 S. Ct. 980 (2016).\\n On June 4, 2017, Johnson filed a motion in the federal district court\\nrequesting a new trial. The court denied the motion and his motion for\\nreconsideration. Johnson requested a COA, which was denied by this court.\\nJohnson v. Davis, 746 F. App’x 375, 381 (5th Cir. 2018) (per curiam). The\\nSupreme Court again denied him a writ of certiorari.\\n On January 18, 2019, Johnson, pro se, requested a Federal Public\\nDefender (FPD) be appointed in his case because of the conflict of interest\\nbetween himself and McCann established after Martinez and Trevino.\\nMcCann filed an opposition under seal. Johnson then filed a pro se motion on\\nFebruary 1, 2019, again asking for independent counsel. On February 5, 2019,\\nthe court appointed a FPD, but McCann remained counsel as well. The FPD\\nrequested removal of McCann, which the State and McCann opposed.\\n Six days after the motion to remove him, McCann filed a single-issue\\nsuccessive habeas application in state court, which was denied April 29, 2019.\\nMcCann also filed a clemency petition. On April 30, 2019, the district court\\n\\n\\n 3\\n\\f Case: 19-20552 Document: 00515078728 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nstayed Johnson’s execution, noting “troubling concerns” about McCann.\\nMcCann withdrew two days later.\\n On June 24, 2019 Johnson filed a motion for relief from judgment under\\nFederal Rule of Civil Procedure 60(b). The district court denied the motion on\\nAugust 12, 2019 and did not certify any issue for appeal. Johnson immediately\\napplied for a certificate of appealability with this court.\\n On August 6, 2019, Johnson moved in state court to strike his second\\nsuccessive state habeas application, alleging that it was filed by McCann\\nwithout his permission. Along with that motion, he also filed a successive\\nhabeas application. The new habeas application was denied “as an abuse of\\nthe writ without reviewing the merits of the claims raised” on August 13, 2019.\\nThe motion to strike the prior application also was denied.\\n On August 8, 2019, Johnson also moved in this court under 28 U.S.C.\\n§ 2244 for an order authorizing the district court to consider a second or\\nsuccessive application for a writ of habeas corpus based on an Atkins claim.\\n We first discuss Johnson’s Motion for a Certificate of Appealability\\nrelating to the district court’s denial of relief under Rule 60(b). Then we will\\nreview the motion for an order authorizing a successive habeas application.\\n\\n DISCUSSION\\nI. Motion for COA on denial of Rule 60(b) motion\\n “At the COA stage, the only question is whether the applicant has shown\\nthat ‘jurists of reason could disagree with the district court’s resolution of his\\nconstitutional claims or that jurists could conclude the issues presented are\\nadequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S.\\nCt. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).\\nThis court reviews the district court’s order denying a Rule 60(b) motion for an\\nabuse of discretion, so on a COA this court must determine whether reasonable\\n 4\\n\\f Case: 19-20552 Document: 00515078728 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\njurists could conclude the district court abused its discretion. Id. at 777. While\\na full merits inquiry is not proper in the COA analysis, we conduct a threshold\\ninquiry to determine if the district court’s decision was debatable. Id. at 774.\\n “[R]elief under Rule 60(b)(6) is available only in ‘extraordinary\\ncircumstances.’” Id. at 777 (quoting Gonzales v. Crosby, 545 U.S. 524, 535\\n(2005)). Extraordinary circumstances “will rarely occur in the habeas context.”\\nGonzalez, 545 U.S. at 535. The district court is permitted to consider a “wide\\nrange of factors” in determining whether extraordinary circumstances are\\npresent. Buck, 137 S. Ct. at 778. “These may include, in an appropriate case,\\n‘the risk of injustice to the parties’ and ‘the risk of undermining the public’s\\nconfidence in the judicial process.’” Id. (quoting Liljeberg v. Health Servs.\\nAcquisition Corp., 486 U.S. 847, 863-64 (1988)). “Moreover, a Rule 60(b)(6)\\nmovant must show that he can assert ‘a good claim or defense’ if his case is\\nreopened.” Ramirez v. Davis, 19-70004, 2019 WL 2622147, at *6 (5th Cir. June\\n26, 2019) (quoting Buck, 137 S. Ct. at 780).\\n The district court concluded that Johnson’s motion was a valid Rule 60(b)\\nmotion because it attacked a defect in the integrity of the prior federal habeas\\nproceeding. See Gilkers v. Vannoy, 904 F.3d 336, 344 (5th Cir. 2018). That\\ndefect was McCann’s ineffective assistance and conflicts of interest. Jurists of\\nreason would not conclude that the district court abused its discretion in\\nfinding Johnson’s motion to be a true Rule 60(b) motion.\\n The district court also determined that Johnson’s motion was timely\\nbecause newly appointed counsel filed the motion within six months after\\nappointment as co-counsel and very shortly after original habeas counsel was\\nremoved. The question of timeliness is based on the “facts and circumstances\\nof the case.” Ramirez, 2019 WL 2622147, at *5 (quotation omitted).\\n\\n\\n 5\\n\\f Case: 19-20552 Document: 00515078728 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n Johnson challenges here the district court’s denial of his Rule 60(b)\\nmotion based on its finding that there were not extraordinary circumstances\\njustifying reopening the judgment. The district court determined that Johnson\\nhad properly alleged a defect in the integrity of his proceeding but concluded\\nthat he had failed to demonstrate extraordinary circumstances, basing its\\nopinion primarily on Johnson’s failure to plead any meritorious defaulted IATC\\nclaims. Johnson claims that the district court unnecessarily narrowed the wide\\nrange of factors that should have been considered, focusing only on whether\\nJohnson described a meritorious IATC claim that was defaulted and whether\\nJohnson had pled that his federal habeas proceeding was deficient.\\n Johnson claims that under the COA standard, jurists of reason could\\ndebate whether the district court abused its discretion in concluding that\\nJohnson needed to present the merits of a defaulted IATC claim. Johnson\\nargues that the question under Rule 60(b) is not whether there is a meritorious\\nhabeas claim if he was represented by conflict-free counsel, but whether his\\nprevious counsel McCann’s performance was so deficient that he failed to\\nprovide the quality of representation that 18 U.S.C. § 3599 guarantees.\\nJohnson’s claim is that McCann’s representation fell so far below the standards\\nof Section 3599 that his case presents extraordinary circumstances.\\n Johnson also claims that the district court, which based its decision on\\nthe lack of any debatable defaulted IATC claim, has placed habeas applicants\\nin an impossible situation. Johnson argues that requiring him to identify and\\nlitigate the substantive merit and procedural defenses of defaulted IATC\\nclaims would effectively require Mr. Johnson to transform his Rule 60(b)\\nmotion into a successive petition.\\n Finally, Johnson argues that reasonable jurists could debate whether the\\ndistrict court abused its discretion by failing to address McCann’s ethical\\n 6\\n\\f Case: 19-20552 Document: 00515078728 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nviolations. Johnson claims that McCann violated multiple ethical rules,\\nincluding the duty of candor for not explaining his conflict of interest and the\\nduty of loyalty for not remedying the conflict.\\n Responding to these arguments, we point out that having conflicted\\ncounsel is not enough to obtain relief under Rule 60(b). See Raby v. Davis, 907\\nF.3d 880, 884 (5th Cir. 2018). The Supreme Court explained that even if it is\\nshown to be debatable that state habeas counsel was constitutionally\\nineffective, there is another “significant element” of a Rule 60(b)(6) motion: the\\nclaim must have “some merit.” Buck, 137 S. Ct. at 780. The Court elaborated\\nthat this means that the movant must show “a good claim or defense” because\\nthat “is a precondition of Rule 60(b)(6) relief.” Id. (second quotation from 11\\nWRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2857).\\n The district court properly held that Johnson fell short on this significant\\nrequirement. In the reply brief, current counsel mentioned a few potentially\\nmeritorious claims that were previously defaulted but failed to brief them in\\nany detail whatsoever. The district court stated that it had directed the\\nconflict-free attorneys to “scour the record” for Strickland claims that meet the\\nprerequisites for Martinez and Trevino, but there were no identified\\n“procedural default[s] that would otherwise bar a federal habeas court from\\nhearing a substantial claim of ineffective assistance at trial.” Jennings, 760 F.\\nApp’x 319, 324 (5th Cir. 2019) (citations omitted). Our finding here is\\nconsistent with Buck’s directive that we not delve too deeply into the\\nunderlying merits of a claim, because none was presented. 137 S. Ct. at 774.\\nFurthermore, in a deficient representation case such as this, there needed to\\nbe some factor besides the representation. See Id. at 777-780 (finding that\\nMartinez/Trevino was one significant element but relying in significant part on\\nother circumstances such as race being a basis for the verdict). Johnson failed\\n 7\\n\\f Case: 19-20552 Document: 00515078728 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nto brief these claims, and so we find that reasonable jurists would not debate\\nthe district court’s decision that Johnson’s Martinez and Trevino conflict\\narguments were inadequate to show exceptional circumstances.\\n As to Johnson’s argument that the district court ignored his claims about\\nMcCann’s alleged deficient performance, the district court stated that Rule\\n60(b) relief is ordinarily not appropriate in the habeas context. Buck, 137 S.\\nCt. at 777. If there were no underlying meritorious waived claims, then it can\\nhardly be argued that there is a “risk of injustice” to Johnson because he did\\nnot argue he would be entitled to any form of relief if his case were reopened.\\nSee Liljeberg, 486 U.S. at 863-864 (cited in Buck, 137 S. Ct. at 778).\\nFurthermore, in other cases where habeas counsel was deficient for omitting\\ncertain claims, the Supreme Court has stated that such an attack “ordinarily\\ndoes not go to the integrity of the proceedings.” Gonzales v. Crosby, 545 U.S.\\nat 532 n.5. Although Johnson attempts to recast McCann’s actions as choices,\\nnot omissions, the thrust of the logic still applies: McCann’s alleged deficient\\nperformance was not itself sufficient to constitute exceptional circumstances.\\n Reasonable jurists would not debate that the district court did not abuse\\nits discretion in concluding that Johnson’s claims did not present extraordinary\\ncircumstances. This is because Johnson failed to brief any waived claims\\nsufficient to allow the district court to determine whether any of them had\\nsome merit. Johnson also fails to provide us any authority that Section 3599\\nhas ever provided relief pursuant to Rule 60(b). In sum, reasonable jurists\\nwould not debate that the district court did not abuse its discretion in denying\\nJohnson’s Rule 60(b) motion.\\n Johnson’s motion for a COA is DENIED.\\n\\n\\n\\n\\n 8\\n\\f Case: 19-20552 Document: 00515078728 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nII. Motion for Successive Application\\n We review a motion for the filing of a successive habeas application to\\ndetermine if the applicant makes a prima facie showing that he has met the\\nrequirements of Section 2244. 28 U.S.C. § 2244(b)(3)(C). A prima facie\\nshowing is “simply a sufficient showing of possible merit to warrant a fuller\\nexploration by the district court.” In re Morris, 328 F.3d 739, 740 (5th Cir.\\n2003) (quoting Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997)).\\n A person in custody under a state-court judgment who moves to file a\\nsuccessive application for a writ of habeas corpus in federal court must satisfy\\nthese requirements:\\n (1) A claim presented in a second or successive habeas\\n corpus application under section 2254 that was presented in a\\n prior application shall be dismissed.\\n (2) A claim presented in a second or successive habeas corpus\\n application under section 2254 that was not presented in a prior\\n application shall be dismissed unless-\\n (A) the applicant shows that the claim relies on a new\\n rule of constitutional law, made retroactive to cases on\\n collateral review by the Supreme Court, that was previously\\n unavailable; or\\n (B)(i) the factual predicate for the claim could not have\\n been discovered previously through the exercise of due\\n diligence; and\\n (ii) the facts underlying the claim, if proven and\\n viewed in light of the evidence as a whole, would be sufficient\\n to establish by clear and convincing evidence that, but for\\n constitutional error, no reasonable factfinder would have\\n found the applicant guilty of the underlying offense.\\n28 U.S.C. § 2244(b).\\n Johnson’s two primary arguments in support of his Atkins claim are that\\nhis only recently discharged counsel had a conflict of interest because he is the\\n\\n\\n 9\\n\\f Case: 19-20552 Document: 00515078728 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\none whose ineffectiveness in state habeas needed to be challenged, and that\\nrecent changes to the medical standards for determining intellectual disability\\nbenefit him. Applying Section 2244(b)(2)(A), Johnson argues that Atkins is a\\nnew rule of constitutional law that is retroactive and that his claim was\\npreviously unavailable because the latest professional diagnostic manual\\nchanged the framework for intellectual disability. 1\\n At trial, Johnson was found not to be intellectually disabled. This was\\nunder an earlier manual, DSM-IV-TR, which relied on Johnson’s IQ score that\\nwas above 70. 2 The latest DSM-5 manual changed the diagnostic framework\\nfor intellectual disability. Higher IQ scores no longer bar a diagnosis of an\\nintellectual disability. Dr. Daniel A. Martell concluded that as of July 31, 2019,\\nJohnson “meets the criteria for a diagnosis of Intellectual Disability” under the\\nDSM-5. In 2019, Johnson scored 70 on a full-scale WAIS-IV IQ test.\\n First, Johnson must show that his claim was not presented in a prior\\nfederal application. 28 U.S.C. § 2244(b)(1). The State concedes that it was not.\\nThus, Johnson has met the requirements of Section 2244(b)(1).\\n Second, “Atkins created a new rule of constitutional law . . . made\\nretroactive to cases on collateral review by the Supreme Court.” In re\\nCampbell, 750 F.3d 523, 530 (5th Cir. 2014). As is obvious, though, Atkins was\\ndecided long before Johnson even committed his crimes. A meaningful hurdle\\nfor Johnson is to demonstrate why we should consider that case to be\\n\\n\\n\\n 1 Johnson also argues that his claim satisfies Section 2244(b)(2)(B), dealing with the\\nfactual predicates for his claims. We conclude that the arguments and evidence before us\\nsatisfy only Section 2244(b)(1).\\n 2 The manuals express current medical standards for defining intellectual disability.\\n\\n“Reflecting improved understanding over time, . . . current manuals offer ‘the best available\\ndescription of how mental disorders are expressed and can be recognized by trained\\nclinicians.’” Moore v. Texas, 137 S. Ct. 1039, 1053 (2017) (quoting the DSM-5 and noting that\\ncurrent medical standards constrain a state’s definition of what is an intellectual disability).\\n 10\\n\\f Case: 19-20552 Document: 00515078728 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nretroactive as to him. The State argues that it is not. We hold to the contrary,\\ncounterintuitively perhaps but not unreasonably, with the full weight of our\\nconclusion being borne by this court’s recent decision in In re Cathey, 857 F.3d\\n221 (5th Cir. 2017). We discuss that case next.\\n\\n A. Claim was previously unavailable\\n We analyze whether Johnson’s “claim relies on a new rule of\\nconstitutional law, made retroactive to cases on collateral review by the\\nSupreme Court, that was previously unavailable.” § 2244(b)(2)(A).\\n In Cathey, the determination before trial that the defendant had an IQ\\nof 77 meant his IQ was too high for intellectual disability. In re Cathey, 857\\nF.3d at 230. Upon Cathey’s admission to prison, though, which was pre-Atkins,\\nan IQ test was given to him that supported that his IQ was about 73, within\\nthe range of error for sufficient intellectual disability to be exempt from the\\ndeath penalty. Id. at 232. For disputed reasons, the documents for that test\\ndid not become available to the inmate and counsel until at least 12 years after\\nhis conviction. Id. Further, it was 9 years after Cathey’s conviction that courts\\nrecognized as viable a theory called the Flynn Effect which supported that IQ\\nscores could be inflated for certain reasons. Id. at 227, 229-33. Finally, any\\nauthority for making an IQ of 70 a ceiling for intellectual disability was\\nrejected in 2014 when the Supreme Court held that there could not be a\\nmandatory IQ number cutoff for consideration of intellectual disability. See\\nHall v. Florida, 572 U.S. 701, 721-22 (2014); In re Cathey, 857 F.3d at 237-38.\\n For all these reasons, even though when Cathey filed his initial state and\\nfederal habeas applications there was not a claim “with some possibility of\\nmerit” under Atkins, there later was a possible claim. In re Cathey, 857 F.3d\\nat 232-33, 237-38. To be clear, it was more than just a reassessment by medical\\nprofessionals of this inmate’s particular mental abilities. The significant\\n 11\\n\\f Case: 19-20552 Document: 00515078728 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nchange was in the medical methodology for evaluating the relevant disabilities\\nand in courts’ recognition of those changes.\\n Those facts amounted at least to a prima facie showing that Atkins was\\npreviously unavailable as required by Section 2244(b)(2)(A). Id. at 233. We\\ndid not separately analyze whether it was enough that Atkins in a generic\\nsense was a rule of constitutional law, made retroactive to cases on collateral\\nreview by the Supreme Court, even though it was not so clearly retroactive in\\nits application to Cathey. We accept here that the explicit conclusions in\\nCathey necessarily decided that latter point as well and move on.\\n The facts relevant to Johnson are quite similar. In 2013, six years after\\nJohnson’s conviction, a new diagnostic manual called the DSM-5 for mental\\ndisorders was released. The new diagnostic guidelines included significant\\nchanges in the diagnosis of intellectual disability, which changed the focus\\nfrom specific IQ scores to clinical judgment. The DSM-5 recognizes that an\\nindividual with an IQ score over 70 may still qualify as intellectually disabled.\\nThe previous diagnostic manual, in effect when Johnson filed his initial federal\\nhabeas petition, did not classify Johnson as intellectually disabled because of\\nhis IQ. Further bolstering that his claim was unavailable until now, Johnson\\nunder a current full-scale IQ testing scored 70, within the Atkins range.\\nJohnson also argues that although the DSM-5 was published before his habeas\\npetition was denied for the first time in federal court, the DSM-5 was published\\nonly 17 days before the denial, which renders his claim not feasible as an\\namendment to his first petition. This change in diagnostic standards is\\ncomparable to what allowed Cathey to proceed with his Atkins claim, which\\nwere the judicial recognition of the Flynn Effect and the abandonment of any\\nrule-of-thumb for a maximum relevant IQ level. Id. at 232-33.\\n\\n\\n 12\\n\\f Case: 19-20552 Document: 00515078728 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n The State’s principal argument about Cathey is that it was “effectively\\noverruled by the Supreme Court in Shoop v. Hill, 139 S. Ct. 504, 507-08 (2019)\\n(per curiam).” The court in Cathey relied significantly on Moore in evaluating\\nthe prima facie showing of Cathey’s intellectual disability. In re Cathey, 857\\nF.3d at 234-36. The Supreme Court in Moore had reviewed a Texas Court of\\nCriminal Appeals decision which had not applied updated medical standards\\nin evaluating an Atkins claim. Moore, 137 S. Ct. at 1053. Later, the Supreme\\nCourt in Shoop determined that Moore was not clearly established law for the\\npurposes of deciding whether a state court, whose decision was reached before\\nMoore was decided, had unreasonably applied established law to a habeas\\nclaim. Shoop, 139 S. Ct. at 507-08 (citing 28 U.S.C. § 2254(d)(1)). Shoop,\\nthough, concerned the relitigation bar of Section 2254(d)(1), and it did not\\noverrule Cathey, which concerned a prima facie showing under Section 2244.\\n The State gives us little else on which to evaluate Cathey. Its sole\\nsecondary argument is to distinguish the present case from Cathey in these\\nways: Cathey’s conviction was final before Atkins was decided, while Johnson\\ncommitted his crimes after Atkins; by the time Cathey was seeking Section\\n2254 relief, Atkins had been decided but it was unclear how to present the\\nclaim, uncertainties that did not apply to Johnson’s initial pursuit of federal\\nhabeas; and Cathey showed greater diligence in bringing the Atkins claim than\\ndid Johnson. These distinctions do not assist the State. The central problem\\nhere is that both Cathey and now Johnson were presented — after all the\\nevents which the State argues are distinctions — with reasons that an Atkins\\nclaim is possibly meritorious when it had not previously been. The State\\nseemingly recognizes the weakness of the distinctions, as after describing\\nthem, it returns to the argument that Cathey has been overruled by Shoop.\\n\\n\\n 13\\n\\f Case: 19-20552 Document: 00515078728 Page: 14 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n What opens the door for Johnson is the Cathey decision, which has\\nprecedentially determined that it is correct to equate legal availability with\\nchanges in the standards for psychiatric evaluation of the key intellectual\\ndisability factual issues raised by Atkins. We are applying that decision to a\\nnew, but not meaningfully distinguishable, set of facts.\\n\\n B. Prima facie showing of disability\\n The requirement of a prima facie showing comes from Section\\n2244(b)(3)(C). Part of the showing is not only that his claim relies on\\nretroactive Supreme Court precedent that was previously unavailable, but also\\na prima facie showing that his claim has merit. See In re Cathey, 857 F.3d at\\n226. To be intellectually disabled, an individual must establish intellectual-\\nfunctioning deficits, adaptive deficits, and onset of those deficits when the\\nindividual is a minor. See id. at 235. Dr. Daniel Martell concluded after\\nextensive evaluation of Johnson, including IQ scores, neuropsychological\\ntesting, and interviews with witnesses and Johnson, that Johnson has deficits\\nin intellectual functioning. This is “confirmed by his IQ score of 70 on the\\nWAIS-IV, IQ scores from tests administered pretrial, and the clear cognitive\\ndeficits displayed on multiple neuropsychological tests.” Dr. Martell concluded\\nalso that Johnson is at or below the bottom two percent of the population with\\nregard to verbal learning and memory, that Johnson has frontal lobe\\nimpairment, and that he has right hemisphere brain dysfunction.\\nFurthermore, Dr. Watson, the trial expert, averred that he would no longer\\ntestify that Johnson is not intellectually disabled based on Johnson’s IQ test\\nscores from that time.\\n Dr. Martell also concluded that Johnson exhibited deficits in all three\\ndomains of adaptive functioning. Johnson repeated the second grade and\\nstruggled with reading comprehension and problem solving. He also struggled\\n 14\\n\\f Case: 19-20552 Document: 00515078728 Page: 15 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nto articulate words. In high school, Johnson functioned at the sixth-grade\\nlevel. Johnson also exhibited deficits in the social domain, as he struggled to\\nmake friends, was immature compared to peers, could not make eye contact,\\ncould not hold a conversation, struggled to control his emotions, and could not\\nread the emotions of others. Johnson’s deficiency in the practical domain was\\nevidenced by his inability to follow bus or walking directions, struggles with\\npersonal hygiene, and inability to manage money or his own affairs.\\n Finally, Dr. Martell concluded that the onset of Johnson’s disability was\\nduring the developmental period, through witness declarations, trial\\ntestimony, and records.\\n The State contends that we must review whether the Texas Court of\\nCriminal Appeals “unreasonably determined that the facts set forth in\\n[applicant]’s petition, if true, would not establish by clear and convincing\\nevidence that no rational factfinder would fail to find [applicant] intellectually\\ndisabled.” Busby v. Davis, 925 F.3d 699, 716 (5th Cir. 2019). The State\\ncontends Johnson’s application here lacks merit because we should defer to the\\nTexas Court of Criminal Appeals’ decisions. There are actually two state court\\ndenials of Johnson’s Atkins claim. One was on April 29, 2019, the other on\\nAugust 13, 2019. Both orders from the Court of Criminal Appeals stated that\\nthe court dismissed the “application as an abuse of the writ without reviewing\\nthe merits of the claims raised.” Both orders post-date Moore.\\n Whether the decisions were on the merits is affected by recent caselaw\\nthat recasts a similarly-phrased Texas decision as a merits one “when a\\ndefendant who was convicted post-Atkins raises an Atkins claim for the first\\ntime in a successive habeas application[; that is because] the Texas court must\\ndetermine whether the defendant has asserted facts, which if true, would\\nsufficiently state an Atkins claim to permit consideration of the successive\\n 15\\n\\f Case: 19-20552 Document: 00515078728 Page: 16 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\npetition.” Busby, 925 F.3d at 707. We understand the Busby court to be\\nreferring to the analysis the Texas court is to undertake in considering a\\nsuccessive application under Texas Code of Criminal Procedure article 11.071,\\nsection 5(a), and calling that merits-based. Regardless of what the best\\nreading of Busby may be, the initial decision in this case is for the district court.\\n We now consider whether Johnson must overcome the relitigation bar of\\nSection 2254(d). Section 2244(b)(3)(C) states that a court “may authorize the\\nfiling of a second or successive application only if it determines that the\\napplication makes a prima facie showing that the application satisfies the\\nrequirements of this subsection.” It makes no mention of Section 2254(d),\\nwhich is in a different subsection. In re Cathey discussed this issue. 857 F.3d\\nat 236. It recognized that Cathey’s Atkins claim was previously brought in a\\nsuccessive habeas petition before the state court, but the court did not analyze\\nthe relitigation bar of Section 2254(d) in making its Section 2244 analysis. Id.\\nWe held that “the state court findings concerning the Atkins claim are wholly\\nirrelevant to our inquiry as to whether [the petitioner] has made a prima facie\\nshowing of entitlement to proceed with his federal habeas application, which is\\nan inquiry distinct from the burden that [the petitioner] must bear in proving\\nhis claim in the district court.” Id. (alteration in original) (quoting In re Wilson,\\n442 F.3d 872, 878 (5th Cir. 2006)). We therefore conclude that Johnson is not\\nyet required to address the Texas court’s decisions.\\n Having determined that Johnson at this stage is not required to show\\nthat the state court unreasonably determined the facts, we find that Johnson\\nhas at least made a prima facie showing of intellectual disability.\\n\\n\\n\\n\\n 16\\n\\f Case: 19-20552 Document: 00515078728 Page: 17 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n C. Timeliness\\n Johnson also must show that his application is timely. There is a one-\\nyear statute of limitations on applications for a writ of habeas corpus running\\nfrom the latest of:\\n (A) the date on which the judgment became final by the conclusion\\n of direct review or the expiration of the time for seeking such\\n review;\\n (B) the date on which the impediment to filing an application\\n created by State action in violation of the Constitution or laws of\\n the United States is removed, if the applicant was prevented from\\n filing by such State action;\\n (C) the date on which the constitutional right asserted was initially\\n recognized by the Supreme Court, if the right has been newly\\n recognized by the Supreme Court and made retroactively\\n applicable to cases on collateral review; or\\n (D) the date on which the factual predicate of the claim or claims\\n presented could have been discovered through the exercise of due\\n diligence.\\n28 U.S.C. § 2244(d)(1).\\n Johnson devotes his argument to the equitable tolling of the statute of\\nlimitations, which he claims began to run on the date which the factual\\npredicate of the claim or claims presented could have been discovered through\\nthe exercise of due diligence. § 2244(d)(1)(D). The date that factual predicate\\nbecame available was on May 18, 2013, with the publication of the DSM-5.\\nThough that does not meet the one-year statute of limitations, Johnson argues\\nhe is entitled to equitable tolling under Holland v. Florida, 560 U.S. 631, 649\\n(2010). “To establish his entitlement to equitable tolling, a petitioner must\\n‘sho[w] (1) that he has been pursuing his rights diligently, and (2) that some\\nextraordinary circumstances stood in his way and prevented timely filing.’”\\nManning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012) (quoting Holland, 560 U.S.\\n\\n 17\\n\\f Case: 19-20552 Document: 00515078728 Page: 18 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nat 649). As to diligence, Johnson claims that he was diligent in seeking counsel\\nthat was not conflicted. He requested, pro se, conflict-free counsel once he was\\naware of the conflict. He has also filed this motion within six months of\\nappointment of conflict-free counsel.\\n Johnson argues that the conflicts of his counsel were the extraordinary\\ncircumstances sufficient to justify his delay. The Supreme Court held that “at\\nleast sometimes, professional misconduct that fails to meet [a circuit court’s]\\nstandard could nonetheless amount to egregious behavior and create an\\nextraordinary circumstance that warrants equitable tolling.” Holland, 560\\nU.S. at 651. Johnson also argues that equitable tolling is best decided at an\\nevidentiary hearing because of its fact-bound nature. “[W]e also recognize the\\nprudence, when faced with an equitable, often fact-intensive inquiry, of\\nallowing the lower courts to undertake it in the first instance.” Id. at 654\\n(quotation marks and citation omitted).\\n Similarly, we have held that questions of equitable tolling are best left\\nto the district court for the initial analysis. In re Cathey, 857 F.3d at 240-41.\\nWe stated there that the delay gave us pause but determined further factual\\ndevelopment was needed. Id. The district court here is also better positioned\\nthan are we to gauge the timeliness of the motion for a successive application.\\n We GRANT Johnson’s motion for authorization to file a successive\\napplication for a writ of habeas corpus and STAY the execution. We DENY a\\nCOA on the district court’s order rejecting the Rule 60(b) motion.\\n\\n\\n\\n\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426075/\", \"author_raw\": \"LESLIE H. SOUTHWICK, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SOUTHWICK"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"HIGGINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"SOUTHWICK\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648822/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In Re: Dexter Johnson\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 19-20552 Document: 00515078728 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n REVISED August 15, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 19-20552 August 14, 2019\n Lyle W. Cayce\nIn re: DEXTER JOHNSON, Clerk\n\n\n Movant\n--------------------------------------------------------------\nConsolidated with 19-70013\n\nDEXTER JOHNSON,\n\n Petitioner - Appellant\n\nv.\n\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\n\n Respondent - Appellee\n\n\n\n\n Appeals from the United States District Court\n for the Southern District of Texas\n\n\nBefore SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.\nLESLIE H. SOUTHWICK, Circuit Judge:\n A Texas inmate whose execution is imminent has presented to us both a\nrequest to review the district court’s denial of his Rule 60(b) motion for relief\nfrom a prior judgment and also a motion for permission to file a successive\n\f Case: 19-20552 Document: 00515078728 Page: 2 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\napplication for a writ of habeas corpus. We conclude there is no merit in the\nappeal and DENY review. On the other hand, we conclude that the motion for\npermission to file has demonstrated possible merit in a claim regarding a\ncurrent intellectual disability that warrants full exploration by the district\ncourt. We GRANT the motion and STAY the execution.\n\n\n FACTUAL AND PROCEDURAL BACKGROUND\n Dexter Johnson was convicted of the murder of Maria Aparece in the\ncourse of attempting a robbery on June 13, 2007, and he was sentenced to\ndeath. Far greater detail is given of the offense in Johnson v. Stephens, 617 F.\nApp’x 293 (5th Cir. 2015). His conviction and sentence were affirmed on direct\nappeal.\n Patrick McCann was appointed as Johnson’s state habeas counsel.\nJohnson filed a state application for writ of habeas corpus while his direct\nappeal was pending. His state habeas claims were denied, and McCann did\nnot raise an ineffective assistance of trial counsel (IATC) claim. That\napplication also did not include a claim under Atkins v. Virginia, 536 U.S. 304\n(2002). McCann continued to represent Johnson in federal habeas proceedings,\nfiling an application one year later that was duplicative of the state habeas\nclaims, plus one claim that Johnson was interrogated in violation of Edwards\nv. Arizona, 451 U.S. 477 (1981). It also did not include an Atkins claim.\n After Martinez v. Ryan, 566 U.S. 1 (2012), was decided, McCann filed a\nmotion in federal court to stay and to abey Johnson’s proceeding to allow\nexhaustion of his IATC claims or to amend his application under Martinez to\nadd those claims. That claim alleged that trial counsel were ineffective for\nfailing to present evidence of Johnson’s brain damage and mental illness\n\n\n 2\n\f Case: 19-20552 Document: 00515078728 Page: 3 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nduring the guilt phase to show he could not form intent for murder and that\nappellate counsel were ineffective for failing to raise IATC claims.\n The district court ordered supplemental briefing on Trevino v. Thaler,\n569 U.S. 413 (2013). It ultimately denied Johnson’s motion to stay and abey\nor amend the federal application and Johnson’s request for habeas relief. The\ndistrict court granted a Certificate of Appealability (COA) on Johnson’s claim\nthat his custodial statement was admitted in violation of his Fifth Amendment\nrights. We then affirmed the denial of habeas relief on his Fifth Amendment\nclaim and denied an additional request for a COA. Johnson, 617 F. App’x at\n305. Johnson sought Supreme Court review, which was denied. Johnson v.\nStephens, 136 S. Ct. 980 (2016).\n On June 4, 2017, Johnson filed a motion in the federal district court\nrequesting a new trial. The court denied the motion and his motion for\nreconsideration. Johnson requested a COA, which was denied by this court.\nJohnson v. Davis, 746 F. App’x 375, 381 (5th Cir. 2018) (per curiam). The\nSupreme Court again denied him a writ of certiorari.\n On January 18, 2019, Johnson, pro se, requested a Federal Public\nDefender (FPD) be appointed in his case because of the conflict of interest\nbetween himself and McCann established after Martinez and Trevino.\nMcCann filed an opposition under seal. Johnson then filed a pro se motion on\nFebruary 1, 2019, again asking for independent counsel. On February 5, 2019,\nthe court appointed a FPD, but McCann remained counsel as well. The FPD\nrequested removal of McCann, which the State and McCann opposed.\n Six days after the motion to remove him, McCann filed a single-issue\nsuccessive habeas application in state court, which was denied April 29, 2019.\nMcCann also filed a clemency petition. On April 30, 2019, the district court\n\n\n 3\n\f Case: 19-20552 Document: 00515078728 Page: 4 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nstayed Johnson’s execution, noting “troubling concerns” about McCann.\nMcCann withdrew two days later.\n On June 24, 2019 Johnson filed a motion for relief from judgment under\nFederal Rule of Civil Procedure 60(b). The district court denied the motion on\nAugust 12, 2019 and did not certify any issue for appeal. Johnson immediately\napplied for a certificate of appealability with this court.\n On August 6, 2019, Johnson moved in state court to strike his second\nsuccessive state habeas application, alleging that it was filed by McCann\nwithout his permission. Along with that motion, he also filed a successive\nhabeas application. The new habeas application was denied “as an abuse of\nthe writ without reviewing the merits of the claims raised” on August 13, 2019.\nThe motion to strike the prior application also was denied.\n On August 8, 2019, Johnson also moved in this court under 28 U.S.C.\n§ 2244 for an order authorizing the district court to consider a second or\nsuccessive application for a writ of habeas corpus based on an Atkins claim.\n We first discuss Johnson’s Motion for a Certificate of Appealability\nrelating to the district court’s denial of relief under Rule 60(b). Then we will\nreview the motion for an order authorizing a successive habeas application.\n\n DISCUSSION\nI. Motion for COA on denial of Rule 60(b) motion\n “At the COA stage, the only question is whether the applicant has shown\nthat ‘jurists of reason could disagree with the district court’s resolution of his\nconstitutional claims or that jurists could conclude the issues presented are\nadequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S.\nCt. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).\nThis court reviews the district court’s order denying a Rule 60(b) motion for an\nabuse of discretion, so on a COA this court must determine whether reasonable\n 4\n\f Case: 19-20552 Document: 00515078728 Page: 5 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\njurists could conclude the district court abused its discretion. Id. at 777. While\na full merits inquiry is not proper in the COA analysis, we conduct a threshold\ninquiry to determine if the district court’s decision was debatable. Id. at 774.\n “[R]elief under Rule 60(b)(6) is available only in ‘extraordinary\ncircumstances.’” Id. at 777 (quoting Gonzales v. Crosby, 545 U.S. 524, 535\n(2005)). Extraordinary circumstances “will rarely occur in the habeas context.”\nGonzalez, 545 U.S. at 535. The district court is permitted to consider a “wide\nrange of factors” in determining whether extraordinary circumstances are\npresent. Buck, 137 S. Ct. at 778. “These may include, in an appropriate case,\n‘the risk of injustice to the parties’ and ‘the risk of undermining the public’s\nconfidence in the judicial process.’” Id. (quoting Liljeberg v. Health Servs.\nAcquisition Corp., 486 U.S. 847, 863-64 (1988)). “Moreover, a Rule 60(b)(6)\nmovant must show that he can assert ‘a good claim or defense’ if his case is\nreopened.” Ramirez v. Davis, 19-70004, 2019 WL 2622147, at *6 (5th Cir. June\n26, 2019) (quoting Buck, 137 S. Ct. at 780).\n The district court concluded that Johnson’s motion was a valid Rule 60(b)\nmotion because it attacked a defect in the integrity of the prior federal habeas\nproceeding. See Gilkers v. Vannoy, 904 F.3d 336, 344 (5th Cir. 2018). That\ndefect was McCann’s ineffective assistance and conflicts of interest. Jurists of\nreason would not conclude that the district court abused its discretion in\nfinding Johnson’s motion to be a true Rule 60(b) motion.\n The district court also determined that Johnson’s motion was timely\nbecause newly appointed counsel filed the motion within six months after\nappointment as co-counsel and very shortly after original habeas counsel was\nremoved. The question of timeliness is based on the “facts and circumstances\nof the case.” Ramirez, 2019 WL 2622147, at *5 (quotation omitted).\n\n\n 5\n\f Case: 19-20552 Document: 00515078728 Page: 6 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\n Johnson challenges here the district court’s denial of his Rule 60(b)\nmotion based on its finding that there were not extraordinary circumstances\njustifying reopening the judgment. The district court determined that Johnson\nhad properly alleged a defect in the integrity of his proceeding but concluded\nthat he had failed to demonstrate extraordinary circumstances, basing its\nopinion primarily on Johnson’s failure to plead any meritorious defaulted IATC\nclaims. Johnson claims that the district court unnecessarily narrowed the wide\nrange of factors that should have been considered, focusing only on whether\nJohnson described a meritorious IATC claim that was defaulted and whether\nJohnson had pled that his federal habeas proceeding was deficient.\n Johnson claims that under the COA standard, jurists of reason could\ndebate whether the district court abused its discretion in concluding that\nJohnson needed to present the merits of a defaulted IATC claim. Johnson\nargues that the question under Rule 60(b) is not whether there is a meritorious\nhabeas claim if he was represented by conflict-free counsel, but whether his\nprevious counsel McCann’s performance was so deficient that he failed to\nprovide the quality of representation that 18 U.S.C. § 3599 guarantees.\nJohnson’s claim is that McCann’s representation fell so far below the standards\nof Section 3599 that his case presents extraordinary circumstances.\n Johnson also claims that the district court, which based its decision on\nthe lack of any debatable defaulted IATC claim, has placed habeas applicants\nin an impossible situation. Johnson argues that requiring him to identify and\nlitigate the substantive merit and procedural defenses of defaulted IATC\nclaims would effectively require Mr. Johnson to transform his Rule 60(b)\nmotion into a successive petition.\n Finally, Johnson argues that reasonable jurists could debate whether the\ndistrict court abused its discretion by failing to address McCann’s ethical\n 6\n\f Case: 19-20552 Document: 00515078728 Page: 7 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nviolations. Johnson claims that McCann violated multiple ethical rules,\nincluding the duty of candor for not explaining his conflict of interest and the\nduty of loyalty for not remedying the conflict.\n Responding to these arguments, we point out that having conflicted\ncounsel is not enough to obtain relief under Rule 60(b). See Raby v. Davis, 907\nF.3d 880, 884 (5th Cir. 2018). The Supreme Court explained that even if it is\nshown to be debatable that state habeas counsel was constitutionally\nineffective, there is another “significant element” of a Rule 60(b)(6) motion: the\nclaim must have “some merit.” Buck, 137 S. Ct. at 780. The Court elaborated\nthat this means that the movant must show “a good claim or defense” because\nthat “is a precondition of Rule 60(b)(6) relief.” Id. (second quotation from 11\nWRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2857).\n The district court properly held that Johnson fell short on this significant\nrequirement. In the reply brief, current counsel mentioned a few potentially\nmeritorious claims that were previously defaulted but failed to brief them in\nany detail whatsoever. The district court stated that it had directed the\nconflict-free attorneys to “scour the record” for Strickland claims that meet the\nprerequisites for Martinez and Trevino, but there were no identified\n“procedural default[s] that would otherwise bar a federal habeas court from\nhearing a substantial claim of ineffective assistance at trial.” Jennings, 760 F.\nApp’x 319, 324 (5th Cir. 2019) (citations omitted). Our finding here is\nconsistent with Buck’s directive that we not delve too deeply into the\nunderlying merits of a claim, because none was presented. 137 S. Ct. at 774.\nFurthermore, in a deficient representation case such as this, there needed to\nbe some factor besides the representation. See Id. at 777-780 (finding that\nMartinez/Trevino was one significant element but relying in significant part on\nother circumstances such as race being a basis for the verdict). Johnson failed\n 7\n\f Case: 19-20552 Document: 00515078728 Page: 8 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nto brief these claims, and so we find that reasonable jurists would not debate\nthe district court’s decision that Johnson’s Martinez and Trevino conflict\narguments were inadequate to show exceptional circumstances.\n As to Johnson’s argument that the district court ignored his claims about\nMcCann’s alleged deficient performance, the district court stated that Rule\n60(b) relief is ordinarily not appropriate in the habeas context. Buck, 137 S.\nCt. at 777. If there were no underlying meritorious waived claims, then it can\nhardly be argued that there is a “risk of injustice” to Johnson because he did\nnot argue he would be entitled to any form of relief if his case were reopened.\nSee Liljeberg, 486 U.S. at 863-864 (cited in Buck, 137 S. Ct. at 778).\nFurthermore, in other cases where habeas counsel was deficient for omitting\ncertain claims, the Supreme Court has stated that such an attack “ordinarily\ndoes not go to the integrity of the proceedings.” Gonzales v. Crosby, 545 U.S.\nat 532 n.5. Although Johnson attempts to recast McCann’s actions as choices,\nnot omissions, the thrust of the logic still applies: McCann’s alleged deficient\nperformance was not itself sufficient to constitute exceptional circumstances.\n Reasonable jurists would not debate that the district court did not abuse\nits discretion in concluding that Johnson’s claims did not present extraordinary\ncircumstances. This is because Johnson failed to brief any waived claims\nsufficient to allow the district court to determine whether any of them had\nsome merit. Johnson also fails to provide us any authority that Section 3599\nhas ever provided relief pursuant to Rule 60(b). In sum, reasonable jurists\nwould not debate that the district court did not abuse its discretion in denying\nJohnson’s Rule 60(b) motion.\n Johnson’s motion for a COA is DENIED.\n\n\n\n\n 8\n\f Case: 19-20552 Document: 00515078728 Page: 9 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nII. Motion for Successive Application\n We review a motion for the filing of a successive habeas application to\ndetermine if the applicant makes a prima facie showing that he has met the\nrequirements of Section 2244. 28 U.S.C. § 2244(b)(3)(C). A prima facie\nshowing is “simply a sufficient showing of possible merit to warrant a fuller\nexploration by the district court.” In re Morris, 328 F.3d 739, 740 (5th Cir.\n2003) (quoting Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997)).\n A person in custody under a state-court judgment who moves to file a\nsuccessive application for a writ of habeas corpus in federal court must satisfy\nthese requirements:\n (1) A claim presented in a second or successive habeas\n corpus application under section 2254 that was presented in a\n prior application shall be dismissed.\n (2) A claim presented in a second or successive habeas corpus\n application under section 2254 that was not presented in a prior\n application shall be dismissed unless-\n (A) the applicant shows that the claim relies on a new\n rule of constitutional law, made retroactive to cases on\n collateral review by the Supreme Court, that was previously\n unavailable; or\n (B)(i) the factual predicate for the claim could not have\n been discovered previously through the exercise of due\n diligence; and\n (ii) the facts underlying the claim, if proven and\n viewed in light of the evidence as a whole, would be sufficient\n to establish by clear and convincing evidence that, but for\n constitutional error, no reasonable factfinder would have\n found the applicant guilty of the underlying offense.\n28 U.S.C. § 2244(b).\n Johnson’s two primary arguments in support of his Atkins claim are that\nhis only recently discharged counsel had a conflict of interest because he is the\n\n\n 9\n\f Case: 19-20552 Document: 00515078728 Page: 10 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\none whose ineffectiveness in state habeas needed to be challenged, and that\nrecent changes to the medical standards for determining intellectual disability\nbenefit him. Applying Section 2244(b)(2)(A), Johnson argues that Atkins is a\nnew rule of constitutional law that is retroactive and that his claim was\npreviously unavailable because the latest professional diagnostic manual\nchanged the framework for intellectual disability. 1\n At trial, Johnson was found not to be intellectually disabled. This was\nunder an earlier manual, DSM-IV-TR, which relied on Johnson’s IQ score that\nwas above 70. 2 The latest DSM-5 manual changed the diagnostic framework\nfor intellectual disability. Higher IQ scores no longer bar a diagnosis of an\nintellectual disability. Dr. Daniel A. Martell concluded that as of July 31, 2019,\nJohnson “meets the criteria for a diagnosis of Intellectual Disability” under the\nDSM-5. In 2019, Johnson scored 70 on a full-scale WAIS-IV IQ test.\n First, Johnson must show that his claim was not presented in a prior\nfederal application. 28 U.S.C. § 2244(b)(1). The State concedes that it was not.\nThus, Johnson has met the requirements of Section 2244(b)(1).\n Second, “Atkins created a new rule of constitutional law . . . made\nretroactive to cases on collateral review by the Supreme Court.” In re\nCampbell, 750 F.3d 523, 530 (5th Cir. 2014). As is obvious, though, Atkins was\ndecided long before Johnson even committed his crimes. A meaningful hurdle\nfor Johnson is to demonstrate why we should consider that case to be\n\n\n\n 1 Johnson also argues that his claim satisfies Section 2244(b)(2)(B), dealing with the\nfactual predicates for his claims. We conclude that the arguments and evidence before us\nsatisfy only Section 2244(b)(1).\n 2 The manuals express current medical standards for defining intellectual disability.\n\n“Reflecting improved understanding over time, . . . current manuals offer ‘the best available\ndescription of how mental disorders are expressed and can be recognized by trained\nclinicians.’” Moore v. Texas, 137 S. Ct. 1039, 1053 (2017) (quoting the DSM-5 and noting that\ncurrent medical standards constrain a state’s definition of what is an intellectual disability).\n 10\n\f Case: 19-20552 Document: 00515078728 Page: 11 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nretroactive as to him. The State argues that it is not. We hold to the contrary,\ncounterintuitively perhaps but not unreasonably, with the full weight of our\nconclusion being borne by this court’s recent decision in In re Cathey, 857 F.3d\n221 (5th Cir. 2017). We discuss that case next.\n\n A. Claim was previously unavailable\n We analyze whether Johnson’s “claim relies on a new rule of\nconstitutional law, made retroactive to cases on collateral review by the\nSupreme Court, that was previously unavailable.” § 2244(b)(2)(A).\n In Cathey, the determination before trial that the defendant had an IQ\nof 77 meant his IQ was too high for intellectual disability. In re Cathey, 857\nF.3d at 230. Upon Cathey’s admission to prison, though, which was pre-Atkins,\nan IQ test was given to him that supported that his IQ was about 73, within\nthe range of error for sufficient intellectual disability to be exempt from the\ndeath penalty. Id. at 232. For disputed reasons, the documents for that test\ndid not become available to the inmate and counsel until at least 12 years after\nhis conviction. Id. Further, it was 9 years after Cathey’s conviction that courts\nrecognized as viable a theory called the Flynn Effect which supported that IQ\nscores could be inflated for certain reasons. Id. at 227, 229-33. Finally, any\nauthority for making an IQ of 70 a ceiling for intellectual disability was\nrejected in 2014 when the Supreme Court held that there could not be a\nmandatory IQ number cutoff for consideration of intellectual disability. See\nHall v. Florida, 572 U.S. 701, 721-22 (2014); In re Cathey, 857 F.3d at 237-38.\n For all these reasons, even though when Cathey filed his initial state and\nfederal habeas applications there was not a claim “with some possibility of\nmerit” under Atkins, there later was a possible claim. In re Cathey, 857 F.3d\nat 232-33, 237-38. To be clear, it was more than just a reassessment by medical\nprofessionals of this inmate’s particular mental abilities. The significant\n 11\n\f Case: 19-20552 Document: 00515078728 Page: 12 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nchange was in the medical methodology for evaluating the relevant disabilities\nand in courts’ recognition of those changes.\n Those facts amounted at least to a prima facie showing that Atkins was\npreviously unavailable as required by Section 2244(b)(2)(A). Id. at 233. We\ndid not separately analyze whether it was enough that Atkins in a generic\nsense was a rule of constitutional law, made retroactive to cases on collateral\nreview by the Supreme Court, even though it was not so clearly retroactive in\nits application to Cathey. We accept here that the explicit conclusions in\nCathey necessarily decided that latter point as well and move on.\n The facts relevant to Johnson are quite similar. In 2013, six years after\nJohnson’s conviction, a new diagnostic manual called the DSM-5 for mental\ndisorders was released. The new diagnostic guidelines included significant\nchanges in the diagnosis of intellectual disability, which changed the focus\nfrom specific IQ scores to clinical judgment. The DSM-5 recognizes that an\nindividual with an IQ score over 70 may still qualify as intellectually disabled.\nThe previous diagnostic manual, in effect when Johnson filed his initial federal\nhabeas petition, did not classify Johnson as intellectually disabled because of\nhis IQ. Further bolstering that his claim was unavailable until now, Johnson\nunder a current full-scale IQ testing scored 70, within the Atkins range.\nJohnson also argues that although the DSM-5 was published before his habeas\npetition was denied for the first time in federal court, the DSM-5 was published\nonly 17 days before the denial, which renders his claim not feasible as an\namendment to his first petition. This change in diagnostic standards is\ncomparable to what allowed Cathey to proceed with his Atkins claim, which\nwere the judicial recognition of the Flynn Effect and the abandonment of any\nrule-of-thumb for a maximum relevant IQ level. Id. at 232-33.\n\n\n 12\n\f Case: 19-20552 Document: 00515078728 Page: 13 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\n The State’s principal argument about Cathey is that it was “effectively\noverruled by the Supreme Court in Shoop v. Hill, 139 S. Ct. 504, 507-08 (2019)\n(per curiam).” The court in Cathey relied significantly on Moore in evaluating\nthe prima facie showing of Cathey’s intellectual disability. In re Cathey, 857\nF.3d at 234-36. The Supreme Court in Moore had reviewed a Texas Court of\nCriminal Appeals decision which had not applied updated medical standards\nin evaluating an Atkins claim. Moore, 137 S. Ct. at 1053. Later, the Supreme\nCourt in Shoop determined that Moore was not clearly established law for the\npurposes of deciding whether a state court, whose decision was reached before\nMoore was decided, had unreasonably applied established law to a habeas\nclaim. Shoop, 139 S. Ct. at 507-08 (citing 28 U.S.C. § 2254(d)(1)). Shoop,\nthough, concerned the relitigation bar of Section 2254(d)(1), and it did not\noverrule Cathey, which concerned a prima facie showing under Section 2244.\n The State gives us little else on which to evaluate Cathey. Its sole\nsecondary argument is to distinguish the present case from Cathey in these\nways: Cathey’s conviction was final before Atkins was decided, while Johnson\ncommitted his crimes after Atkins; by the time Cathey was seeking Section\n2254 relief, Atkins had been decided but it was unclear how to present the\nclaim, uncertainties that did not apply to Johnson’s initial pursuit of federal\nhabeas; and Cathey showed greater diligence in bringing the Atkins claim than\ndid Johnson. These distinctions do not assist the State. The central problem\nhere is that both Cathey and now Johnson were presented — after all the\nevents which the State argues are distinctions — with reasons that an Atkins\nclaim is possibly meritorious when it had not previously been. The State\nseemingly recognizes the weakness of the distinctions, as after describing\nthem, it returns to the argument that Cathey has been overruled by Shoop.\n\n\n 13\n\f Case: 19-20552 Document: 00515078728 Page: 14 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\n What opens the door for Johnson is the Cathey decision, which has\nprecedentially determined that it is correct to equate legal availability with\nchanges in the standards for psychiatric evaluation of the key intellectual\ndisability factual issues raised by Atkins. We are applying that decision to a\nnew, but not meaningfully distinguishable, set of facts.\n\n B. Prima facie showing of disability\n The requirement of a prima facie showing comes from Section\n2244(b)(3)(C). Part of the showing is not only that his claim relies on\nretroactive Supreme Court precedent that was previously unavailable, but also\na prima facie showing that his claim has merit. See In re Cathey, 857 F.3d at\n226. To be intellectually disabled, an individual must establish intellectual-\nfunctioning deficits, adaptive deficits, and onset of those deficits when the\nindividual is a minor. See id. at 235. Dr. Daniel Martell concluded after\nextensive evaluation of Johnson, including IQ scores, neuropsychological\ntesting, and interviews with witnesses and Johnson, that Johnson has deficits\nin intellectual functioning. This is “confirmed by his IQ score of 70 on the\nWAIS-IV, IQ scores from tests administered pretrial, and the clear cognitive\ndeficits displayed on multiple neuropsychological tests.” Dr. Martell concluded\nalso that Johnson is at or below the bottom two percent of the population with\nregard to verbal learning and memory, that Johnson has frontal lobe\nimpairment, and that he has right hemisphere brain dysfunction.\nFurthermore, Dr. Watson, the trial expert, averred that he would no longer\ntestify that Johnson is not intellectually disabled based on Johnson’s IQ test\nscores from that time.\n Dr. Martell also concluded that Johnson exhibited deficits in all three\ndomains of adaptive functioning. Johnson repeated the second grade and\nstruggled with reading comprehension and problem solving. He also struggled\n 14\n\f Case: 19-20552 Document: 00515078728 Page: 15 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nto articulate words. In high school, Johnson functioned at the sixth-grade\nlevel. Johnson also exhibited deficits in the social domain, as he struggled to\nmake friends, was immature compared to peers, could not make eye contact,\ncould not hold a conversation, struggled to control his emotions, and could not\nread the emotions of others. Johnson’s deficiency in the practical domain was\nevidenced by his inability to follow bus or walking directions, struggles with\npersonal hygiene, and inability to manage money or his own affairs.\n Finally, Dr. Martell concluded that the onset of Johnson’s disability was\nduring the developmental period, through witness declarations, trial\ntestimony, and records.\n The State contends that we must review whether the Texas Court of\nCriminal Appeals “unreasonably determined that the facts set forth in\n[applicant]’s petition, if true, would not establish by clear and convincing\nevidence that no rational factfinder would fail to find [applicant] intellectually\ndisabled.” Busby v. Davis, 925 F.3d 699, 716 (5th Cir. 2019). The State\ncontends Johnson’s application here lacks merit because we should defer to the\nTexas Court of Criminal Appeals’ decisions. There are actually two state court\ndenials of Johnson’s Atkins claim. One was on April 29, 2019, the other on\nAugust 13, 2019. Both orders from the Court of Criminal Appeals stated that\nthe court dismissed the “application as an abuse of the writ without reviewing\nthe merits of the claims raised.” Both orders post-date Moore.\n Whether the decisions were on the merits is affected by recent caselaw\nthat recasts a similarly-phrased Texas decision as a merits one “when a\ndefendant who was convicted post-Atkins raises an Atkins claim for the first\ntime in a successive habeas application[; that is because] the Texas court must\ndetermine whether the defendant has asserted facts, which if true, would\nsufficiently state an Atkins claim to permit consideration of the successive\n 15\n\f Case: 19-20552 Document: 00515078728 Page: 16 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\npetition.” Busby, 925 F.3d at 707. We understand the Busby court to be\nreferring to the analysis the Texas court is to undertake in considering a\nsuccessive application under Texas Code of Criminal Procedure article 11.071,\nsection 5(a), and calling that merits-based. Regardless of what the best\nreading of Busby may be, the initial decision in this case is for the district court.\n We now consider whether Johnson must overcome the relitigation bar of\nSection 2254(d). Section 2244(b)(3)(C) states that a court “may authorize the\nfiling of a second or successive application only if it determines that the\napplication makes a prima facie showing that the application satisfies the\nrequirements of this subsection.” It makes no mention of Section 2254(d),\nwhich is in a different subsection. In re Cathey discussed this issue. 857 F.3d\nat 236. It recognized that Cathey’s Atkins claim was previously brought in a\nsuccessive habeas petition before the state court, but the court did not analyze\nthe relitigation bar of Section 2254(d) in making its Section 2244 analysis. Id.\nWe held that “the state court findings concerning the Atkins claim are wholly\nirrelevant to our inquiry as to whether [the petitioner] has made a prima facie\nshowing of entitlement to proceed with his federal habeas application, which is\nan inquiry distinct from the burden that [the petitioner] must bear in proving\nhis claim in the district court.” Id. (alteration in original) (quoting In re Wilson,\n442 F.3d 872, 878 (5th Cir. 2006)). We therefore conclude that Johnson is not\nyet required to address the Texas court’s decisions.\n Having determined that Johnson at this stage is not required to show\nthat the state court unreasonably determined the facts, we find that Johnson\nhas at least made a prima facie showing of intellectual disability.\n\n\n\n\n 16\n\f Case: 19-20552 Document: 00515078728 Page: 17 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\n C. Timeliness\n Johnson also must show that his application is timely. There is a one-\nyear statute of limitations on applications for a writ of habeas corpus running\nfrom the latest of:\n (A) the date on which the judgment became final by the conclusion\n of direct review or the expiration of the time for seeking such\n review;\n (B) the date on which the impediment to filing an application\n created by State action in violation of the Constitution or laws of\n the United States is removed, if the applicant was prevented from\n filing by such State action;\n (C) the date on which the constitutional right asserted was initially\n recognized by the Supreme Court, if the right has been newly\n recognized by the Supreme Court and made retroactively\n applicable to cases on collateral review; or\n (D) the date on which the factual predicate of the claim or claims\n presented could have been discovered through the exercise of due\n diligence.\n28 U.S.C. § 2244(d)(1).\n Johnson devotes his argument to the equitable tolling of the statute of\nlimitations, which he claims began to run on the date which the factual\npredicate of the claim or claims presented could have been discovered through\nthe exercise of due diligence. § 2244(d)(1)(D). The date that factual predicate\nbecame available was on May 18, 2013, with the publication of the DSM-5.\nThough that does not meet the one-year statute of limitations, Johnson argues\nhe is entitled to equitable tolling under Holland v. Florida, 560 U.S. 631, 649\n(2010). “To establish his entitlement to equitable tolling, a petitioner must\n‘sho[w] (1) that he has been pursuing his rights diligently, and (2) that some\nextraordinary circumstances stood in his way and prevented timely filing.’”\nManning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012) (quoting Holland, 560 U.S.\n\n 17\n\f Case: 19-20552 Document: 00515078728 Page: 18 Date Filed: 08/15/2019\n\n\n\n No. 19-20552\n c/w No. 19-70013\n\nat 649). As to diligence, Johnson claims that he was diligent in seeking counsel\nthat was not conflicted. He requested, pro se, conflict-free counsel once he was\naware of the conflict. He has also filed this motion within six months of\nappointment of conflict-free counsel.\n Johnson argues that the conflicts of his counsel were the extraordinary\ncircumstances sufficient to justify his delay. The Supreme Court held that “at\nleast sometimes, professional misconduct that fails to meet [a circuit court’s]\nstandard could nonetheless amount to egregious behavior and create an\nextraordinary circumstance that warrants equitable tolling.” Holland, 560\nU.S. at 651. Johnson also argues that equitable tolling is best decided at an\nevidentiary hearing because of its fact-bound nature. “[W]e also recognize the\nprudence, when faced with an equitable, often fact-intensive inquiry, of\nallowing the lower courts to undertake it in the first instance.” Id. at 654\n(quotation marks and citation omitted).\n Similarly, we have held that questions of equitable tolling are best left\nto the district court for the initial analysis. In re Cathey, 857 F.3d at 240-41.\nWe stated there that the delay gave us pause but determined further factual\ndevelopment was needed. Id. The district court here is also better positioned\nthan are we to gauge the timeliness of the motion for a successive application.\n We GRANT Johnson’s motion for authorization to file a successive\napplication for a writ of habeas corpus and STAY the execution. We DENY a\nCOA on the district court’s order rejecting the Rule 60(b) motion.\n\n\n\n\n 18\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In Re: Dexter Johnson\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 19-20552 Document: 00515078728 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n REVISED August 15, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 19-20552 August 14, 2019\\n Lyle W. Cayce\\nIn re: DEXTER JOHNSON, Clerk\\n\\n\\n Movant\\n--------------------------------------------------------------\\nConsolidated with 19-70013\\n\\nDEXTER JOHNSON,\\n\\n Petitioner - Appellant\\n\\nv.\\n\\nLORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL\\nJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,\\n\\n Respondent - Appellee\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.\\nLESLIE H. SOUTHWICK, Circuit Judge:\\n A Texas inmate whose execution is imminent has presented to us both a\\nrequest to review the district court’s denial of his Rule 60(b) motion for relief\\nfrom a prior judgment and also a motion for permission to file a successive\\n\\f Case: 19-20552 Document: 00515078728 Page: 2 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\napplication for a writ of habeas corpus. We conclude there is no merit in the\\nappeal and DENY review. On the other hand, we conclude that the motion for\\npermission to file has demonstrated possible merit in a claim regarding a\\ncurrent intellectual disability that warrants full exploration by the district\\ncourt. We GRANT the motion and STAY the execution.\\n\\n\\n FACTUAL AND PROCEDURAL BACKGROUND\\n Dexter Johnson was convicted of the murder of Maria Aparece in the\\ncourse of attempting a robbery on June 13, 2007, and he was sentenced to\\ndeath. Far greater detail is given of the offense in Johnson v. Stephens, 617 F.\\nApp’x 293 (5th Cir. 2015). His conviction and sentence were affirmed on direct\\nappeal.\\n Patrick McCann was appointed as Johnson’s state habeas counsel.\\nJohnson filed a state application for writ of habeas corpus while his direct\\nappeal was pending. His state habeas claims were denied, and McCann did\\nnot raise an ineffective assistance of trial counsel (IATC) claim. That\\napplication also did not include a claim under Atkins v. Virginia, 536 U.S. 304\\n(2002). McCann continued to represent Johnson in federal habeas proceedings,\\nfiling an application one year later that was duplicative of the state habeas\\nclaims, plus one claim that Johnson was interrogated in violation of Edwards\\nv. Arizona, 451 U.S. 477 (1981). It also did not include an Atkins claim.\\n After Martinez v. Ryan, 566 U.S. 1 (2012), was decided, McCann filed a\\nmotion in federal court to stay and to abey Johnson’s proceeding to allow\\nexhaustion of his IATC claims or to amend his application under Martinez to\\nadd those claims. That claim alleged that trial counsel were ineffective for\\nfailing to present evidence of Johnson’s brain damage and mental illness\\n\\n\\n 2\\n\\f Case: 19-20552 Document: 00515078728 Page: 3 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nduring the guilt phase to show he could not form intent for murder and that\\nappellate counsel were ineffective for failing to raise IATC claims.\\n The district court ordered supplemental briefing on Trevino v. Thaler,\\n569 U.S. 413 (2013). It ultimately denied Johnson’s motion to stay and abey\\nor amend the federal application and Johnson’s request for habeas relief. The\\ndistrict court granted a Certificate of Appealability (COA) on Johnson’s claim\\nthat his custodial statement was admitted in violation of his Fifth Amendment\\nrights. We then affirmed the denial of habeas relief on his Fifth Amendment\\nclaim and denied an additional request for a COA. Johnson, 617 F. App’x at\\n305. Johnson sought Supreme Court review, which was denied. Johnson v.\\nStephens, 136 S. Ct. 980 (2016).\\n On June 4, 2017, Johnson filed a motion in the federal district court\\nrequesting a new trial. The court denied the motion and his motion for\\nreconsideration. Johnson requested a COA, which was denied by this court.\\nJohnson v. Davis, 746 F. App’x 375, 381 (5th Cir. 2018) (per curiam). The\\nSupreme Court again denied him a writ of certiorari.\\n On January 18, 2019, Johnson, pro se, requested a Federal Public\\nDefender (FPD) be appointed in his case because of the conflict of interest\\nbetween himself and McCann established after Martinez and Trevino.\\nMcCann filed an opposition under seal. Johnson then filed a pro se motion on\\nFebruary 1, 2019, again asking for independent counsel. On February 5, 2019,\\nthe court appointed a FPD, but McCann remained counsel as well. The FPD\\nrequested removal of McCann, which the State and McCann opposed.\\n Six days after the motion to remove him, McCann filed a single-issue\\nsuccessive habeas application in state court, which was denied April 29, 2019.\\nMcCann also filed a clemency petition. On April 30, 2019, the district court\\n\\n\\n 3\\n\\f Case: 19-20552 Document: 00515078728 Page: 4 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nstayed Johnson’s execution, noting “troubling concerns” about McCann.\\nMcCann withdrew two days later.\\n On June 24, 2019 Johnson filed a motion for relief from judgment under\\nFederal Rule of Civil Procedure 60(b). The district court denied the motion on\\nAugust 12, 2019 and did not certify any issue for appeal. Johnson immediately\\napplied for a certificate of appealability with this court.\\n On August 6, 2019, Johnson moved in state court to strike his second\\nsuccessive state habeas application, alleging that it was filed by McCann\\nwithout his permission. Along with that motion, he also filed a successive\\nhabeas application. The new habeas application was denied “as an abuse of\\nthe writ without reviewing the merits of the claims raised” on August 13, 2019.\\nThe motion to strike the prior application also was denied.\\n On August 8, 2019, Johnson also moved in this court under 28 U.S.C.\\n§ 2244 for an order authorizing the district court to consider a second or\\nsuccessive application for a writ of habeas corpus based on an Atkins claim.\\n We first discuss Johnson’s Motion for a Certificate of Appealability\\nrelating to the district court’s denial of relief under Rule 60(b). Then we will\\nreview the motion for an order authorizing a successive habeas application.\\n\\n DISCUSSION\\nI. Motion for COA on denial of Rule 60(b) motion\\n “At the COA stage, the only question is whether the applicant has shown\\nthat ‘jurists of reason could disagree with the district court’s resolution of his\\nconstitutional claims or that jurists could conclude the issues presented are\\nadequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S.\\nCt. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).\\nThis court reviews the district court’s order denying a Rule 60(b) motion for an\\nabuse of discretion, so on a COA this court must determine whether reasonable\\n 4\\n\\f Case: 19-20552 Document: 00515078728 Page: 5 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\njurists could conclude the district court abused its discretion. Id. at 777. While\\na full merits inquiry is not proper in the COA analysis, we conduct a threshold\\ninquiry to determine if the district court’s decision was debatable. Id. at 774.\\n “[R]elief under Rule 60(b)(6) is available only in ‘extraordinary\\ncircumstances.’” Id. at 777 (quoting Gonzales v. Crosby, 545 U.S. 524, 535\\n(2005)). Extraordinary circumstances “will rarely occur in the habeas context.”\\nGonzalez, 545 U.S. at 535. The district court is permitted to consider a “wide\\nrange of factors” in determining whether extraordinary circumstances are\\npresent. Buck, 137 S. Ct. at 778. “These may include, in an appropriate case,\\n‘the risk of injustice to the parties’ and ‘the risk of undermining the public’s\\nconfidence in the judicial process.’” Id. (quoting Liljeberg v. Health Servs.\\nAcquisition Corp., 486 U.S. 847, 863-64 (1988)). “Moreover, a Rule 60(b)(6)\\nmovant must show that he can assert ‘a good claim or defense’ if his case is\\nreopened.” Ramirez v. Davis, 19-70004, 2019 WL 2622147, at *6 (5th Cir. June\\n26, 2019) (quoting Buck, 137 S. Ct. at 780).\\n The district court concluded that Johnson’s motion was a valid Rule 60(b)\\nmotion because it attacked a defect in the integrity of the prior federal habeas\\nproceeding. See Gilkers v. Vannoy, 904 F.3d 336, 344 (5th Cir. 2018). That\\ndefect was McCann’s ineffective assistance and conflicts of interest. Jurists of\\nreason would not conclude that the district court abused its discretion in\\nfinding Johnson’s motion to be a true Rule 60(b) motion.\\n The district court also determined that Johnson’s motion was timely\\nbecause newly appointed counsel filed the motion within six months after\\nappointment as co-counsel and very shortly after original habeas counsel was\\nremoved. The question of timeliness is based on the “facts and circumstances\\nof the case.” Ramirez, 2019 WL 2622147, at *5 (quotation omitted).\\n\\n\\n 5\\n\\f Case: 19-20552 Document: 00515078728 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n Johnson challenges here the district court’s denial of his Rule 60(b)\\nmotion based on its finding that there were not extraordinary circumstances\\njustifying reopening the judgment. The district court determined that Johnson\\nhad properly alleged a defect in the integrity of his proceeding but concluded\\nthat he had failed to demonstrate extraordinary circumstances, basing its\\nopinion primarily on Johnson’s failure to plead any meritorious defaulted IATC\\nclaims. Johnson claims that the district court unnecessarily narrowed the wide\\nrange of factors that should have been considered, focusing only on whether\\nJohnson described a meritorious IATC claim that was defaulted and whether\\nJohnson had pled that his federal habeas proceeding was deficient.\\n Johnson claims that under the COA standard, jurists of reason could\\ndebate whether the district court abused its discretion in concluding that\\nJohnson needed to present the merits of a defaulted IATC claim. Johnson\\nargues that the question under Rule 60(b) is not whether there is a meritorious\\nhabeas claim if he was represented by conflict-free counsel, but whether his\\nprevious counsel McCann’s performance was so deficient that he failed to\\nprovide the quality of representation that 18 U.S.C. § 3599 guarantees.\\nJohnson’s claim is that McCann’s representation fell so far below the standards\\nof Section 3599 that his case presents extraordinary circumstances.\\n Johnson also claims that the district court, which based its decision on\\nthe lack of any debatable defaulted IATC claim, has placed habeas applicants\\nin an impossible situation. Johnson argues that requiring him to identify and\\nlitigate the substantive merit and procedural defenses of defaulted IATC\\nclaims would effectively require Mr. Johnson to transform his Rule 60(b)\\nmotion into a successive petition.\\n Finally, Johnson argues that reasonable jurists could debate whether the\\ndistrict court abused its discretion by failing to address McCann’s ethical\\n 6\\n\\f Case: 19-20552 Document: 00515078728 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nviolations. Johnson claims that McCann violated multiple ethical rules,\\nincluding the duty of candor for not explaining his conflict of interest and the\\nduty of loyalty for not remedying the conflict.\\n Responding to these arguments, we point out that having conflicted\\ncounsel is not enough to obtain relief under Rule 60(b). See Raby v. Davis, 907\\nF.3d 880, 884 (5th Cir. 2018). The Supreme Court explained that even if it is\\nshown to be debatable that state habeas counsel was constitutionally\\nineffective, there is another “significant element” of a Rule 60(b)(6) motion: the\\nclaim must have “some merit.” Buck, 137 S. Ct. at 780. The Court elaborated\\nthat this means that the movant must show “a good claim or defense” because\\nthat “is a precondition of Rule 60(b)(6) relief.” Id. (second quotation from 11\\nWRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2857).\\n The district court properly held that Johnson fell short on this significant\\nrequirement. In the reply brief, current counsel mentioned a few potentially\\nmeritorious claims that were previously defaulted but failed to brief them in\\nany detail whatsoever. The district court stated that it had directed the\\nconflict-free attorneys to “scour the record” for Strickland claims that meet the\\nprerequisites for Martinez and Trevino, but there were no identified\\n“procedural default[s] that would otherwise bar a federal habeas court from\\nhearing a substantial claim of ineffective assistance at trial.” Jennings, 760 F.\\nApp’x 319, 324 (5th Cir. 2019) (citations omitted). Our finding here is\\nconsistent with Buck’s directive that we not delve too deeply into the\\nunderlying merits of a claim, because none was presented. 137 S. Ct. at 774.\\nFurthermore, in a deficient representation case such as this, there needed to\\nbe some factor besides the representation. See Id. at 777-780 (finding that\\nMartinez/Trevino was one significant element but relying in significant part on\\nother circumstances such as race being a basis for the verdict). Johnson failed\\n 7\\n\\f Case: 19-20552 Document: 00515078728 Page: 8 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nto brief these claims, and so we find that reasonable jurists would not debate\\nthe district court’s decision that Johnson’s Martinez and Trevino conflict\\narguments were inadequate to show exceptional circumstances.\\n As to Johnson’s argument that the district court ignored his claims about\\nMcCann’s alleged deficient performance, the district court stated that Rule\\n60(b) relief is ordinarily not appropriate in the habeas context. Buck, 137 S.\\nCt. at 777. If there were no underlying meritorious waived claims, then it can\\nhardly be argued that there is a “risk of injustice” to Johnson because he did\\nnot argue he would be entitled to any form of relief if his case were reopened.\\nSee Liljeberg, 486 U.S. at 863-864 (cited in Buck, 137 S. Ct. at 778).\\nFurthermore, in other cases where habeas counsel was deficient for omitting\\ncertain claims, the Supreme Court has stated that such an attack “ordinarily\\ndoes not go to the integrity of the proceedings.” Gonzales v. Crosby, 545 U.S.\\nat 532 n.5. Although Johnson attempts to recast McCann’s actions as choices,\\nnot omissions, the thrust of the logic still applies: McCann’s alleged deficient\\nperformance was not itself sufficient to constitute exceptional circumstances.\\n Reasonable jurists would not debate that the district court did not abuse\\nits discretion in concluding that Johnson’s claims did not present extraordinary\\ncircumstances. This is because Johnson failed to brief any waived claims\\nsufficient to allow the district court to determine whether any of them had\\nsome merit. Johnson also fails to provide us any authority that Section 3599\\nhas ever provided relief pursuant to Rule 60(b). In sum, reasonable jurists\\nwould not debate that the district court did not abuse its discretion in denying\\nJohnson’s Rule 60(b) motion.\\n Johnson’s motion for a COA is DENIED.\\n\\n\\n\\n\\n 8\\n\\f Case: 19-20552 Document: 00515078728 Page: 9 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nII. Motion for Successive Application\\n We review a motion for the filing of a successive habeas application to\\ndetermine if the applicant makes a prima facie showing that he has met the\\nrequirements of Section 2244. 28 U.S.C. § 2244(b)(3)(C). A prima facie\\nshowing is “simply a sufficient showing of possible merit to warrant a fuller\\nexploration by the district court.” In re Morris, 328 F.3d 739, 740 (5th Cir.\\n2003) (quoting Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997)).\\n A person in custody under a state-court judgment who moves to file a\\nsuccessive application for a writ of habeas corpus in federal court must satisfy\\nthese requirements:\\n (1) A claim presented in a second or successive habeas\\n corpus application under section 2254 that was presented in a\\n prior application shall be dismissed.\\n (2) A claim presented in a second or successive habeas corpus\\n application under section 2254 that was not presented in a prior\\n application shall be dismissed unless-\\n (A) the applicant shows that the claim relies on a new\\n rule of constitutional law, made retroactive to cases on\\n collateral review by the Supreme Court, that was previously\\n unavailable; or\\n (B)(i) the factual predicate for the claim could not have\\n been discovered previously through the exercise of due\\n diligence; and\\n (ii) the facts underlying the claim, if proven and\\n viewed in light of the evidence as a whole, would be sufficient\\n to establish by clear and convincing evidence that, but for\\n constitutional error, no reasonable factfinder would have\\n found the applicant guilty of the underlying offense.\\n28 U.S.C. § 2244(b).\\n Johnson’s two primary arguments in support of his Atkins claim are that\\nhis only recently discharged counsel had a conflict of interest because he is the\\n\\n\\n 9\\n\\f Case: 19-20552 Document: 00515078728 Page: 10 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\none whose ineffectiveness in state habeas needed to be challenged, and that\\nrecent changes to the medical standards for determining intellectual disability\\nbenefit him. Applying Section 2244(b)(2)(A), Johnson argues that Atkins is a\\nnew rule of constitutional law that is retroactive and that his claim was\\npreviously unavailable because the latest professional diagnostic manual\\nchanged the framework for intellectual disability. 1\\n At trial, Johnson was found not to be intellectually disabled. This was\\nunder an earlier manual, DSM-IV-TR, which relied on Johnson’s IQ score that\\nwas above 70. 2 The latest DSM-5 manual changed the diagnostic framework\\nfor intellectual disability. Higher IQ scores no longer bar a diagnosis of an\\nintellectual disability. Dr. Daniel A. Martell concluded that as of July 31, 2019,\\nJohnson “meets the criteria for a diagnosis of Intellectual Disability” under the\\nDSM-5. In 2019, Johnson scored 70 on a full-scale WAIS-IV IQ test.\\n First, Johnson must show that his claim was not presented in a prior\\nfederal application. 28 U.S.C. § 2244(b)(1). The State concedes that it was not.\\nThus, Johnson has met the requirements of Section 2244(b)(1).\\n Second, “Atkins created a new rule of constitutional law . . . made\\nretroactive to cases on collateral review by the Supreme Court.” In re\\nCampbell, 750 F.3d 523, 530 (5th Cir. 2014). As is obvious, though, Atkins was\\ndecided long before Johnson even committed his crimes. A meaningful hurdle\\nfor Johnson is to demonstrate why we should consider that case to be\\n\\n\\n\\n 1 Johnson also argues that his claim satisfies Section 2244(b)(2)(B), dealing with the\\nfactual predicates for his claims. We conclude that the arguments and evidence before us\\nsatisfy only Section 2244(b)(1).\\n 2 The manuals express current medical standards for defining intellectual disability.\\n\\n“Reflecting improved understanding over time, . . . current manuals offer ‘the best available\\ndescription of how mental disorders are expressed and can be recognized by trained\\nclinicians.’” Moore v. Texas, 137 S. Ct. 1039, 1053 (2017) (quoting the DSM-5 and noting that\\ncurrent medical standards constrain a state’s definition of what is an intellectual disability).\\n 10\\n\\f Case: 19-20552 Document: 00515078728 Page: 11 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nretroactive as to him. The State argues that it is not. We hold to the contrary,\\ncounterintuitively perhaps but not unreasonably, with the full weight of our\\nconclusion being borne by this court’s recent decision in In re Cathey, 857 F.3d\\n221 (5th Cir. 2017). We discuss that case next.\\n\\n A. Claim was previously unavailable\\n We analyze whether Johnson’s “claim relies on a new rule of\\nconstitutional law, made retroactive to cases on collateral review by the\\nSupreme Court, that was previously unavailable.” § 2244(b)(2)(A).\\n In Cathey, the determination before trial that the defendant had an IQ\\nof 77 meant his IQ was too high for intellectual disability. In re Cathey, 857\\nF.3d at 230. Upon Cathey’s admission to prison, though, which was pre-Atkins,\\nan IQ test was given to him that supported that his IQ was about 73, within\\nthe range of error for sufficient intellectual disability to be exempt from the\\ndeath penalty. Id. at 232. For disputed reasons, the documents for that test\\ndid not become available to the inmate and counsel until at least 12 years after\\nhis conviction. Id. Further, it was 9 years after Cathey’s conviction that courts\\nrecognized as viable a theory called the Flynn Effect which supported that IQ\\nscores could be inflated for certain reasons. Id. at 227, 229-33. Finally, any\\nauthority for making an IQ of 70 a ceiling for intellectual disability was\\nrejected in 2014 when the Supreme Court held that there could not be a\\nmandatory IQ number cutoff for consideration of intellectual disability. See\\nHall v. Florida, 572 U.S. 701, 721-22 (2014); In re Cathey, 857 F.3d at 237-38.\\n For all these reasons, even though when Cathey filed his initial state and\\nfederal habeas applications there was not a claim “with some possibility of\\nmerit” under Atkins, there later was a possible claim. In re Cathey, 857 F.3d\\nat 232-33, 237-38. To be clear, it was more than just a reassessment by medical\\nprofessionals of this inmate’s particular mental abilities. The significant\\n 11\\n\\f Case: 19-20552 Document: 00515078728 Page: 12 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nchange was in the medical methodology for evaluating the relevant disabilities\\nand in courts’ recognition of those changes.\\n Those facts amounted at least to a prima facie showing that Atkins was\\npreviously unavailable as required by Section 2244(b)(2)(A). Id. at 233. We\\ndid not separately analyze whether it was enough that Atkins in a generic\\nsense was a rule of constitutional law, made retroactive to cases on collateral\\nreview by the Supreme Court, even though it was not so clearly retroactive in\\nits application to Cathey. We accept here that the explicit conclusions in\\nCathey necessarily decided that latter point as well and move on.\\n The facts relevant to Johnson are quite similar. In 2013, six years after\\nJohnson’s conviction, a new diagnostic manual called the DSM-5 for mental\\ndisorders was released. The new diagnostic guidelines included significant\\nchanges in the diagnosis of intellectual disability, which changed the focus\\nfrom specific IQ scores to clinical judgment. The DSM-5 recognizes that an\\nindividual with an IQ score over 70 may still qualify as intellectually disabled.\\nThe previous diagnostic manual, in effect when Johnson filed his initial federal\\nhabeas petition, did not classify Johnson as intellectually disabled because of\\nhis IQ. Further bolstering that his claim was unavailable until now, Johnson\\nunder a current full-scale IQ testing scored 70, within the Atkins range.\\nJohnson also argues that although the DSM-5 was published before his habeas\\npetition was denied for the first time in federal court, the DSM-5 was published\\nonly 17 days before the denial, which renders his claim not feasible as an\\namendment to his first petition. This change in diagnostic standards is\\ncomparable to what allowed Cathey to proceed with his Atkins claim, which\\nwere the judicial recognition of the Flynn Effect and the abandonment of any\\nrule-of-thumb for a maximum relevant IQ level. Id. at 232-33.\\n\\n\\n 12\\n\\f Case: 19-20552 Document: 00515078728 Page: 13 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n The State’s principal argument about Cathey is that it was “effectively\\noverruled by the Supreme Court in Shoop v. Hill, 139 S. Ct. 504, 507-08 (2019)\\n(per curiam).” The court in Cathey relied significantly on Moore in evaluating\\nthe prima facie showing of Cathey’s intellectual disability. In re Cathey, 857\\nF.3d at 234-36. The Supreme Court in Moore had reviewed a Texas Court of\\nCriminal Appeals decision which had not applied updated medical standards\\nin evaluating an Atkins claim. Moore, 137 S. Ct. at 1053. Later, the Supreme\\nCourt in Shoop determined that Moore was not clearly established law for the\\npurposes of deciding whether a state court, whose decision was reached before\\nMoore was decided, had unreasonably applied established law to a habeas\\nclaim. Shoop, 139 S. Ct. at 507-08 (citing 28 U.S.C. § 2254(d)(1)). Shoop,\\nthough, concerned the relitigation bar of Section 2254(d)(1), and it did not\\noverrule Cathey, which concerned a prima facie showing under Section 2244.\\n The State gives us little else on which to evaluate Cathey. Its sole\\nsecondary argument is to distinguish the present case from Cathey in these\\nways: Cathey’s conviction was final before Atkins was decided, while Johnson\\ncommitted his crimes after Atkins; by the time Cathey was seeking Section\\n2254 relief, Atkins had been decided but it was unclear how to present the\\nclaim, uncertainties that did not apply to Johnson’s initial pursuit of federal\\nhabeas; and Cathey showed greater diligence in bringing the Atkins claim than\\ndid Johnson. These distinctions do not assist the State. The central problem\\nhere is that both Cathey and now Johnson were presented — after all the\\nevents which the State argues are distinctions — with reasons that an Atkins\\nclaim is possibly meritorious when it had not previously been. The State\\nseemingly recognizes the weakness of the distinctions, as after describing\\nthem, it returns to the argument that Cathey has been overruled by Shoop.\\n\\n\\n 13\\n\\f Case: 19-20552 Document: 00515078728 Page: 14 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n What opens the door for Johnson is the Cathey decision, which has\\nprecedentially determined that it is correct to equate legal availability with\\nchanges in the standards for psychiatric evaluation of the key intellectual\\ndisability factual issues raised by Atkins. We are applying that decision to a\\nnew, but not meaningfully distinguishable, set of facts.\\n\\n B. Prima facie showing of disability\\n The requirement of a prima facie showing comes from Section\\n2244(b)(3)(C). Part of the showing is not only that his claim relies on\\nretroactive Supreme Court precedent that was previously unavailable, but also\\na prima facie showing that his claim has merit. See In re Cathey, 857 F.3d at\\n226. To be intellectually disabled, an individual must establish intellectual-\\nfunctioning deficits, adaptive deficits, and onset of those deficits when the\\nindividual is a minor. See id. at 235. Dr. Daniel Martell concluded after\\nextensive evaluation of Johnson, including IQ scores, neuropsychological\\ntesting, and interviews with witnesses and Johnson, that Johnson has deficits\\nin intellectual functioning. This is “confirmed by his IQ score of 70 on the\\nWAIS-IV, IQ scores from tests administered pretrial, and the clear cognitive\\ndeficits displayed on multiple neuropsychological tests.” Dr. Martell concluded\\nalso that Johnson is at or below the bottom two percent of the population with\\nregard to verbal learning and memory, that Johnson has frontal lobe\\nimpairment, and that he has right hemisphere brain dysfunction.\\nFurthermore, Dr. Watson, the trial expert, averred that he would no longer\\ntestify that Johnson is not intellectually disabled based on Johnson’s IQ test\\nscores from that time.\\n Dr. Martell also concluded that Johnson exhibited deficits in all three\\ndomains of adaptive functioning. Johnson repeated the second grade and\\nstruggled with reading comprehension and problem solving. He also struggled\\n 14\\n\\f Case: 19-20552 Document: 00515078728 Page: 15 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nto articulate words. In high school, Johnson functioned at the sixth-grade\\nlevel. Johnson also exhibited deficits in the social domain, as he struggled to\\nmake friends, was immature compared to peers, could not make eye contact,\\ncould not hold a conversation, struggled to control his emotions, and could not\\nread the emotions of others. Johnson’s deficiency in the practical domain was\\nevidenced by his inability to follow bus or walking directions, struggles with\\npersonal hygiene, and inability to manage money or his own affairs.\\n Finally, Dr. Martell concluded that the onset of Johnson’s disability was\\nduring the developmental period, through witness declarations, trial\\ntestimony, and records.\\n The State contends that we must review whether the Texas Court of\\nCriminal Appeals “unreasonably determined that the facts set forth in\\n[applicant]’s petition, if true, would not establish by clear and convincing\\nevidence that no rational factfinder would fail to find [applicant] intellectually\\ndisabled.” Busby v. Davis, 925 F.3d 699, 716 (5th Cir. 2019). The State\\ncontends Johnson’s application here lacks merit because we should defer to the\\nTexas Court of Criminal Appeals’ decisions. There are actually two state court\\ndenials of Johnson’s Atkins claim. One was on April 29, 2019, the other on\\nAugust 13, 2019. Both orders from the Court of Criminal Appeals stated that\\nthe court dismissed the “application as an abuse of the writ without reviewing\\nthe merits of the claims raised.” Both orders post-date Moore.\\n Whether the decisions were on the merits is affected by recent caselaw\\nthat recasts a similarly-phrased Texas decision as a merits one “when a\\ndefendant who was convicted post-Atkins raises an Atkins claim for the first\\ntime in a successive habeas application[; that is because] the Texas court must\\ndetermine whether the defendant has asserted facts, which if true, would\\nsufficiently state an Atkins claim to permit consideration of the successive\\n 15\\n\\f Case: 19-20552 Document: 00515078728 Page: 16 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\npetition.” Busby, 925 F.3d at 707. We understand the Busby court to be\\nreferring to the analysis the Texas court is to undertake in considering a\\nsuccessive application under Texas Code of Criminal Procedure article 11.071,\\nsection 5(a), and calling that merits-based. Regardless of what the best\\nreading of Busby may be, the initial decision in this case is for the district court.\\n We now consider whether Johnson must overcome the relitigation bar of\\nSection 2254(d). Section 2244(b)(3)(C) states that a court “may authorize the\\nfiling of a second or successive application only if it determines that the\\napplication makes a prima facie showing that the application satisfies the\\nrequirements of this subsection.” It makes no mention of Section 2254(d),\\nwhich is in a different subsection. In re Cathey discussed this issue. 857 F.3d\\nat 236. It recognized that Cathey’s Atkins claim was previously brought in a\\nsuccessive habeas petition before the state court, but the court did not analyze\\nthe relitigation bar of Section 2254(d) in making its Section 2244 analysis. Id.\\nWe held that “the state court findings concerning the Atkins claim are wholly\\nirrelevant to our inquiry as to whether [the petitioner] has made a prima facie\\nshowing of entitlement to proceed with his federal habeas application, which is\\nan inquiry distinct from the burden that [the petitioner] must bear in proving\\nhis claim in the district court.” Id. (alteration in original) (quoting In re Wilson,\\n442 F.3d 872, 878 (5th Cir. 2006)). We therefore conclude that Johnson is not\\nyet required to address the Texas court’s decisions.\\n Having determined that Johnson at this stage is not required to show\\nthat the state court unreasonably determined the facts, we find that Johnson\\nhas at least made a prima facie showing of intellectual disability.\\n\\n\\n\\n\\n 16\\n\\f Case: 19-20552 Document: 00515078728 Page: 17 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\n C. Timeliness\\n Johnson also must show that his application is timely. There is a one-\\nyear statute of limitations on applications for a writ of habeas corpus running\\nfrom the latest of:\\n (A) the date on which the judgment became final by the conclusion\\n of direct review or the expiration of the time for seeking such\\n review;\\n (B) the date on which the impediment to filing an application\\n created by State action in violation of the Constitution or laws of\\n the United States is removed, if the applicant was prevented from\\n filing by such State action;\\n (C) the date on which the constitutional right asserted was initially\\n recognized by the Supreme Court, if the right has been newly\\n recognized by the Supreme Court and made retroactively\\n applicable to cases on collateral review; or\\n (D) the date on which the factual predicate of the claim or claims\\n presented could have been discovered through the exercise of due\\n diligence.\\n28 U.S.C. § 2244(d)(1).\\n Johnson devotes his argument to the equitable tolling of the statute of\\nlimitations, which he claims began to run on the date which the factual\\npredicate of the claim or claims presented could have been discovered through\\nthe exercise of due diligence. § 2244(d)(1)(D). The date that factual predicate\\nbecame available was on May 18, 2013, with the publication of the DSM-5.\\nThough that does not meet the one-year statute of limitations, Johnson argues\\nhe is entitled to equitable tolling under Holland v. Florida, 560 U.S. 631, 649\\n(2010). “To establish his entitlement to equitable tolling, a petitioner must\\n‘sho[w] (1) that he has been pursuing his rights diligently, and (2) that some\\nextraordinary circumstances stood in his way and prevented timely filing.’”\\nManning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012) (quoting Holland, 560 U.S.\\n\\n 17\\n\\f Case: 19-20552 Document: 00515078728 Page: 18 Date Filed: 08/15/2019\\n\\n\\n\\n No. 19-20552\\n c/w No. 19-70013\\n\\nat 649). As to diligence, Johnson claims that he was diligent in seeking counsel\\nthat was not conflicted. He requested, pro se, conflict-free counsel once he was\\naware of the conflict. He has also filed this motion within six months of\\nappointment of conflict-free counsel.\\n Johnson argues that the conflicts of his counsel were the extraordinary\\ncircumstances sufficient to justify his delay. The Supreme Court held that “at\\nleast sometimes, professional misconduct that fails to meet [a circuit court’s]\\nstandard could nonetheless amount to egregious behavior and create an\\nextraordinary circumstance that warrants equitable tolling.” Holland, 560\\nU.S. at 651. Johnson also argues that equitable tolling is best decided at an\\nevidentiary hearing because of its fact-bound nature. “[W]e also recognize the\\nprudence, when faced with an equitable, often fact-intensive inquiry, of\\nallowing the lower courts to undertake it in the first instance.” Id. at 654\\n(quotation marks and citation omitted).\\n Similarly, we have held that questions of equitable tolling are best left\\nto the district court for the initial analysis. In re Cathey, 857 F.3d at 240-41.\\nWe stated there that the delay gave us pause but determined further factual\\ndevelopment was needed. Id. The district court here is also better positioned\\nthan are we to gauge the timeliness of the motion for a successive application.\\n We GRANT Johnson’s motion for authorization to file a successive\\napplication for a writ of habeas corpus and STAY the execution. We DENY a\\nCOA on the district court’s order rejecting the Rule 60(b) motion.\\n\\n\\n\\n\\n 18\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3671,"cells":{"id":{"kind":"number","value":4648823,"string":"4,648,823"},"name":{"kind":"string","value":"Tarsia WILLIAMS; Breck Williams, Plaintiffs - Appellants v. TAYLOR SEIDENBACH, INCORPORATED, Defendant - Appellee Tarsia Williams; Breck Williams, Plaintiffs - Appellants v. McCarty Corporation, Defendant - Appellee"},"name_abbreviation":{"kind":"string","value":"Frank Williams, Jr. v. Lockheed Martin Corp"},"decision_date":{"kind":"string","value":"2019-08-15"},"docket_number":{"kind":"string","value":"18-31159; C/w 18-31161"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Haynes, Graves, Duncan\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9889090/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9889091/\", \"author_raw\": \"\"}, {\"author\": \"STUART KYLE DUNCAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-31159 Document: 00515078157 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-31159 August 15, 2019\\n Lyle W. Cayce\\n Clerk\\nTARSIA WILLIAMS; BRECK WILLIAMS,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nTAYLOR SEIDENBACH, INCORPORATED,\\n\\n Defendant - Appellee\\n\\nConsolidated for argument with 18-31161\\n\\nTARSIA WILLIAMS; BRECK WILLIAMS,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nMCCARTY CORPORATION,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore HAYNES, GRAVES, and DUNCAN, Circuit Judges.\\nSTUART KYLE DUNCAN, Circuit Judge:\\n\\n Case: 18-31159 Document: 00515078157 Page: 2 Date Filed: 08/15/2019\\n\\n\\n No. 18-31159\\n c/w No. 18-31161\\n For the second time, we address whether we have appellate jurisdiction\\nin this case. We previously recounted the case’s convoluted history, see\\nWilliams v. Taylor-Seidenbach, Inc., 748 F. App’x 584 (5th Cir. 2018) (per\\ncuriam) (“Williams I”), and here provide only the relevant details. This case\\narises from a 2008 state court suit by Frank Williams, Jr.,1 alleging he contracted\\nmesothelioma from asbestos while working at a NASA facility in Louisiana. He\\nsued multiple defendants, including Appellees Taylor-Seidenbach and McCarty.\\nThe case was removed to the Eastern District of Louisiana and later transferred\\nto the Eastern District of Pennsylvania’s multi-district asbestos litigation\\n(“MDL”). In June 2014, the MDL court granted summary judgment to several\\ndefendants including Appellees—based on insufficient evidence of causation—\\nand subsequently remanded the entire case back to the Eastern District of\\nLouisiana.\\n In November 2016, Williams moved to voluntarily dismiss the four\\nremaining defendants. As to one defendant, Williams moved to dismiss with\\nprejudice; as to the three others, Williams did not specify whether dismissal\\nwas with or without prejudice. Accordingly, the district court dismissed one\\ndefendant with prejudice and the other three without specifying either way.\\nWilliams then appealed to this court, seeking review of the MDL court’s\\nsummary judgment grants and other orders.\\n We dismissed the appeal for lack of jurisdiction. Williams I, 748 F. App’x\\n584. We applied the “settled rule that ‘appellate jurisdiction over a non-final\\norder cannot be created by dismissing the remaining claims without prejudice[.]’”\\n748 F. App’x at 587 (quoting Swope v. Columbian Chemicals Co., 281 F.3d 185,\\n192 (5th Cir. 2002)). The district court’s order dismissing three of the remaining\\n\\n\\n Frank Williams passed away during the litigation, and his children, Tarsia and\\n 1\\n\\nBreck Williams, were substituted for him. We refer to the plaintiffs collectively as “Williams.”\\n\\n\\n 2\\n\\n Case: 18-31159 Document: 00515078157 Page: 3 Date Filed: 08/15/2019\\n\\n\\n No. 18-31159\\n c/w No. 18-31161\\ndefendants did not specify whether the dismissal was with or without prejudice\\nand so it was presumed to be without prejudice. Id. (citing Fed. R. Civ. P. 41(a);\\nMarshall v. Kan. City S. Ry. Co., 378 F.3d 495, 501 (5th Cir. 2004)). We explained\\nthat, in those circumstances, Williams could have created a final appealable\\njudgment under 28 U.S.C. § 1291 only by “fil[ing] for a Rule 54(b) certification\\nwith the trial court.” Id. Lacking that, we held the without-prejudice dismissal\\n“was not a ‘final decision’ under § 1291 and did not create appellate jurisdiction.”\\nId.2 In other words, Williams had “stepped into the so-called ‘finality trap.’”\\nMarshall, 378 F.3d at 499; see, e.g., 84 Lumber Co. v. Continental Cas. Co., 914\\nF.3d 329, 332–33 (5th Cir. 2019) (“[A] party cannot use voluntary dismissal\\nwithout prejudice as an end-run around the final judgment rule to convert an\\notherwise non-final—and thus non-appealable—ruling into a final decision\\nappealable under § 1291.”) (quoting Marshall, 378 F.3d at 500) (cleaned up);\\nsee also generally Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 301–03\\n(5th Cir. 1978) (explaining genesis of rule).\\n That brings us to the present appeal. Attempting to cure the\\njurisdictional defect identified in Williams I, Williams returned to the district\\ncourt and moved, pursuant to Rule 54(b), that the defendants previously\\ndismissed without prejudice should now be dismissed with prejudice. As to\\nthose defendants, the district court then “direct[ed] entry of a final judgment\\nunder Rule 54(b) WITH PREJUDICE AND AGAINST\\nPLAINTIFFS . . . but only to the extent any claims might still exist and are\\n\\n\\n\\n\\n 2We also explained that “the [district court’s] grant of [Williams’] Rule 58 motion for\\nentry of judgment similarly did not create appellate jurisdiction, as such order did not alter\\nthe district court’s dismissal of multiple defendants without prejudice.” Id. As we pointed out,\\n“Rule 58(b)(1)(C) only directs the clerk to ‘promptly prepare, sign, and enter the judgment\\nwhen . . . the court denies all relief’” and, moreover, “specifically states that it is subject to\\nRule 54(b).” Id.\\n\\n\\n 3\\n\\n Case: 18-31159 Document: 00515078157 Page: 4 Date Filed: 08/15/2019\\n\\n\\n No. 18-31159\\n c/w No. 18-31161\\nnot time barred” (bold and underlining in original). The court added that the\\nmatter “appear[ed] ripe for appeal provided appellate rights, if any, still exist\\nand are still timely for presentment” (underlining in original). Armed with this\\nnew judgment, Williams again appeals. In response, Appellees argue we still\\nlack appellate jurisdiction for the same reasons explained in Williams I. We\\nagree.\\n Contrary to Williams’ argument, the jurisdictional defect identified in\\nWilliams I was not cured by the subsequent Rule 54(b) judgment. The three\\nremaining defendants had already been voluntarily dismissed under Rule\\n41(a), and, after that, the case against them “no longer [wa]s pending in the\\ndistrict court and no further proceedings in the action [we]re proper.”\\n9 WRIGHT & MILLER, FED. PRAC. & PROC. § 2367 (discussing effects of Rule\\n41(a) voluntary dismissal); cf., e.g., Nat’l City Golf Fin. v. Commercial Capital\\nCo., 899 F.3d 412, 415–416 (5th Cir. 2018) (explaining “[a] stipulation of\\ndismissal under [Rule 41(a)(1)(A)(ii)] ordinarily—and automatically—strips\\nthe district court of subject-matter jurisdiction”). As a result, the subsequent\\nRule 54(b) judgment could have had no effect. Cf., e.g., SmallBizPros, Inc. v.\\nMacDonald, 618 F.3d 458, 463 (5th. Cir 2010) (explaining that any district\\ncourt action following the filing of a Rule 41(a)(1)(A)(ii) stipulation of dismissal\\n“can have no force or effect”). Furthermore, as we pointed out in Williams I,\\nthe fact that the district court labeled its Rule 54(b) “judgment final does not\\nnecessarily make it so.” 748 F. App’x at 587 (citing Witherspoon v. White, 111\\nF.3d 399, 401 (5th Cir. 1997)). Thus, the Rule 54(b) judgment did not\\nretroactively transform the prior without-prejudice dismissals into with-\\nprejudice dismissals. We therefore conclude that the finality trap, which was\\nfound to bar appellate jurisdiction in Williams I, remains shut.\\n The appeal is DISMISSED for lack of jurisdiction.\\n\\n\\n 4\\n\\n Case: 18-31159 Document: 00515078157 Page: 5 Date Filed: 08/15/2019\\n\\n\\n No. 18-31159\\n c/w No. 18-31161\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426076/\", \"author_raw\": \"STUART KYLE DUNCAN, Circuit Judge:\"}, {\"author\": \"HAYNES, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"HAYNES, Circuit Judge, concurring:\\n I concur in the judgment of the court only because it faithfully applies\\nour precedent as we are bound to do. I write separately, however, because our\\nprecedent at best is muddled, and at worst is simply wrong and illogical. I\\nunderstand the basic underpinning of the original rule: we do not want parties\\nto circumvent the rules that limit interlocutory appeals by “creating” finality\\nwhere there is none. See Ryan v. Occidental Petroleum Corp., 577 F.3d 298,\\n301–03 (5th Cir. 1978). The determination that a voluntary dismissal without\\nprejudice is not “final” is itself suspect, though, given that, when a case is\\ndismissed in full without prejudice, there is nothing left for the district court\\nto do. Absent something else happening, like an appellate decision, a Rule\\n60(b) motion, or a new lawsuit, the district court will not see those parties in\\nthat case again. Cases dismissed with prejudice are no different: an appellate\\ncourt may reverse, a party can file a Rule 60(b) motion, and a party can file the\\nexact same lawsuit again (although it may be subject to a res judicata defense,\\nthe lawsuit can be refiled)—all instances where the case returns to the district\\ncourt.\\n But we need not revisit Ryan and its progeny to correct the disturbing\\noutcome here. Even assuming arguendo the validity of the precedent applied\\nduring the first appeal of this case (finding the dismissal was “not final”), see\\nWilliams v. Taylor-Seidenbach, Inc., 748 F. App’x 584 (5th Cir. 2018) (per\\ncuriam) (“Williams I”), our precedent under the “finality trap” does not follow\\nlogically.\\n For one thing, to the extent that this inability to appeal is meant as a\\nsanction for the “misconduct” of voluntarily dismissing without prejudice, we\\nrequire much more (rightly so) for litigation-ending or “death penalty\\n\\n\\n\\n\\n 5\\n\\n Case: 18-31159 Document: 00515078157 Page: 6 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-31159\\n c/w No. 18-31161\\nsanctions” in other contexts. See, e.g., Smith v. Legg, 24 F.3d 650, 654 (5th Cir.\\n1994). Nothing suggests such a sanction is appropriate here.\\n Furthermore, we have the core of the problem: either the district court\\ndecision is final, or it is not. If it was not final, then the district court’s\\nsubsequent order granting Rule 54(b) relief should allow us to exercise\\nappellate jurisdiction here. If it was final, then the panel in Williams I should\\nhave asserted jurisdiction. But somehow, applying the “finality trap,” both are\\ntrue, and neither is true: in this case, the exact same judgment is both final\\nand not final. In the John Minor Wisdom Courthouse (housing the Fifth\\nCircuit), this decision was “not final.” But as the case traipses along the\\ncourtyard of fewer than 100 feet to the Hale Boggs Federal Building (housing\\nthis district court), it suddenly becomes final again. How does that make any\\nsense?\\n New Orleans tourists often revel in the numerous ghost tours available\\nthroughout the city. But, as courts, we should not allow ghostly magic to\\ntransform a decision from not final to final and vice-versa merely because it\\ncrosses (virtually) a courtyard between a district court building and circuit\\ncourt building.\\n Indeed, the very fact of a “trap” should “tip us off that [the finality trap]\\nrests on a mistaken view” of the law. See Knick v. Town of Scott, 139 S. Ct.\\n2162, 2167 (2019) (addressing “trap” created by rule that party must first seek\\nstate relief but then is usually barred by state’s denial of relief in seeking\\ncompensation for takings in violation of the Fifth Amendment). We should\\ntake this case en banc to correct this egregious mess and make it clear that\\nwhen we have deemed a case “not final” for purposes of appeal because of a\\ndismissal without prejudice, then the district court regains jurisdiction to “fix”\\nthe lack of finality either by granting a Rule 54(b) motion or revising the\\n\\n 6\\n\\n Case: 18-31159 Document: 00515078157 Page: 7 Date Filed: 08/15/2019\\n\\n\\n\\n No. 18-31159\\n c/w No. 18-31161\\ndismissal “without prejudice” to render it “with prejudice.” 1 Thus, while I\\nconcur in the majority opinion under current precedent, I strongly disagree\\nwith the underlying rationale. 2\\n\\n\\n\\n\\n 1 The solution to this problem is not earth-shattering. The en banc court would\\nmerely have to slightly alter current precedent that “any action by the district court\\nafter the filing of such [Rule 41(a)(1)(A)(ii)] a stipulation can have no force or effect\\nbecause the matter has already been dismissed by the parties themselves without\\nany court action” by allowing the district court to grant Rule 54(b) relief or enter a\\ndismissal with prejudice with the consent of the plaintiff. SmallBizPros, Inc. v.\\nMacDonald, 618 F.3d 458, 663 (5th Cir. 2010) (emphasis added).\\n\\n 2 Some of our sister circuits have found more logical solutions with respect to\\nthe “finality trap.” For example, the Ninth Circuit applies a case-by-case analysis,\\nallowing for appeals after dismissals without prejudice, if “the record reveals no\\nevidence of intent to manipulate [] appellate jurisdiction.” James v. Price Stern\\nSloan, Inc., 283 F.3d 1064, 1069–70 (9th Cir. 2002) (rejecting the Ryan rule and\\nstating agreement with the Sixth, Seventh, and Eighth Circuits). The Seventh and\\nFourth Circuits look to the state of the litigation when the appeal is taken. See, e.g.,\\nSims v. EGA Prod., Inc., 475 F.3d 865, 867 (7th Cir. 2007) (“In evaluating ‘finality,’\\nwe [have held that] it is essential to look at the whole picture, including claims that\\nhave been put on the back burner through a dismissal-with-leave-to-reinstate\\nprocedure.”); GO Computer, Inc. v. Microsoft Corp., 508 F.3d 170, 176 (4th Cir. 2007)\\n(“What makes [dismissal without prejudice] final or nonfinal is not the speculative\\npossibility of a new lawsuit, but that they ‘end the litigation on the merits and leave\\nnothing for the court to do but execute the judgment.’” (quotation omitted). The First\\nand Third Circuits allow the court to rely on the litigants’ consent or declarations.\\nSee Scanlon v. M.V. SUPER SERVANT 3, 429 F.3d 6, 8 (1st Cir. 2005) (“[I]t is possible\\nfor a party to consent to a judgment and still preserve [its] right to appeal a previous\\nruling on a contested matter in the case, as long as it reserve[s] that right\\nunequivocally.”); Tiernan v. Devoe, 923 F.2d 1024, 1031 (3d Cir. 1991) (finding that\\nplaintiffs cured the appellate jurisdictional defect by “renounce[ing], through letter\\nbriefs, any intention to take further action against the [defendants]”).\\n 7\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426076/\", \"author_raw\": \"HAYNES, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"HAYNES"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4648823/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Tarsia WILLIAMS; Breck Williams, Plaintiffs - Appellants v. TAYLOR SEIDENBACH, INCORPORATED, Defendant - Appellee Tarsia Williams; Breck Williams, Plaintiffs - Appellants v. McCarty Corporation, Defendant - Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-31159 Document: 00515078157 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-31159 August 15, 2019\n Lyle W. Cayce\n Clerk\nTARSIA WILLIAMS; BRECK WILLIAMS,\n\n Plaintiffs - Appellants\n\nv.\n\nTAYLOR SEIDENBACH, INCORPORATED,\n\n Defendant - Appellee\n\nConsolidated for argument with 18-31161\n\nTARSIA WILLIAMS; BRECK WILLIAMS,\n\n Plaintiffs - Appellants\n\nv.\n\nMCCARTY CORPORATION,\n\n Defendant - Appellee\n\n\n\n\n Appeals from the United States District Court\n for the Eastern District of Louisiana\n\n\nBefore HAYNES, GRAVES, and DUNCAN, Circuit Judges.\nSTUART KYLE DUNCAN, Circuit Judge:\n\n Case: 18-31159 Document: 00515078157 Page: 2 Date Filed: 08/15/2019\n\n\n No. 18-31159\n c/w No. 18-31161\n For the second time, we address whether we have appellate jurisdiction\nin this case. We previously recounted the case’s convoluted history, see\nWilliams v. Taylor-Seidenbach, Inc., 748 F. App’x 584 (5th Cir. 2018) (per\ncuriam) (“Williams I”), and here provide only the relevant details. This case\narises from a 2008 state court suit by Frank Williams, Jr.,1 alleging he contracted\nmesothelioma from asbestos while working at a NASA facility in Louisiana. He\nsued multiple defendants, including Appellees Taylor-Seidenbach and McCarty.\nThe case was removed to the Eastern District of Louisiana and later transferred\nto the Eastern District of Pennsylvania’s multi-district asbestos litigation\n(“MDL”). In June 2014, the MDL court granted summary judgment to several\ndefendants including Appellees—based on insufficient evidence of causation—\nand subsequently remanded the entire case back to the Eastern District of\nLouisiana.\n In November 2016, Williams moved to voluntarily dismiss the four\nremaining defendants. As to one defendant, Williams moved to dismiss with\nprejudice; as to the three others, Williams did not specify whether dismissal\nwas with or without prejudice. Accordingly, the district court dismissed one\ndefendant with prejudice and the other three without specifying either way.\nWilliams then appealed to this court, seeking review of the MDL court’s\nsummary judgment grants and other orders.\n We dismissed the appeal for lack of jurisdiction. Williams I, 748 F. App’x\n584. We applied the “settled rule that ‘appellate jurisdiction over a non-final\norder cannot be created by dismissing the remaining claims without prejudice[.]’”\n748 F. App’x at 587 (quoting Swope v. Columbian Chemicals Co., 281 F.3d 185,\n192 (5th Cir. 2002)). The district court’s order dismissing three of the remaining\n\n\n Frank Williams passed away during the litigation, and his children, Tarsia and\n 1\n\nBreck Williams, were substituted for him. We refer to the plaintiffs collectively as “Williams.”\n\n\n 2\n\n Case: 18-31159 Document: 00515078157 Page: 3 Date Filed: 08/15/2019\n\n\n No. 18-31159\n c/w No. 18-31161\ndefendants did not specify whether the dismissal was with or without prejudice\nand so it was presumed to be without prejudice. Id. (citing Fed. R. Civ. P. 41(a);\nMarshall v. Kan. City S. Ry. Co., 378 F.3d 495, 501 (5th Cir. 2004)). We explained\nthat, in those circumstances, Williams could have created a final appealable\njudgment under 28 U.S.C. § 1291 only by “fil[ing] for a Rule 54(b) certification\nwith the trial court.” Id. Lacking that, we held the without-prejudice dismissal\n“was not a ‘final decision’ under § 1291 and did not create appellate jurisdiction.”\nId.2 In other words, Williams had “stepped into the so-called ‘finality trap.’”\nMarshall, 378 F.3d at 499; see, e.g., 84 Lumber Co. v. Continental Cas. Co., 914\nF.3d 329, 332–33 (5th Cir. 2019) (“[A] party cannot use voluntary dismissal\nwithout prejudice as an end-run around the final judgment rule to convert an\notherwise non-final—and thus non-appealable—ruling into a final decision\nappealable under § 1291.”) (quoting Marshall, 378 F.3d at 500) (cleaned up);\nsee also generally Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 301–03\n(5th Cir. 1978) (explaining genesis of rule).\n That brings us to the present appeal. Attempting to cure the\njurisdictional defect identified in Williams I, Williams returned to the district\ncourt and moved, pursuant to Rule 54(b), that the defendants previously\ndismissed without prejudice should now be dismissed with prejudice. As to\nthose defendants, the district court then “direct[ed] entry of a final judgment\nunder Rule 54(b) WITH PREJUDICE AND AGAINST\nPLAINTIFFS . . . but only to the extent any claims might still exist and are\n\n\n\n\n 2We also explained that “the [district court’s] grant of [Williams’] Rule 58 motion for\nentry of judgment similarly did not create appellate jurisdiction, as such order did not alter\nthe district court’s dismissal of multiple defendants without prejudice.” Id. As we pointed out,\n“Rule 58(b)(1)(C) only directs the clerk to ‘promptly prepare, sign, and enter the judgment\nwhen . . . the court denies all relief’” and, moreover, “specifically states that it is subject to\nRule 54(b).” Id.\n\n\n 3\n\n Case: 18-31159 Document: 00515078157 Page: 4 Date Filed: 08/15/2019\n\n\n No. 18-31159\n c/w No. 18-31161\nnot time barred” (bold and underlining in original). The court added that the\nmatter “appear[ed] ripe for appeal provided appellate rights, if any, still exist\nand are still timely for presentment” (underlining in original). Armed with this\nnew judgment, Williams again appeals. In response, Appellees argue we still\nlack appellate jurisdiction for the same reasons explained in Williams I. We\nagree.\n Contrary to Williams’ argument, the jurisdictional defect identified in\nWilliams I was not cured by the subsequent Rule 54(b) judgment. The three\nremaining defendants had already been voluntarily dismissed under Rule\n41(a), and, after that, the case against them “no longer [wa]s pending in the\ndistrict court and no further proceedings in the action [we]re proper.”\n9 WRIGHT & MILLER, FED. PRAC. & PROC. § 2367 (discussing effects of Rule\n41(a) voluntary dismissal); cf., e.g., Nat’l City Golf Fin. v. Commercial Capital\nCo., 899 F.3d 412, 415–416 (5th Cir. 2018) (explaining “[a] stipulation of\ndismissal under [Rule 41(a)(1)(A)(ii)] ordinarily—and automatically—strips\nthe district court of subject-matter jurisdiction”). As a result, the subsequent\nRule 54(b) judgment could have had no effect. Cf., e.g., SmallBizPros, Inc. v.\nMacDonald, 618 F.3d 458, 463 (5th. Cir 2010) (explaining that any district\ncourt action following the filing of a Rule 41(a)(1)(A)(ii) stipulation of dismissal\n“can have no force or effect”). Furthermore, as we pointed out in Williams I,\nthe fact that the district court labeled its Rule 54(b) “judgment final does not\nnecessarily make it so.” 748 F. App’x at 587 (citing Witherspoon v. White, 111\nF.3d 399, 401 (5th Cir. 1997)). Thus, the Rule 54(b) judgment did not\nretroactively transform the prior without-prejudice dismissals into with-\nprejudice dismissals. We therefore conclude that the finality trap, which was\nfound to bar appellate jurisdiction in Williams I, remains shut.\n The appeal is DISMISSED for lack of jurisdiction.\n\n\n 4\n\n Case: 18-31159 Document: 00515078157 Page: 5 Date Filed: 08/15/2019\n\n\n No. 18-31159\n c/w No. 18-31161\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Tarsia WILLIAMS; Breck Williams, Plaintiffs - Appellants v. TAYLOR SEIDENBACH, INCORPORATED, Defendant - Appellee Tarsia Williams; Breck Williams, Plaintiffs - Appellants v. McCarty Corporation, Defendant - Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-31159 Document: 00515078157 Page: 1 Date Filed: 08/15/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-31159 August 15, 2019\\n Lyle W. Cayce\\n Clerk\\nTARSIA WILLIAMS; BRECK WILLIAMS,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nTAYLOR SEIDENBACH, INCORPORATED,\\n\\n Defendant - Appellee\\n\\nConsolidated for argument with 18-31161\\n\\nTARSIA WILLIAMS; BRECK WILLIAMS,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nMCCARTY CORPORATION,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Eastern District of Louisiana\\n\\n\\nBefore HAYNES, GRAVES, and DUNCAN, Circuit Judges.\\nSTUART KYLE DUNCAN, Circuit Judge:\\n\\n Case: 18-31159 Document: 00515078157 Page: 2 Date Filed: 08/15/2019\\n\\n\\n No. 18-31159\\n c/w No. 18-31161\\n For the second time, we address whether we have appellate jurisdiction\\nin this case. We previously recounted the case’s convoluted history, see\\nWilliams v. Taylor-Seidenbach, Inc., 748 F. App’x 584 (5th Cir. 2018) (per\\ncuriam) (“Williams I”), and here provide only the relevant details. This case\\narises from a 2008 state court suit by Frank Williams, Jr.,1 alleging he contracted\\nmesothelioma from asbestos while working at a NASA facility in Louisiana. He\\nsued multiple defendants, including Appellees Taylor-Seidenbach and McCarty.\\nThe case was removed to the Eastern District of Louisiana and later transferred\\nto the Eastern District of Pennsylvania’s multi-district asbestos litigation\\n(“MDL”). In June 2014, the MDL court granted summary judgment to several\\ndefendants including Appellees—based on insufficient evidence of causation—\\nand subsequently remanded the entire case back to the Eastern District of\\nLouisiana.\\n In November 2016, Williams moved to voluntarily dismiss the four\\nremaining defendants. As to one defendant, Williams moved to dismiss with\\nprejudice; as to the three others, Williams did not specify whether dismissal\\nwas with or without prejudice. Accordingly, the district court dismissed one\\ndefendant with prejudice and the other three without specifying either way.\\nWilliams then appealed to this court, seeking review of the MDL court’s\\nsummary judgment grants and other orders.\\n We dismissed the appeal for lack of jurisdiction. Williams I, 748 F. App’x\\n584. We applied the “settled rule that ‘appellate jurisdiction over a non-final\\norder cannot be created by dismissing the remaining claims without prejudice[.]’”\\n748 F. App’x at 587 (quoting Swope v. Columbian Chemicals Co., 281 F.3d 185,\\n192 (5th Cir. 2002)). The district court’s order dismissing three of the remaining\\n\\n\\n Frank Williams passed away during the litigation, and his children, Tarsia and\\n 1\\n\\nBreck Williams, were substituted for him. We refer to the plaintiffs collectively as “Williams.”\\n\\n\\n 2\\n\\n Case: 18-31159 Document: 00515078157 Page: 3 Date Filed: 08/15/2019\\n\\n\\n No. 18-31159\\n c/w No. 18-31161\\ndefendants did not specify whether the dismissal was with or without prejudice\\nand so it was presumed to be without prejudice. Id. (citing Fed. R. Civ. P. 41(a);\\nMarshall v. Kan. City S. Ry. Co., 378 F.3d 495, 501 (5th Cir. 2004)). We explained\\nthat, in those circumstances, Williams could have created a final appealable\\njudgment under 28 U.S.C. § 1291 only by “fil[ing] for a Rule 54(b) certification\\nwith the trial court.” Id. Lacking that, we held the without-prejudice dismissal\\n“was not a ‘final decision’ under § 1291 and did not create appellate jurisdiction.”\\nId.2 In other words, Williams had “stepped into the so-called ‘finality trap.’”\\nMarshall, 378 F.3d at 499; see, e.g., 84 Lumber Co. v. Continental Cas. Co., 914\\nF.3d 329, 332–33 (5th Cir. 2019) (“[A] party cannot use voluntary dismissal\\nwithout prejudice as an end-run around the final judgment rule to convert an\\notherwise non-final—and thus non-appealable—ruling into a final decision\\nappealable under § 1291.”) (quoting Marshall, 378 F.3d at 500) (cleaned up);\\nsee also generally Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 301–03\\n(5th Cir. 1978) (explaining genesis of rule).\\n That brings us to the present appeal. Attempting to cure the\\njurisdictional defect identified in Williams I, Williams returned to the district\\ncourt and moved, pursuant to Rule 54(b), that the defendants previously\\ndismissed without prejudice should now be dismissed with prejudice. As to\\nthose defendants, the district court then “direct[ed] entry of a final judgment\\nunder Rule 54(b) WITH PREJUDICE AND AGAINST\\nPLAINTIFFS . . . but only to the extent any claims might still exist and are\\n\\n\\n\\n\\n 2We also explained that “the [district court’s] grant of [Williams’] Rule 58 motion for\\nentry of judgment similarly did not create appellate jurisdiction, as such order did not alter\\nthe district court’s dismissal of multiple defendants without prejudice.” Id. As we pointed out,\\n“Rule 58(b)(1)(C) only directs the clerk to ‘promptly prepare, sign, and enter the judgment\\nwhen . . . the court denies all relief’” and, moreover, “specifically states that it is subject to\\nRule 54(b).” Id.\\n\\n\\n 3\\n\\n Case: 18-31159 Document: 00515078157 Page: 4 Date Filed: 08/15/2019\\n\\n\\n No. 18-31159\\n c/w No. 18-31161\\nnot time barred” (bold and underlining in original). The court added that the\\nmatter “appear[ed] ripe for appeal provided appellate rights, if any, still exist\\nand are still timely for presentment” (underlining in original). Armed with this\\nnew judgment, Williams again appeals. In response, Appellees argue we still\\nlack appellate jurisdiction for the same reasons explained in Williams I. We\\nagree.\\n Contrary to Williams’ argument, the jurisdictional defect identified in\\nWilliams I was not cured by the subsequent Rule 54(b) judgment. The three\\nremaining defendants had already been voluntarily dismissed under Rule\\n41(a), and, after that, the case against them “no longer [wa]s pending in the\\ndistrict court and no further proceedings in the action [we]re proper.”\\n9 WRIGHT & MILLER, FED. PRAC. & PROC. § 2367 (discussing effects of Rule\\n41(a) voluntary dismissal); cf., e.g., Nat’l City Golf Fin. v. Commercial Capital\\nCo., 899 F.3d 412, 415–416 (5th Cir. 2018) (explaining “[a] stipulation of\\ndismissal under [Rule 41(a)(1)(A)(ii)] ordinarily—and automatically—strips\\nthe district court of subject-matter jurisdiction”). As a result, the subsequent\\nRule 54(b) judgment could have had no effect. Cf., e.g., SmallBizPros, Inc. v.\\nMacDonald, 618 F.3d 458, 463 (5th. Cir 2010) (explaining that any district\\ncourt action following the filing of a Rule 41(a)(1)(A)(ii) stipulation of dismissal\\n“can have no force or effect”). Furthermore, as we pointed out in Williams I,\\nthe fact that the district court labeled its Rule 54(b) “judgment final does not\\nnecessarily make it so.” 748 F. App’x at 587 (citing Witherspoon v. White, 111\\nF.3d 399, 401 (5th Cir. 1997)). Thus, the Rule 54(b) judgment did not\\nretroactively transform the prior without-prejudice dismissals into with-\\nprejudice dismissals. We therefore conclude that the finality trap, which was\\nfound to bar appellate jurisdiction in Williams I, remains shut.\\n The appeal is DISMISSED for lack of jurisdiction.\\n\\n\\n 4\\n\\n Case: 18-31159 Document: 00515078157 Page: 5 Date Filed: 08/15/2019\\n\\n\\n No. 18-31159\\n c/w No. 18-31161\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3672,"cells":{"id":{"kind":"number","value":4649100,"string":"4,649,100"},"name":{"kind":"string","value":"Mary Paula HARVILLE, Plaintiff - Appellant v. CITY OF HOUSTON, MISSISSIPPI, Defendant - Appellee"},"name_abbreviation":{"kind":"string","value":"Mary Harville v. City of Houston, Mississippi"},"decision_date":{"kind":"string","value":"2019-08-16"},"docket_number":{"kind":"string","value":"18-60117"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"Case: 18-60117 Document: 00515079190 Page: 1 Date Filed: 08/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n No. 18-60117 FILED\\n August 16, 2019\\n\\nMARY PAULA HARVILLE, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellant\\n\\nv.\\n\\nCITY OF HOUSTON, MISSISSIPPI,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Mississippi\\n\\n\\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge.\\n Mary Paula Harville appeals the district court’s grant of summary\\njudgment on her race discrimination and retaliation claims under Title VII and\\n42 U.S.C. § 1981. Harville was terminated from her position as deputy clerk\\nwith the City of Houston, Mississippi in 2015 as part of a group of layoffs\\ndesigned to offset the City’s budget shortfall. Because Harville fails to present\\na genuine issue of material fact that her race was a motivating factor in her\\ntermination or that there was a causal connection between her EEOC\\ncomplaint and that termination, we affirm.\\n\\f Case: 18-60117 Document: 00515079190 Page: 2 Date Filed: 08/16/2019\\n\\n\\n\\n\\n I.\\n Harville, a white female, was hired as a deputy clerk by the City of\\nHouston in 2005. She worked in that position for approximately ten years. In\\nSeptember 2015, the City was facing a budget shortfall and the Board of\\nAldermen voted unanimously to eliminate the positions and salaries of four\\nCity employees, including Harville’s position. Harville’s claims against the\\nCity arise from that termination.\\n At the time of her termination, there were four deputy clerks in the\\nclerk’s office. The deputy clerks were cross-trained, but each maintained\\nprimary duties. Harville’s primary duties included processing and invoicing ad\\nvalorem, school, and privilege taxes. During her employment as a deputy clerk,\\nHarville enjoyed positive reviews from her superiors. 1 With respect to the other\\ndeputies’ duties, Barbara Buggs—who was hired before Harville—was\\nresponsible for payroll and insurance, tax receipting, voter registration, and\\nhuman resource tasks. Kathy Smith was also hired before Harville and her\\nprimary duties included serving as the Municipal Court Clerk. Shequala Jones\\nwas the only deputy clerk hired after Harville, in 2007, and she was primarily\\nresponsible for collecting water and sewage fees. Smith is also white while\\nBuggs and Jones are black. Two of the deputy clerks are related to Alderwoman\\nSheina Jones; Buggs is her sister and Jones is her first cousin.\\n In the fall of 2015, facing a budget shortfall, the City’s Board began\\nworking on a budget for the next fiscal year. Harville was aware of the financial\\nproblems and the City Clerk at the time, Margaret Futral, told Harville in\\n\\n\\n\\n 1 The City Clerk at the time of Harville’s termination, Margaret Futral, described\\nHarville as an excellent employee. Futral also contrasted Harville with the three other\\ndeputy clerks, whom she described as spending a lot of time on their phones or social media.\\nRetired City Clerk Bobby Sanderson stated that he had never had problems with Harville\\nand that she was an “excellent” employee. Former City Clerk Janie Dendy also described her\\nas a good employee and stated that she was surprised that Harville had been let go.\\n\\f Case: 18-60117 Document: 00515079190 Page: 3 Date Filed: 08/16/2019\\n\\n\\n\\n\\nAugust or September that the Board was considering reducing the number of\\ndeputy clerks from four to three. In preparation for the September 15, 2015\\nboard meeting, Futral created a document explaining the steps that had been\\ntaken to manage the budget, advocating that the Board keep Harville’s job,\\nand proposing a solution of cutting each deputy clerk’s hours by five. Futral\\nbelieved Harville’s tax duties were “crucial” and no other deputy clerk could\\nperform those tasks. In contrast, Futral noted that Jones had been out for\\nmaternity leave for six weeks and the other deputy clerks had adequately\\ncovered her job responsibilities. Futral stated that she would resign if the\\nBoard chose to terminate Harville, explaining that she would be unable to\\nperform the duties of City Clerk with the added responsibility of Harville’s\\nduties.\\n At the September 15 meeting, the Board entered into an executive\\nsession to consider the layoffs. Echoing Futral, Mayor Stacy Parker also\\nsuggested that instead of eliminating the positions of four city employees, the\\nBoard consider other potential budget savings like cuts to hours and insurance.\\nAlderman Uhiren stated that he considered Harville’s job seasonal because it\\nwas related to tax collection—Futral disputed that it was seasonal, and again\\nadvocated for cutting hours to generate the same cost savings. Futral also\\nsuggested that it would make more sense to cut Jones’s job, because the other\\ndeputies had covered her responsibilities during her maternity leave—Futral\\ndid not know how to perform Harville’s job. Alderwoman Jones responded that\\nBuggs (her sister) had trained Harville and knew the job. 2 In a final attempt\\nto save Harville’s position, Futral asked if all four deputies could remain\\nemployed if she resigned (meaning one deputy would be promoted to City\\n\\n\\n 2 It later became apparent that Buggs did not know how to do Harville’s job. In her\\ndeposition, Futral stated that after Harville’s departure, approximately 80 percent of the\\nwork fell to Futral and Buggs was unable to assist.\\n\\f Case: 18-60117 Document: 00515079190 Page: 4 Date Filed: 08/16/2019\\n\\n\\n\\n\\nClerk). The Board determined that if Futral resigned the City would post the\\nclerk’s job rather than promoting from within. The Board ultimately rejected\\nall of the proposed solutions that would preserve Harville’s job and voted\\nunanimously to eliminate four full-time positions, including Harville’s. 3\\nImmediately after the meeting concluded, Harville spoke to Mayor Parker and\\nFutral. According to Harville, Parker told her she was terminated because the\\nBoard had determined that her job was seasonal. The Board has not posted or\\nfilled Harville’s position since her departure. Harville filed a charge of\\ndiscrimination with the Equal Employment Opportunity Commission on\\nNovember 3, 2015—alleging she was discriminated against on the basis of her\\nrace and age—and, upon her request, was given notice of her right to sue in\\nFebruary 2016.\\n Futral resigned in March 2016, approximately six months after\\nHarville’s termination. The Board accepted her resignation and voted to\\nadvertise the position of City Clerk. The advertisements ran in the local\\nnewspaper, the Chickasaw Journal, starting in March 2016. Harville\\nsubmitted an application each time the position was listed. Although the City\\naccepted applications between March and November 2016, it chose not to\\ninterview any candidates for the position because of the cost-savings of the City\\nClerk’s salary. During the Board’s July 2016 meeting, the Board discussed the\\npossibility of contracting an accountant part-time to prepare the City’s budget\\nrather than hiring a full-time clerk. The August 2016 advertisement was\\nrevised accordingly to include preferred qualifications of being a CPA or having\\na four-year degree in accounting and to reflect that the position was either\\n\\n\\n\\n\\n 3 The other positions eliminated were public works supervisor, code enforcement\\nofficer, and park employee.\\n\\f Case: 18-60117 Document: 00515079190 Page: 5 Date Filed: 08/16/2019\\n\\n\\n\\n\\npart-time or full-time. 4 The Mayor successfully prepared the 2017 budget while\\nthe clerk position was vacant, but because the task was time-consuming for\\nthe Mayor, the Board voted to advertise the position again. After applying for\\nthe posted position in March and May and not receiving an interview, Harville\\nfiled a second EEOC charge of discrimination on August 1, 2016, alleging that\\nthe City had refused to interview her in retaliation for her earlier EEOC charge\\nand her filing of the complaint in this case.\\n After the position was posted a final time in September, the Board\\nreviewed between fifteen and twenty applications and chose to interview two\\ncandidates: Harville and Lisa Sanford. Sanford held a Bachelor of Science in\\nAccounting from Mississippi University for Women and had over thirty years\\nof accounting experience. 5 The Board asked the same questions of both\\ncandidates. After the interviews, the Board voted unanimously to hire Sanford\\non November 15, 2016. On November 29, 2016, Harville filed a supplemental\\nEEOC charge, informing the EEOC of the advertisement with revised\\nqualifications, her interview, and Sanford’s hiring. At her request, she received\\na second notice of her right to sue in February 2017.\\n Harville filed this suit in the Northern District of Mississippi in April\\n2016 alleging racial discrimination under Title VII and 42 U.S.C. § 1981 and\\nage discrimination under the ADEA. Harville amended her complaint in\\nFebruary 2017 to add her claim for retaliation under Title VII, based on the\\nCity’s decision not to hire her for the clerk position. The district court granted\\nsummary judgment on all claims on January 30, 2018. This appeal followed. 6\\n\\n\\n\\n 4 The lack of a degree would not however preclude an otherwise qualified candidate\\nfrom being considered.\\n 5 Sanford was also previously employed as the Accountant and Public Utilities Office\\n\\nManager for the City of Carthage.\\n 6 Harville appeals the district court’s decision as to her race discrimination and\\n\\nretaliation claims, not the age discrimination claim.\\n\\f Case: 18-60117 Document: 00515079190 Page: 6 Date Filed: 08/16/2019\\n\\n\\n\\n\\n II.\\n We review a district court’s grant of summary judgment de novo, viewing\\nall facts and drawing all inferences in a light most favorable to the non-moving\\nparty. 7 Summary judgment is appropriate only if, viewing the evidence in the\\nlight most favorable to the non-moving party, “the movant shows that there is\\nno genuine dispute as to any material fact and the movant is entitled to\\njudgment as a matter of law.” 8 “A fact is material if it ‘might affect the outcome\\nof the suit’ [and a] factual dispute is genuine ‘if the evidence is such that a\\nreasonable jury could return a verdict for the nonmoving party.’” 9\\n III.\\n Harville’s Title VII claim relies on circumstantial evidence and is\\ntherefore subject to the burden-shifting framework set out in McDonnell\\nDouglas Corp. v. Green. 10 Under that framework, Harville has the initial\\nburden to establish a prima facie case of discrimination—she must produce\\nevidence that she (1) is a member of a protected class, (2) was qualified for the\\nposition that she held, (3) was subject to an adverse employment action, and\\n(4) was replaced by someone outside of her protected class or treated less\\nfavorably than other similarity-situated employees who were not in her\\nprotected class. 11 The prima facie case, once established, creates a presumption\\nof discrimination and the burden then shifts to the City to articulate a\\n\\n\\n 7 Alkhawaldeh v. Dow Chemical Co., 851 F.3d 422, 425–26 (5th Cir. 2017) (citing\\nBurell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016)).\\n 8 Fed. R. Civ. P. 56(a).\\n 9 Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019) (citing Anderson v. Liberty\\n\\nLobby, Inc., 477 U.S. 242, 248 (1986)).\\n 10 411 U.S. 792 (1973). Although Harville brings her claims under Title VII and\\n\\nSection 1981, “we refer only to Title VII, because ‘when used as parallel causes of action, Title\\nVII and Section 1981 require the same proof to establish liability,’ and ‘it would be redundant\\nto refer to both of them.’” Outley v. Luke & Assocs., Inc., 840 F.3d 212, 2016 n.3 (5th Cir. 2016)\\n(quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999)\\n(internal alterations omitted)).\\n 11 Alkhawaldeh, 851 F.3d at 426.\\n\\f Case: 18-60117 Document: 00515079190 Page: 7 Date Filed: 08/16/2019\\n\\n\\n\\n\\nlegitimate, non-discriminatory reason for the adverse employment action. 12 If\\nthe City is able to articulate a legitimate, non-discriminatory reason for the\\ntermination, the burden shifts back to Harville to “demonstrate that the\\nemployer’s proffered reason is a pretext for discrimination.” 13\\n The district court held that Harville had made out a prima facie case for\\nrace discrimination. In its brief, the City urges us not to accept that finding on\\nappeal, suggesting that Harville fails to make out the fourth element of her\\nprima facie case because Harville was not replaced and she is unable to show\\nthat a similarly-situated employee was treated more favorably. It is\\nundisputed that Harville was not replaced, and the City contends she failed to\\nshow that a similarly-situated employee was treated more favorably.\\nPrincipally, the City argues Shequala Jones is not a proper comparator because\\nJones and Harville had different levels of education and job responsibilities.\\n The City interprets that fourth prong with too much granularity. To\\nestablish the fourth prong of her prima facie case here, Harville must\\ndemonstrate she was treated less favorably because of race than were other\\nsimilarly situated employees who were not members of that protected class. 14\\nWe have emphasized that “nearly identical” is not synonymous with\\n“identical.” 15 “The employment actions being compared will be deemed to have\\n\\n\\n\\n 12 Shackelford, 190 F.3d at 404.\\n 13 Alkhawaldeh, 851 F.3d at 426 (quoting Munoz v. Orr, 200 F.3d 291, 299 (5th Cir.\\n2000) (internal quotation marks omitted)).\\n 14 Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). In her reply brief,\\n\\nHarville suggests that the similarly-situated standard applies only where the employee was\\nfired for misconduct and the court must consider whether the misconduct was nearly\\nidentical. But that test also applies in reduction-in-force cases and is framed as whether other\\nemployees, who were not members of the protected class, remained in similar positions. See\\ne.g., Ortiz v. Shaw Grp., Inc., 250 F. App’x 603, 606 (5th Cir. 2007) (per curiam). In other\\nwords, the question is whether similarly situated employees who were not members of the\\nprotected class avoided the layoffs.\\n 15 Lee, 574 F.3d at 260 (“Applied to the broader circumstances of a plaintiff’s\\n\\nemployment and that of his proffered comparator, a requirement of complete or total identity\\n\\f Case: 18-60117 Document: 00515079190 Page: 8 Date Filed: 08/16/2019\\n\\n\\n\\n\\nbeen taken under nearly identical circumstances when the employees being\\ncompared held the same job or responsibilities, shared the same supervisor or\\nhad their employment status determined by the same person, and have\\nessentially comparable violation histories.” 16 Here, Harville and Jones held the\\nsame position—both were deputy clerks. And while each deputy clerk had\\nspecialization in certain tasks in the office, the four employees were cross-\\ntrained, evidenced by the lists of job duties and the fact that three deputy\\nclerks were able to cover Jones’s duties adequately while she was on maternity\\nleave. Further, all four deputy clerks had the same supervisor. The district\\ncourt was correct in concluding that Harville has made out the fourth prong of\\nher prima facie case—she has produced sufficient evidence that would permit\\na reasonable fact-finder to conclude that she and Jones are similarly-\\nsituated. 17 Based on their shared characteristics, a reasonable jury could\\nconclude that the City engaged in disparate treatment.\\n Having established her prima facie case, the burden shifts to the City to\\narticulate a legitimate non-discriminatory reason for the adverse employment\\naction. Here, the City met this burden by offering sufficient evidence of its non-\\ndiscriminatory reason for terminating Harville: the City was facing a budget\\nshortfall and chose to implement a reduction in force. The City chose Harville’s\\nposition—rather than one of the other three deputy clerks—because it believed\\nher primary duties (taxes) were seasonal. The burden then shifts back to\\nHarville to demonstrate that the City’s proffered reason was a pretext for\\ndiscrimination.\\n\\n\\n\\n\\nrather than near identity would be essentially insurmountable, as it would only be in the\\nrarest of circumstances that the situations of two employees would be totally identical.”).\\n 16 Id.\\n 17 Morris v. Town of Independence, 827 F.3d 396, 402 (5th Cir. 2016).\\n\\f Case: 18-60117 Document: 00515079190 Page: 9 Date Filed: 08/16/2019\\n\\n\\n\\n\\n The district court held that Harville failed to present evidence that the\\nCity’s non-discriminatory reason for her termination was merely a pretext and\\ntherefore did not meet her burden under the McDonnell-Douglas framework.\\nOn appeal, Harville argues that the district court misapplied the Supreme\\nCourt’s precedent in Reeves v. Sanderson Plumbing Products, Inc. 18 Harville\\nfaults the district court for failing to draw all reasonable inferences from the\\nevidence she presented, primarily the testimony of the former city clerk,\\nFutral. She urges that she presented adequate evidence that the City’s non-\\ndiscriminatory explanation was pretextual because Futral testified that\\nHarville’s job was not seasonal and would be the hardest job to replace because\\nshe did not know how to complete Harville’s tax duties. Harville also takes\\nissue with the district court’s conclusion that Harville conflated discrimination\\nwith nepotism. She asserts that it is the province of the jury to make such an\\ninference and suggests that even if it was legitimate to infer the decision was\\nmotivated by nepotism, making kinship to a black alderperson a job\\nqualification itself discriminates on the basis of race. Principally, Harville\\nsuggests that the district court’s conclusions were in fact jury questions.\\n In Reeves, the Supreme Court considered an employee’s age\\ndiscrimination claim and clarified how a plaintiff may establish that an\\nemployer’s nondiscriminatory explanation is pretextual. 19 The Court held that\\na plaintiff’s prima facie case of discrimination, taken with sufficient evidence\\nfrom which a reasonable factfinder could reject the employer’s\\nnondiscriminatory explanation for its decision, can be adequate to sustain a\\nfinding of liability for intentional discrimination. 20 The Court warned,\\nhowever, that such a showing will not always be adequate to sustain a liability\\n\\n\\n 18 530 U.S. 133 (2000).\\n 19 Id. at 137.\\n 20 Id. at 148.\\n\\f Case: 18-60117 Document: 00515079190 Page: 10 Date Filed: 08/16/2019\\n\\n\\n\\n\\nfinding. 21 For example, “no rational factfinder could conclude that the action\\nwas discriminatory . . . if the record conclusively revealed some other,\\nnondiscriminatory reason for the employer’s decision, or if the plaintiff created\\nonly a weak issue of fact as to whether the employer’s reason was untrue and\\nthere was abundant and uncontroverted independent evidence that no\\ndiscrimination occurred.” 22\\n Harville argues that the district court failed to follow Reeves by failing\\nto credit her evidence from which a reasonable jury could infer that the\\nseasonality explanation was pretextual—namely, that Futral maintained that\\nthe job was not seasonal, she had positive reviews from Futral, and that\\nAlderwoman Jones suggested that another deputy clerk (her sister) could\\nadequately cover Harville’s duties, which turned out to be untrue.\\n But Harville does not create a genuine issue of material fact. She does\\nnot challenge the City’s explanation that it had to fire a deputy clerk because\\nof the budget shortfall, instead questioning only the Board’s decision that her\\nposition was best of the four to eliminate because it was seasonal. Although\\nHarville presents evidence that Futral told the Board that she did not agree\\nthat Harville’s job was seasonal, in her deposition, Futral testified that the\\nactual decisionmakers—the members of the board—believed that the job was\\nseasonal. 23 The issue at the pretext stage is not whether the Board’s reason\\nwas actually correct or fair, but whether the decisionmakers honestly believed\\nthe reason. 24 Harville has not provided sufficient evidence from which a jury\\n\\n\\n\\n\\n 21 Id.\\n 22 Id.\\n 23 “Q: I mean, did they believe that her job was seasonal? A: You know, I don’t know.\\n\\nI guess they did. They said it.”\\n 24 Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (“The issue at\\n\\nthe pretext stage is whether Appellee’s reason, even if incorrect, was the real reason for\\nAppellant’s termination.”).\\n\\f Case: 18-60117 Document: 00515079190 Page: 11 Date Filed: 08/16/2019\\n\\n\\n\\n\\ncould infer that the City’s decision here was not a simple reduction-in-force\\ndecision based on objective criteria. 25 Considering the record—including the\\nBoard notes and Futral’s testimony—in the light most favorable to Harville,\\nno reasonable finder of fact would conclude that the board’s explanation was a\\npretext for racial discrimination. Reeves does not relieve a plaintiff of her\\nburden to present evidence that will permit a rational factfinder to infer\\nintentional discrimination. 26\\n The district court also concluded that while Harville may have produced\\nsufficient evidence to suggest that the City was motivated by nepotism, that\\nwas not evidence of racial discrimination and Harville improperly conflated the\\ntwo concepts. 27 On appeal, Harville suggests that any nepotism was itself\\nracial discrimination, because it “mak[es] kinship to a black alderperson a job\\nqualification.” We agree with the district court that Harville fails to\\ndemonstrate how a decision based on family preferences intentionally\\ndiscriminated on the basis of race. “Title VII does not protect an employee\\nagainst unfair employment decisions; instead, it protects against employment\\n\\n\\n\\n\\n 25 Robertson v. Alltel Info. Servs., 373 F.3d 647, 652–53 (5th Cir. 2004).\\n 26 Reeves, 530 U.S. at 153 (noting that the “ultimate question” in cases alleging\\nemployment discrimination “is whether the plaintiff was the victim of intentional\\ndiscrimination” and reminding that “the ultimate burden of persuading the trier of fact that\\nthe defendant intentionally discriminated against the plaintiff remains at all times with the\\nplaintiff”) (internal quotation marks and alterations omitted). The district court did misstate\\nthe plaintiff’s burden when discussing the seasonality explanation and cited to a pre-Reeves\\ncase, Little v. Republic Refining Co., 924 F.2d 93 (5th Cir. 1991). Harville’s claim fails under\\nReeves however, because as discussed, she failed to establish intentional discrimination by\\nshowing that the City’s explanation was unworthy of credence. Reeves, 530 U.S. at 143.\\n 27 Futral speculated in her deposition that Harville may have been fired because two\\n\\nof the other deputy clerks were related to Alderwoman Jones and the third was the daughter\\nof the former mayor. “You know, if you really want to know the truth, I think they, you know,\\ndidn’t want to fire Barbara because she was Sheena’s sister. They didn’t want to fire Shequala\\nbecause she was her first cousin. And Kathy had been there a long time and her father was\\nthe mayor. That would be you know – so she was the other one. It wasn’t because they didn’t\\nlike her or anything.”\\n\\f Case: 18-60117 Document: 00515079190 Page: 12 Date Filed: 08/16/2019\\n\\n\\n\\n\\ndecisions based upon discriminatory animus.” 28 Harville conflates the two.\\nFurther, even if Harville could demonstrate that Alderwoman Jones’s\\nnepotistic decision was grounded in racial animus, she has not demonstrated\\nthat Jones’s discriminatory motive infected the entire board or that the other\\nmembers were similarly motivated. The Board made the termination decision\\nafter a unanimous vote by the five members. Harville does not present evidence\\nthat any racial animus by Alderwoman Jones motivated the other members of\\nthe Board. 29 At oral argument, Harville’s counsel suggested that Harville\\nprovided sufficient evidence of Alderwoman Jones’s influence because the\\nminutes showed that Jones had suggested that her sister could do the tax work,\\nwhich later proved to be false. That is insufficient to prove that “a majority of\\nthe board had [the requisite] animus.” 30\\n\\n\\n\\n\\n 28 Jones v. Overnite Transp. Co., 212 F. App’x 268, 275 (5th Cir. 2006) (per curiam);\\nsee also, e.g., Holder v. City of Raleigh, 867 F.2d 823, 827 (4th Cir. 1989) (“We are not\\npersuaded that a preference for family members is inevitably the flip side of racial animus\\nfor purposes of federal law.”).\\n 29 Griggs v. Chickasaw Cty., Miss., 2019 WL 3229151, at *5 (5th Cir. July 18, 2019)\\n\\n(considering a municipal liability claim under § 1983 and determining that even where there\\nis evidence of animus by individual board members, “the dispositive question is simply\\nwhether [the animus] is also chargeable to the Board itself”).\\n 30 Id. In a footnote to her reply brief, Harville suggests that a jury could infer that\\n\\nAlderwoman Jones was racially-biased and exercised influence over other members of the\\nboard—the cat’s paw theory of causation blessed by the Supreme Court in Staub v. Proctor\\nHosp., 562 U.S. 411 (2011). The City responds that Harville waived the argument by failing\\nto raise it until her reply. See July 23, 2019 28(j) letter. Even if it was not waived, her cat’s\\npaw theory fails. In Staub, the Court held that “if a supervisor performs an act motivated by\\n[impermissible] bias that is intended by the supervisor to cause an adverse employment\\naction, and if that act is a proximate cause of the ultimate employment action, then the\\nemployer is liable.” Staub, 562 U.S. at 422. Here, the fatal flaw in Harville’s theory is that\\nshe failed to present sufficient evidence that Alderwoman Jones’s vote was motivated by\\nracial animus. A jury can only make a reasonable inference that Alderwoman Jones’s racial\\nanimus influenced the other members of the board if there is threshold evidence of\\nAlderwoman Jones’s racial animus. To invoke the cat’s paw theory of causation, Harville\\nmust establish “(1) that a co-worker exhibited discriminatory animus, and (2) that the same\\nco-worker possessed leverage, or exerted influence, over the titular decisionmaker.”\\nRobertson, 373 F.3d at 653 (internal citations omitted). Harville makes no such showing here.\\n\\f Case: 18-60117 Document: 00515079190 Page: 13 Date Filed: 08/16/2019\\n\\n\\n\\n\\n In sum, Harville has failed to provide evidence sufficient to create a\\ngenuine issue of material fact that the City’s proffered explanation was a\\npretext for racial discrimination. The Court in Reeves reminded that each case\\nwill depend “the strength of the plaintiff’s prima facie case, the probative value\\nof the proof that the employer’s explanation is false, and any other evidence\\nthat supports the employer’s case.” 31 Here, Harville does not meet her burden\\nand produce evidence that would allow a finding of unlawful discrimination.\\n IV.\\n Harville also challenges the district court’s decision to grant summary\\njudgment for the City on her Title VII retaliation claim. To establish a prima\\nfacie case of retaliation under Title VII, Harville must show that (1) she\\nengaged in a Title VII protected activity; (2) she was subject to an adverse\\nemployment action; and (3) there was a but-for causal connection between her\\nemployment in the protected activity and the adverse employment action. 32 It\\nis undisputed that Harville establishes the first two prongs of her prima facie\\ncase: on November 3, 2015, she filed her first EEOC charge and on April 20,\\n2016, she filed her first complaint in this suit—both are protected activities\\nunder Title VII. The City chose to hire Lisa Sanford for the position rather than\\nHarville, adversely affecting her. The district court concluded that Harville\\nfailed to meet her burden to establish a causal connection between her\\nprotected activities and the City’s decision not to hire her.\\n We agree. Temporal proximity between an employer’s knowledge of a\\nprotected activity and an adverse employment action can constitute sufficient\\nevidence of causality to establish a prima facie case, but that proximity must\\nbe “very close.” 33 Harville’s first EEOC complaint was filed in November 2015.\\n\\n\\n 31 Reeves, 530 U.S. at 148–49.\\n 32 Cabral v. Brennan, 853 F.3d 763, 766–67 (5th Cir. 2017).\\n 33 Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 273 (2001).\\n\\f Case: 18-60117 Document: 00515079190 Page: 14 Date Filed: 08/16/2019\\n\\n\\n\\n\\nOn appeal, she urges that she suffered her first adverse employment action\\nwhen the City posted the job in March 2016, she applied, and the City decided\\nnot to interview her. But the City did not interview any candidate at that time\\nand Harville was granted an interview when the City decided to start\\nconducting interviews in November 2016. The temporal proximity between her\\nfirst EEOC charge and the City’s decision to hire Sanford—12 months—is not\\nsufficient to establish her prima facie case. 34 While Harville supplemented her\\nEEOC charge twice and filed her legal complaint on April 20, 2016, the\\ntemporal clock does not “re-start” with each protected activity. 35 The relevant\\nprotected activity was her first EEOC charge filed in November 2015, a full\\nyear before the City’s decision to hire Sanford.\\n Even assuming Harville could make out her prima facie case, she has\\nnot produced sufficient evidence that the City’s legitimate, non-retaliatory\\nrationale for its hiring decision was pretextual. “A plaintiff may show pretext\\neither through evidence of disparate treatment or by showing that the\\nemployer’s proffered explanation is false or unworthy of credence.” 36 The City\\nstates that it chose not to interview any candidate when the job was first posted\\nbecause of budgetary restraints and justifies its decision to hire Sanford\\ninstead of Harville based on Sanford’s accounting degree and thirty years of\\naccounting experience. This is borne out by the record—Board minutes\\ndocument discussions reflecting the cost-savings of keeping the Clerk’s position\\nvacant and explain the decision to change the job-posting, opening it to part-\\n\\n\\n\\n 34 Gorman v. Verizon Wireless Texas, LLC, 753 F.3d 165, 171 (5th Cir. 2014) (holding\\nthat ten months was too long to establish the temporal proximity necessary to make the third\\nprong of plaintiff’s prima facie case).\\n 35 Alkhawaldeh, 851 F.3d at 422 n.23 (“But a Title VII claimant cannot, with each\\n\\nprotected activity, re-start ‘the temporal-proximity clock.’”).\\n 36 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting Jackson v.\\n\\nCal-Western Packaging Corp., 602 F.3d 374, 378–79 (5th Cir. 2010) (internal quotation marks\\nomitted)).\\n\\f Case: 18-60117 Document: 00515079190 Page: 15 Date Filed: 08/16/2019\\n\\n\\n\\n\\ntime applicants and adding a preferred accounting degree qualification. 37\\nHarville does not raise a genuine issue of material fact that the City’s reasons\\nwere pretext for its retaliatory motives. While she highlights her experience in\\nthe office, she cannot show that she was “clearly better qualified” than Sanford\\ngiven Sanford’s education and experience. 38 Even if Harville could establish a\\nprima facie case, and we agree with the district court that she could not, the\\nCity provided legitimate, non-retaliatory reasons for its delay in conducting\\ninterviews and its decision to hire Sanford, which Harville was unable to\\ndemonstrate were unworthy of credence.\\n V.\\n We affirm the decision of the district court.\\n\\n\\n\\n\\n 37 While Harville objects to the district court’s consideration of the affidavit of\\nAlderman Thomas, contending that he was an interested witness and the court may only\\ncredit the evidence of the movant that comes from a disinterested witness. We have rejected\\nthis argument. Robertson, 373 F.3d at 653. As in Robertson, the record here indicates that\\nThomas’s affidavit was uncontradicted and unimpeached and Harville presents no evidence\\nthat the City relied on impermissible considerations. Id.\\n 38 Moss, 610 F.3d at 923; Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.\\n\\n1996) (emphasizing that experience does not alone establish qualification).\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426353/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"HO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HIGGINBOTHAM\": \", Circuit\", \"ELROD\": \", Circuit\", \"HO\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4649100/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Mary Paula HARVILLE, Plaintiff - Appellant v. CITY OF HOUSTON, MISSISSIPPI, Defendant - Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-60117 Document: 00515079190 Page: 1 Date Filed: 08/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n No. 18-60117 FILED\n August 16, 2019\n\nMARY PAULA HARVILLE, Lyle W. Cayce\n Clerk\n Plaintiff - Appellant\n\nv.\n\nCITY OF HOUSTON, MISSISSIPPI,\n\n Defendant - Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Mississippi\n\n\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\nPATRICK E. HIGGINBOTHAM, Circuit Judge.\n Mary Paula Harville appeals the district court’s grant of summary\njudgment on her race discrimination and retaliation claims under Title VII and\n42 U.S.C. § 1981. Harville was terminated from her position as deputy clerk\nwith the City of Houston, Mississippi in 2015 as part of a group of layoffs\ndesigned to offset the City’s budget shortfall. Because Harville fails to present\na genuine issue of material fact that her race was a motivating factor in her\ntermination or that there was a causal connection between her EEOC\ncomplaint and that termination, we affirm.\n\f Case: 18-60117 Document: 00515079190 Page: 2 Date Filed: 08/16/2019\n\n\n\n\n I.\n Harville, a white female, was hired as a deputy clerk by the City of\nHouston in 2005. She worked in that position for approximately ten years. In\nSeptember 2015, the City was facing a budget shortfall and the Board of\nAldermen voted unanimously to eliminate the positions and salaries of four\nCity employees, including Harville’s position. Harville’s claims against the\nCity arise from that termination.\n At the time of her termination, there were four deputy clerks in the\nclerk’s office. The deputy clerks were cross-trained, but each maintained\nprimary duties. Harville’s primary duties included processing and invoicing ad\nvalorem, school, and privilege taxes. During her employment as a deputy clerk,\nHarville enjoyed positive reviews from her superiors. 1 With respect to the other\ndeputies’ duties, Barbara Buggs—who was hired before Harville—was\nresponsible for payroll and insurance, tax receipting, voter registration, and\nhuman resource tasks. Kathy Smith was also hired before Harville and her\nprimary duties included serving as the Municipal Court Clerk. Shequala Jones\nwas the only deputy clerk hired after Harville, in 2007, and she was primarily\nresponsible for collecting water and sewage fees. Smith is also white while\nBuggs and Jones are black. Two of the deputy clerks are related to Alderwoman\nSheina Jones; Buggs is her sister and Jones is her first cousin.\n In the fall of 2015, facing a budget shortfall, the City’s Board began\nworking on a budget for the next fiscal year. Harville was aware of the financial\nproblems and the City Clerk at the time, Margaret Futral, told Harville in\n\n\n\n 1 The City Clerk at the time of Harville’s termination, Margaret Futral, described\nHarville as an excellent employee. Futral also contrasted Harville with the three other\ndeputy clerks, whom she described as spending a lot of time on their phones or social media.\nRetired City Clerk Bobby Sanderson stated that he had never had problems with Harville\nand that she was an “excellent” employee. Former City Clerk Janie Dendy also described her\nas a good employee and stated that she was surprised that Harville had been let go.\n\f Case: 18-60117 Document: 00515079190 Page: 3 Date Filed: 08/16/2019\n\n\n\n\nAugust or September that the Board was considering reducing the number of\ndeputy clerks from four to three. In preparation for the September 15, 2015\nboard meeting, Futral created a document explaining the steps that had been\ntaken to manage the budget, advocating that the Board keep Harville’s job,\nand proposing a solution of cutting each deputy clerk’s hours by five. Futral\nbelieved Harville’s tax duties were “crucial” and no other deputy clerk could\nperform those tasks. In contrast, Futral noted that Jones had been out for\nmaternity leave for six weeks and the other deputy clerks had adequately\ncovered her job responsibilities. Futral stated that she would resign if the\nBoard chose to terminate Harville, explaining that she would be unable to\nperform the duties of City Clerk with the added responsibility of Harville’s\nduties.\n At the September 15 meeting, the Board entered into an executive\nsession to consider the layoffs. Echoing Futral, Mayor Stacy Parker also\nsuggested that instead of eliminating the positions of four city employees, the\nBoard consider other potential budget savings like cuts to hours and insurance.\nAlderman Uhiren stated that he considered Harville’s job seasonal because it\nwas related to tax collection—Futral disputed that it was seasonal, and again\nadvocated for cutting hours to generate the same cost savings. Futral also\nsuggested that it would make more sense to cut Jones’s job, because the other\ndeputies had covered her responsibilities during her maternity leave—Futral\ndid not know how to perform Harville’s job. Alderwoman Jones responded that\nBuggs (her sister) had trained Harville and knew the job. 2 In a final attempt\nto save Harville’s position, Futral asked if all four deputies could remain\nemployed if she resigned (meaning one deputy would be promoted to City\n\n\n 2 It later became apparent that Buggs did not know how to do Harville’s job. In her\ndeposition, Futral stated that after Harville’s departure, approximately 80 percent of the\nwork fell to Futral and Buggs was unable to assist.\n\f Case: 18-60117 Document: 00515079190 Page: 4 Date Filed: 08/16/2019\n\n\n\n\nClerk). The Board determined that if Futral resigned the City would post the\nclerk’s job rather than promoting from within. The Board ultimately rejected\nall of the proposed solutions that would preserve Harville’s job and voted\nunanimously to eliminate four full-time positions, including Harville’s. 3\nImmediately after the meeting concluded, Harville spoke to Mayor Parker and\nFutral. According to Harville, Parker told her she was terminated because the\nBoard had determined that her job was seasonal. The Board has not posted or\nfilled Harville’s position since her departure. Harville filed a charge of\ndiscrimination with the Equal Employment Opportunity Commission on\nNovember 3, 2015—alleging she was discriminated against on the basis of her\nrace and age—and, upon her request, was given notice of her right to sue in\nFebruary 2016.\n Futral resigned in March 2016, approximately six months after\nHarville’s termination. The Board accepted her resignation and voted to\nadvertise the position of City Clerk. The advertisements ran in the local\nnewspaper, the Chickasaw Journal, starting in March 2016. Harville\nsubmitted an application each time the position was listed. Although the City\naccepted applications between March and November 2016, it chose not to\ninterview any candidates for the position because of the cost-savings of the City\nClerk’s salary. During the Board’s July 2016 meeting, the Board discussed the\npossibility of contracting an accountant part-time to prepare the City’s budget\nrather than hiring a full-time clerk. The August 2016 advertisement was\nrevised accordingly to include preferred qualifications of being a CPA or having\na four-year degree in accounting and to reflect that the position was either\n\n\n\n\n 3 The other positions eliminated were public works supervisor, code enforcement\nofficer, and park employee.\n\f Case: 18-60117 Document: 00515079190 Page: 5 Date Filed: 08/16/2019\n\n\n\n\npart-time or full-time. 4 The Mayor successfully prepared the 2017 budget while\nthe clerk position was vacant, but because the task was time-consuming for\nthe Mayor, the Board voted to advertise the position again. After applying for\nthe posted position in March and May and not receiving an interview, Harville\nfiled a second EEOC charge of discrimination on August 1, 2016, alleging that\nthe City had refused to interview her in retaliation for her earlier EEOC charge\nand her filing of the complaint in this case.\n After the position was posted a final time in September, the Board\nreviewed between fifteen and twenty applications and chose to interview two\ncandidates: Harville and Lisa Sanford. Sanford held a Bachelor of Science in\nAccounting from Mississippi University for Women and had over thirty years\nof accounting experience. 5 The Board asked the same questions of both\ncandidates. After the interviews, the Board voted unanimously to hire Sanford\non November 15, 2016. On November 29, 2016, Harville filed a supplemental\nEEOC charge, informing the EEOC of the advertisement with revised\nqualifications, her interview, and Sanford’s hiring. At her request, she received\na second notice of her right to sue in February 2017.\n Harville filed this suit in the Northern District of Mississippi in April\n2016 alleging racial discrimination under Title VII and 42 U.S.C. § 1981 and\nage discrimination under the ADEA. Harville amended her complaint in\nFebruary 2017 to add her claim for retaliation under Title VII, based on the\nCity’s decision not to hire her for the clerk position. The district court granted\nsummary judgment on all claims on January 30, 2018. This appeal followed. 6\n\n\n\n 4 The lack of a degree would not however preclude an otherwise qualified candidate\nfrom being considered.\n 5 Sanford was also previously employed as the Accountant and Public Utilities Office\n\nManager for the City of Carthage.\n 6 Harville appeals the district court’s decision as to her race discrimination and\n\nretaliation claims, not the age discrimination claim.\n\f Case: 18-60117 Document: 00515079190 Page: 6 Date Filed: 08/16/2019\n\n\n\n\n II.\n We review a district court’s grant of summary judgment de novo, viewing\nall facts and drawing all inferences in a light most favorable to the non-moving\nparty. 7 Summary judgment is appropriate only if, viewing the evidence in the\nlight most favorable to the non-moving party, “the movant shows that there is\nno genuine dispute as to any material fact and the movant is entitled to\njudgment as a matter of law.” 8 “A fact is material if it ‘might affect the outcome\nof the suit’ [and a] factual dispute is genuine ‘if the evidence is such that a\nreasonable jury could return a verdict for the nonmoving party.’” 9\n III.\n Harville’s Title VII claim relies on circumstantial evidence and is\ntherefore subject to the burden-shifting framework set out in McDonnell\nDouglas Corp. v. Green. 10 Under that framework, Harville has the initial\nburden to establish a prima facie case of discrimination—she must produce\nevidence that she (1) is a member of a protected class, (2) was qualified for the\nposition that she held, (3) was subject to an adverse employment action, and\n(4) was replaced by someone outside of her protected class or treated less\nfavorably than other similarity-situated employees who were not in her\nprotected class. 11 The prima facie case, once established, creates a presumption\nof discrimination and the burden then shifts to the City to articulate a\n\n\n 7 Alkhawaldeh v. Dow Chemical Co., 851 F.3d 422, 425–26 (5th Cir. 2017) (citing\nBurell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016)).\n 8 Fed. R. Civ. P. 56(a).\n 9 Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019) (citing Anderson v. Liberty\n\nLobby, Inc., 477 U.S. 242, 248 (1986)).\n 10 411 U.S. 792 (1973). Although Harville brings her claims under Title VII and\n\nSection 1981, “we refer only to Title VII, because ‘when used as parallel causes of action, Title\nVII and Section 1981 require the same proof to establish liability,’ and ‘it would be redundant\nto refer to both of them.’” Outley v. Luke & Assocs., Inc., 840 F.3d 212, 2016 n.3 (5th Cir. 2016)\n(quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999)\n(internal alterations omitted)).\n 11 Alkhawaldeh, 851 F.3d at 426.\n\f Case: 18-60117 Document: 00515079190 Page: 7 Date Filed: 08/16/2019\n\n\n\n\nlegitimate, non-discriminatory reason for the adverse employment action. 12 If\nthe City is able to articulate a legitimate, non-discriminatory reason for the\ntermination, the burden shifts back to Harville to “demonstrate that the\nemployer’s proffered reason is a pretext for discrimination.” 13\n The district court held that Harville had made out a prima facie case for\nrace discrimination. In its brief, the City urges us not to accept that finding on\nappeal, suggesting that Harville fails to make out the fourth element of her\nprima facie case because Harville was not replaced and she is unable to show\nthat a similarly-situated employee was treated more favorably. It is\nundisputed that Harville was not replaced, and the City contends she failed to\nshow that a similarly-situated employee was treated more favorably.\nPrincipally, the City argues Shequala Jones is not a proper comparator because\nJones and Harville had different levels of education and job responsibilities.\n The City interprets that fourth prong with too much granularity. To\nestablish the fourth prong of her prima facie case here, Harville must\ndemonstrate she was treated less favorably because of race than were other\nsimilarly situated employees who were not members of that protected class. 14\nWe have emphasized that “nearly identical” is not synonymous with\n“identical.” 15 “The employment actions being compared will be deemed to have\n\n\n\n 12 Shackelford, 190 F.3d at 404.\n 13 Alkhawaldeh, 851 F.3d at 426 (quoting Munoz v. Orr, 200 F.3d 291, 299 (5th Cir.\n2000) (internal quotation marks omitted)).\n 14 Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). In her reply brief,\n\nHarville suggests that the similarly-situated standard applies only where the employee was\nfired for misconduct and the court must consider whether the misconduct was nearly\nidentical. But that test also applies in reduction-in-force cases and is framed as whether other\nemployees, who were not members of the protected class, remained in similar positions. See\ne.g., Ortiz v. Shaw Grp., Inc., 250 F. App’x 603, 606 (5th Cir. 2007) (per curiam). In other\nwords, the question is whether similarly situated employees who were not members of the\nprotected class avoided the layoffs.\n 15 Lee, 574 F.3d at 260 (“Applied to the broader circumstances of a plaintiff’s\n\nemployment and that of his proffered comparator, a requirement of complete or total identity\n\f Case: 18-60117 Document: 00515079190 Page: 8 Date Filed: 08/16/2019\n\n\n\n\nbeen taken under nearly identical circumstances when the employees being\ncompared held the same job or responsibilities, shared the same supervisor or\nhad their employment status determined by the same person, and have\nessentially comparable violation histories.” 16 Here, Harville and Jones held the\nsame position—both were deputy clerks. And while each deputy clerk had\nspecialization in certain tasks in the office, the four employees were cross-\ntrained, evidenced by the lists of job duties and the fact that three deputy\nclerks were able to cover Jones’s duties adequately while she was on maternity\nleave. Further, all four deputy clerks had the same supervisor. The district\ncourt was correct in concluding that Harville has made out the fourth prong of\nher prima facie case—she has produced sufficient evidence that would permit\na reasonable fact-finder to conclude that she and Jones are similarly-\nsituated. 17 Based on their shared characteristics, a reasonable jury could\nconclude that the City engaged in disparate treatment.\n Having established her prima facie case, the burden shifts to the City to\narticulate a legitimate non-discriminatory reason for the adverse employment\naction. Here, the City met this burden by offering sufficient evidence of its non-\ndiscriminatory reason for terminating Harville: the City was facing a budget\nshortfall and chose to implement a reduction in force. The City chose Harville’s\nposition—rather than one of the other three deputy clerks—because it believed\nher primary duties (taxes) were seasonal. The burden then shifts back to\nHarville to demonstrate that the City’s proffered reason was a pretext for\ndiscrimination.\n\n\n\n\nrather than near identity would be essentially insurmountable, as it would only be in the\nrarest of circumstances that the situations of two employees would be totally identical.”).\n 16 Id.\n 17 Morris v. Town of Independence, 827 F.3d 396, 402 (5th Cir. 2016).\n\f Case: 18-60117 Document: 00515079190 Page: 9 Date Filed: 08/16/2019\n\n\n\n\n The district court held that Harville failed to present evidence that the\nCity’s non-discriminatory reason for her termination was merely a pretext and\ntherefore did not meet her burden under the McDonnell-Douglas framework.\nOn appeal, Harville argues that the district court misapplied the Supreme\nCourt’s precedent in Reeves v. Sanderson Plumbing Products, Inc. 18 Harville\nfaults the district court for failing to draw all reasonable inferences from the\nevidence she presented, primarily the testimony of the former city clerk,\nFutral. She urges that she presented adequate evidence that the City’s non-\ndiscriminatory explanation was pretextual because Futral testified that\nHarville’s job was not seasonal and would be the hardest job to replace because\nshe did not know how to complete Harville’s tax duties. Harville also takes\nissue with the district court’s conclusion that Harville conflated discrimination\nwith nepotism. She asserts that it is the province of the jury to make such an\ninference and suggests that even if it was legitimate to infer the decision was\nmotivated by nepotism, making kinship to a black alderperson a job\nqualification itself discriminates on the basis of race. Principally, Harville\nsuggests that the district court’s conclusions were in fact jury questions.\n In Reeves, the Supreme Court considered an employee’s age\ndiscrimination claim and clarified how a plaintiff may establish that an\nemployer’s nondiscriminatory explanation is pretextual. 19 The Court held that\na plaintiff’s prima facie case of discrimination, taken with sufficient evidence\nfrom which a reasonable factfinder could reject the employer’s\nnondiscriminatory explanation for its decision, can be adequate to sustain a\nfinding of liability for intentional discrimination. 20 The Court warned,\nhowever, that such a showing will not always be adequate to sustain a liability\n\n\n 18 530 U.S. 133 (2000).\n 19 Id. at 137.\n 20 Id. at 148.\n\f Case: 18-60117 Document: 00515079190 Page: 10 Date Filed: 08/16/2019\n\n\n\n\nfinding. 21 For example, “no rational factfinder could conclude that the action\nwas discriminatory . . . if the record conclusively revealed some other,\nnondiscriminatory reason for the employer’s decision, or if the plaintiff created\nonly a weak issue of fact as to whether the employer’s reason was untrue and\nthere was abundant and uncontroverted independent evidence that no\ndiscrimination occurred.” 22\n Harville argues that the district court failed to follow Reeves by failing\nto credit her evidence from which a reasonable jury could infer that the\nseasonality explanation was pretextual—namely, that Futral maintained that\nthe job was not seasonal, she had positive reviews from Futral, and that\nAlderwoman Jones suggested that another deputy clerk (her sister) could\nadequately cover Harville’s duties, which turned out to be untrue.\n But Harville does not create a genuine issue of material fact. She does\nnot challenge the City’s explanation that it had to fire a deputy clerk because\nof the budget shortfall, instead questioning only the Board’s decision that her\nposition was best of the four to eliminate because it was seasonal. Although\nHarville presents evidence that Futral told the Board that she did not agree\nthat Harville’s job was seasonal, in her deposition, Futral testified that the\nactual decisionmakers—the members of the board—believed that the job was\nseasonal. 23 The issue at the pretext stage is not whether the Board’s reason\nwas actually correct or fair, but whether the decisionmakers honestly believed\nthe reason. 24 Harville has not provided sufficient evidence from which a jury\n\n\n\n\n 21 Id.\n 22 Id.\n 23 “Q: I mean, did they believe that her job was seasonal? A: You know, I don’t know.\n\nI guess they did. They said it.”\n 24 Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (“The issue at\n\nthe pretext stage is whether Appellee’s reason, even if incorrect, was the real reason for\nAppellant’s termination.”).\n\f Case: 18-60117 Document: 00515079190 Page: 11 Date Filed: 08/16/2019\n\n\n\n\ncould infer that the City’s decision here was not a simple reduction-in-force\ndecision based on objective criteria. 25 Considering the record—including the\nBoard notes and Futral’s testimony—in the light most favorable to Harville,\nno reasonable finder of fact would conclude that the board’s explanation was a\npretext for racial discrimination. Reeves does not relieve a plaintiff of her\nburden to present evidence that will permit a rational factfinder to infer\nintentional discrimination. 26\n The district court also concluded that while Harville may have produced\nsufficient evidence to suggest that the City was motivated by nepotism, that\nwas not evidence of racial discrimination and Harville improperly conflated the\ntwo concepts. 27 On appeal, Harville suggests that any nepotism was itself\nracial discrimination, because it “mak[es] kinship to a black alderperson a job\nqualification.” We agree with the district court that Harville fails to\ndemonstrate how a decision based on family preferences intentionally\ndiscriminated on the basis of race. “Title VII does not protect an employee\nagainst unfair employment decisions; instead, it protects against employment\n\n\n\n\n 25 Robertson v. Alltel Info. Servs., 373 F.3d 647, 652–53 (5th Cir. 2004).\n 26 Reeves, 530 U.S. at 153 (noting that the “ultimate question” in cases alleging\nemployment discrimination “is whether the plaintiff was the victim of intentional\ndiscrimination” and reminding that “the ultimate burden of persuading the trier of fact that\nthe defendant intentionally discriminated against the plaintiff remains at all times with the\nplaintiff”) (internal quotation marks and alterations omitted). The district court did misstate\nthe plaintiff’s burden when discussing the seasonality explanation and cited to a pre-Reeves\ncase, Little v. Republic Refining Co., 924 F.2d 93 (5th Cir. 1991). Harville’s claim fails under\nReeves however, because as discussed, she failed to establish intentional discrimination by\nshowing that the City’s explanation was unworthy of credence. Reeves, 530 U.S. at 143.\n 27 Futral speculated in her deposition that Harville may have been fired because two\n\nof the other deputy clerks were related to Alderwoman Jones and the third was the daughter\nof the former mayor. “You know, if you really want to know the truth, I think they, you know,\ndidn’t want to fire Barbara because she was Sheena’s sister. They didn’t want to fire Shequala\nbecause she was her first cousin. And Kathy had been there a long time and her father was\nthe mayor. That would be you know – so she was the other one. It wasn’t because they didn’t\nlike her or anything.”\n\f Case: 18-60117 Document: 00515079190 Page: 12 Date Filed: 08/16/2019\n\n\n\n\ndecisions based upon discriminatory animus.” 28 Harville conflates the two.\nFurther, even if Harville could demonstrate that Alderwoman Jones’s\nnepotistic decision was grounded in racial animus, she has not demonstrated\nthat Jones’s discriminatory motive infected the entire board or that the other\nmembers were similarly motivated. The Board made the termination decision\nafter a unanimous vote by the five members. Harville does not present evidence\nthat any racial animus by Alderwoman Jones motivated the other members of\nthe Board. 29 At oral argument, Harville’s counsel suggested that Harville\nprovided sufficient evidence of Alderwoman Jones’s influence because the\nminutes showed that Jones had suggested that her sister could do the tax work,\nwhich later proved to be false. That is insufficient to prove that “a majority of\nthe board had [the requisite] animus.” 30\n\n\n\n\n 28 Jones v. Overnite Transp. Co., 212 F. App’x 268, 275 (5th Cir. 2006) (per curiam);\nsee also, e.g., Holder v. City of Raleigh, 867 F.2d 823, 827 (4th Cir. 1989) (“We are not\npersuaded that a preference for family members is inevitably the flip side of racial animus\nfor purposes of federal law.”).\n 29 Griggs v. Chickasaw Cty., Miss., 2019 WL 3229151, at *5 (5th Cir. July 18, 2019)\n\n(considering a municipal liability claim under § 1983 and determining that even where there\nis evidence of animus by individual board members, “the dispositive question is simply\nwhether [the animus] is also chargeable to the Board itself”).\n 30 Id. In a footnote to her reply brief, Harville suggests that a jury could infer that\n\nAlderwoman Jones was racially-biased and exercised influence over other members of the\nboard—the cat’s paw theory of causation blessed by the Supreme Court in Staub v. Proctor\nHosp., 562 U.S. 411 (2011). The City responds that Harville waived the argument by failing\nto raise it until her reply. See July 23, 2019 28(j) letter. Even if it was not waived, her cat’s\npaw theory fails. In Staub, the Court held that “if a supervisor performs an act motivated by\n[impermissible] bias that is intended by the supervisor to cause an adverse employment\naction, and if that act is a proximate cause of the ultimate employment action, then the\nemployer is liable.” Staub, 562 U.S. at 422. Here, the fatal flaw in Harville’s theory is that\nshe failed to present sufficient evidence that Alderwoman Jones’s vote was motivated by\nracial animus. A jury can only make a reasonable inference that Alderwoman Jones’s racial\nanimus influenced the other members of the board if there is threshold evidence of\nAlderwoman Jones’s racial animus. To invoke the cat’s paw theory of causation, Harville\nmust establish “(1) that a co-worker exhibited discriminatory animus, and (2) that the same\nco-worker possessed leverage, or exerted influence, over the titular decisionmaker.”\nRobertson, 373 F.3d at 653 (internal citations omitted). Harville makes no such showing here.\n\f Case: 18-60117 Document: 00515079190 Page: 13 Date Filed: 08/16/2019\n\n\n\n\n In sum, Harville has failed to provide evidence sufficient to create a\ngenuine issue of material fact that the City’s proffered explanation was a\npretext for racial discrimination. The Court in Reeves reminded that each case\nwill depend “the strength of the plaintiff’s prima facie case, the probative value\nof the proof that the employer’s explanation is false, and any other evidence\nthat supports the employer’s case.” 31 Here, Harville does not meet her burden\nand produce evidence that would allow a finding of unlawful discrimination.\n IV.\n Harville also challenges the district court’s decision to grant summary\njudgment for the City on her Title VII retaliation claim. To establish a prima\nfacie case of retaliation under Title VII, Harville must show that (1) she\nengaged in a Title VII protected activity; (2) she was subject to an adverse\nemployment action; and (3) there was a but-for causal connection between her\nemployment in the protected activity and the adverse employment action. 32 It\nis undisputed that Harville establishes the first two prongs of her prima facie\ncase: on November 3, 2015, she filed her first EEOC charge and on April 20,\n2016, she filed her first complaint in this suit—both are protected activities\nunder Title VII. The City chose to hire Lisa Sanford for the position rather than\nHarville, adversely affecting her. The district court concluded that Harville\nfailed to meet her burden to establish a causal connection between her\nprotected activities and the City’s decision not to hire her.\n We agree. Temporal proximity between an employer’s knowledge of a\nprotected activity and an adverse employment action can constitute sufficient\nevidence of causality to establish a prima facie case, but that proximity must\nbe “very close.” 33 Harville’s first EEOC complaint was filed in November 2015.\n\n\n 31 Reeves, 530 U.S. at 148–49.\n 32 Cabral v. Brennan, 853 F.3d 763, 766–67 (5th Cir. 2017).\n 33 Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 273 (2001).\n\f Case: 18-60117 Document: 00515079190 Page: 14 Date Filed: 08/16/2019\n\n\n\n\nOn appeal, she urges that she suffered her first adverse employment action\nwhen the City posted the job in March 2016, she applied, and the City decided\nnot to interview her. But the City did not interview any candidate at that time\nand Harville was granted an interview when the City decided to start\nconducting interviews in November 2016. The temporal proximity between her\nfirst EEOC charge and the City’s decision to hire Sanford—12 months—is not\nsufficient to establish her prima facie case. 34 While Harville supplemented her\nEEOC charge twice and filed her legal complaint on April 20, 2016, the\ntemporal clock does not “re-start” with each protected activity. 35 The relevant\nprotected activity was her first EEOC charge filed in November 2015, a full\nyear before the City’s decision to hire Sanford.\n Even assuming Harville could make out her prima facie case, she has\nnot produced sufficient evidence that the City’s legitimate, non-retaliatory\nrationale for its hiring decision was pretextual. “A plaintiff may show pretext\neither through evidence of disparate treatment or by showing that the\nemployer’s proffered explanation is false or unworthy of credence.” 36 The City\nstates that it chose not to interview any candidate when the job was first posted\nbecause of budgetary restraints and justifies its decision to hire Sanford\ninstead of Harville based on Sanford’s accounting degree and thirty years of\naccounting experience. This is borne out by the record—Board minutes\ndocument discussions reflecting the cost-savings of keeping the Clerk’s position\nvacant and explain the decision to change the job-posting, opening it to part-\n\n\n\n 34 Gorman v. Verizon Wireless Texas, LLC, 753 F.3d 165, 171 (5th Cir. 2014) (holding\nthat ten months was too long to establish the temporal proximity necessary to make the third\nprong of plaintiff’s prima facie case).\n 35 Alkhawaldeh, 851 F.3d at 422 n.23 (“But a Title VII claimant cannot, with each\n\nprotected activity, re-start ‘the temporal-proximity clock.’”).\n 36 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting Jackson v.\n\nCal-Western Packaging Corp., 602 F.3d 374, 378–79 (5th Cir. 2010) (internal quotation marks\nomitted)).\n\f Case: 18-60117 Document: 00515079190 Page: 15 Date Filed: 08/16/2019\n\n\n\n\ntime applicants and adding a preferred accounting degree qualification. 37\nHarville does not raise a genuine issue of material fact that the City’s reasons\nwere pretext for its retaliatory motives. While she highlights her experience in\nthe office, she cannot show that she was “clearly better qualified” than Sanford\ngiven Sanford’s education and experience. 38 Even if Harville could establish a\nprima facie case, and we agree with the district court that she could not, the\nCity provided legitimate, non-retaliatory reasons for its delay in conducting\ninterviews and its decision to hire Sanford, which Harville was unable to\ndemonstrate were unworthy of credence.\n V.\n We affirm the decision of the district court.\n\n\n\n\n 37 While Harville objects to the district court’s consideration of the affidavit of\nAlderman Thomas, contending that he was an interested witness and the court may only\ncredit the evidence of the movant that comes from a disinterested witness. We have rejected\nthis argument. Robertson, 373 F.3d at 653. As in Robertson, the record here indicates that\nThomas’s affidavit was uncontradicted and unimpeached and Harville presents no evidence\nthat the City relied on impermissible considerations. Id.\n 38 Moss, 610 F.3d at 923; Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.\n\n1996) (emphasizing that experience does not alone establish qualification).\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Mary Paula HARVILLE, Plaintiff - Appellant v. CITY OF HOUSTON, MISSISSIPPI, Defendant - Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-60117 Document: 00515079190 Page: 1 Date Filed: 08/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n No. 18-60117 FILED\\n August 16, 2019\\n\\nMARY PAULA HARVILLE, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellant\\n\\nv.\\n\\nCITY OF HOUSTON, MISSISSIPPI,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Mississippi\\n\\n\\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge.\\n Mary Paula Harville appeals the district court’s grant of summary\\njudgment on her race discrimination and retaliation claims under Title VII and\\n42 U.S.C. § 1981. Harville was terminated from her position as deputy clerk\\nwith the City of Houston, Mississippi in 2015 as part of a group of layoffs\\ndesigned to offset the City’s budget shortfall. Because Harville fails to present\\na genuine issue of material fact that her race was a motivating factor in her\\ntermination or that there was a causal connection between her EEOC\\ncomplaint and that termination, we affirm.\\n\\f Case: 18-60117 Document: 00515079190 Page: 2 Date Filed: 08/16/2019\\n\\n\\n\\n\\n I.\\n Harville, a white female, was hired as a deputy clerk by the City of\\nHouston in 2005. She worked in that position for approximately ten years. In\\nSeptember 2015, the City was facing a budget shortfall and the Board of\\nAldermen voted unanimously to eliminate the positions and salaries of four\\nCity employees, including Harville’s position. Harville’s claims against the\\nCity arise from that termination.\\n At the time of her termination, there were four deputy clerks in the\\nclerk’s office. The deputy clerks were cross-trained, but each maintained\\nprimary duties. Harville’s primary duties included processing and invoicing ad\\nvalorem, school, and privilege taxes. During her employment as a deputy clerk,\\nHarville enjoyed positive reviews from her superiors. 1 With respect to the other\\ndeputies’ duties, Barbara Buggs—who was hired before Harville—was\\nresponsible for payroll and insurance, tax receipting, voter registration, and\\nhuman resource tasks. Kathy Smith was also hired before Harville and her\\nprimary duties included serving as the Municipal Court Clerk. Shequala Jones\\nwas the only deputy clerk hired after Harville, in 2007, and she was primarily\\nresponsible for collecting water and sewage fees. Smith is also white while\\nBuggs and Jones are black. Two of the deputy clerks are related to Alderwoman\\nSheina Jones; Buggs is her sister and Jones is her first cousin.\\n In the fall of 2015, facing a budget shortfall, the City’s Board began\\nworking on a budget for the next fiscal year. Harville was aware of the financial\\nproblems and the City Clerk at the time, Margaret Futral, told Harville in\\n\\n\\n\\n 1 The City Clerk at the time of Harville’s termination, Margaret Futral, described\\nHarville as an excellent employee. Futral also contrasted Harville with the three other\\ndeputy clerks, whom she described as spending a lot of time on their phones or social media.\\nRetired City Clerk Bobby Sanderson stated that he had never had problems with Harville\\nand that she was an “excellent” employee. Former City Clerk Janie Dendy also described her\\nas a good employee and stated that she was surprised that Harville had been let go.\\n\\f Case: 18-60117 Document: 00515079190 Page: 3 Date Filed: 08/16/2019\\n\\n\\n\\n\\nAugust or September that the Board was considering reducing the number of\\ndeputy clerks from four to three. In preparation for the September 15, 2015\\nboard meeting, Futral created a document explaining the steps that had been\\ntaken to manage the budget, advocating that the Board keep Harville’s job,\\nand proposing a solution of cutting each deputy clerk’s hours by five. Futral\\nbelieved Harville’s tax duties were “crucial” and no other deputy clerk could\\nperform those tasks. In contrast, Futral noted that Jones had been out for\\nmaternity leave for six weeks and the other deputy clerks had adequately\\ncovered her job responsibilities. Futral stated that she would resign if the\\nBoard chose to terminate Harville, explaining that she would be unable to\\nperform the duties of City Clerk with the added responsibility of Harville’s\\nduties.\\n At the September 15 meeting, the Board entered into an executive\\nsession to consider the layoffs. Echoing Futral, Mayor Stacy Parker also\\nsuggested that instead of eliminating the positions of four city employees, the\\nBoard consider other potential budget savings like cuts to hours and insurance.\\nAlderman Uhiren stated that he considered Harville’s job seasonal because it\\nwas related to tax collection—Futral disputed that it was seasonal, and again\\nadvocated for cutting hours to generate the same cost savings. Futral also\\nsuggested that it would make more sense to cut Jones’s job, because the other\\ndeputies had covered her responsibilities during her maternity leave—Futral\\ndid not know how to perform Harville’s job. Alderwoman Jones responded that\\nBuggs (her sister) had trained Harville and knew the job. 2 In a final attempt\\nto save Harville’s position, Futral asked if all four deputies could remain\\nemployed if she resigned (meaning one deputy would be promoted to City\\n\\n\\n 2 It later became apparent that Buggs did not know how to do Harville’s job. In her\\ndeposition, Futral stated that after Harville’s departure, approximately 80 percent of the\\nwork fell to Futral and Buggs was unable to assist.\\n\\f Case: 18-60117 Document: 00515079190 Page: 4 Date Filed: 08/16/2019\\n\\n\\n\\n\\nClerk). The Board determined that if Futral resigned the City would post the\\nclerk’s job rather than promoting from within. The Board ultimately rejected\\nall of the proposed solutions that would preserve Harville’s job and voted\\nunanimously to eliminate four full-time positions, including Harville’s. 3\\nImmediately after the meeting concluded, Harville spoke to Mayor Parker and\\nFutral. According to Harville, Parker told her she was terminated because the\\nBoard had determined that her job was seasonal. The Board has not posted or\\nfilled Harville’s position since her departure. Harville filed a charge of\\ndiscrimination with the Equal Employment Opportunity Commission on\\nNovember 3, 2015—alleging she was discriminated against on the basis of her\\nrace and age—and, upon her request, was given notice of her right to sue in\\nFebruary 2016.\\n Futral resigned in March 2016, approximately six months after\\nHarville’s termination. The Board accepted her resignation and voted to\\nadvertise the position of City Clerk. The advertisements ran in the local\\nnewspaper, the Chickasaw Journal, starting in March 2016. Harville\\nsubmitted an application each time the position was listed. Although the City\\naccepted applications between March and November 2016, it chose not to\\ninterview any candidates for the position because of the cost-savings of the City\\nClerk’s salary. During the Board’s July 2016 meeting, the Board discussed the\\npossibility of contracting an accountant part-time to prepare the City’s budget\\nrather than hiring a full-time clerk. The August 2016 advertisement was\\nrevised accordingly to include preferred qualifications of being a CPA or having\\na four-year degree in accounting and to reflect that the position was either\\n\\n\\n\\n\\n 3 The other positions eliminated were public works supervisor, code enforcement\\nofficer, and park employee.\\n\\f Case: 18-60117 Document: 00515079190 Page: 5 Date Filed: 08/16/2019\\n\\n\\n\\n\\npart-time or full-time. 4 The Mayor successfully prepared the 2017 budget while\\nthe clerk position was vacant, but because the task was time-consuming for\\nthe Mayor, the Board voted to advertise the position again. After applying for\\nthe posted position in March and May and not receiving an interview, Harville\\nfiled a second EEOC charge of discrimination on August 1, 2016, alleging that\\nthe City had refused to interview her in retaliation for her earlier EEOC charge\\nand her filing of the complaint in this case.\\n After the position was posted a final time in September, the Board\\nreviewed between fifteen and twenty applications and chose to interview two\\ncandidates: Harville and Lisa Sanford. Sanford held a Bachelor of Science in\\nAccounting from Mississippi University for Women and had over thirty years\\nof accounting experience. 5 The Board asked the same questions of both\\ncandidates. After the interviews, the Board voted unanimously to hire Sanford\\non November 15, 2016. On November 29, 2016, Harville filed a supplemental\\nEEOC charge, informing the EEOC of the advertisement with revised\\nqualifications, her interview, and Sanford’s hiring. At her request, she received\\na second notice of her right to sue in February 2017.\\n Harville filed this suit in the Northern District of Mississippi in April\\n2016 alleging racial discrimination under Title VII and 42 U.S.C. § 1981 and\\nage discrimination under the ADEA. Harville amended her complaint in\\nFebruary 2017 to add her claim for retaliation under Title VII, based on the\\nCity’s decision not to hire her for the clerk position. The district court granted\\nsummary judgment on all claims on January 30, 2018. This appeal followed. 6\\n\\n\\n\\n 4 The lack of a degree would not however preclude an otherwise qualified candidate\\nfrom being considered.\\n 5 Sanford was also previously employed as the Accountant and Public Utilities Office\\n\\nManager for the City of Carthage.\\n 6 Harville appeals the district court’s decision as to her race discrimination and\\n\\nretaliation claims, not the age discrimination claim.\\n\\f Case: 18-60117 Document: 00515079190 Page: 6 Date Filed: 08/16/2019\\n\\n\\n\\n\\n II.\\n We review a district court’s grant of summary judgment de novo, viewing\\nall facts and drawing all inferences in a light most favorable to the non-moving\\nparty. 7 Summary judgment is appropriate only if, viewing the evidence in the\\nlight most favorable to the non-moving party, “the movant shows that there is\\nno genuine dispute as to any material fact and the movant is entitled to\\njudgment as a matter of law.” 8 “A fact is material if it ‘might affect the outcome\\nof the suit’ [and a] factual dispute is genuine ‘if the evidence is such that a\\nreasonable jury could return a verdict for the nonmoving party.’” 9\\n III.\\n Harville’s Title VII claim relies on circumstantial evidence and is\\ntherefore subject to the burden-shifting framework set out in McDonnell\\nDouglas Corp. v. Green. 10 Under that framework, Harville has the initial\\nburden to establish a prima facie case of discrimination—she must produce\\nevidence that she (1) is a member of a protected class, (2) was qualified for the\\nposition that she held, (3) was subject to an adverse employment action, and\\n(4) was replaced by someone outside of her protected class or treated less\\nfavorably than other similarity-situated employees who were not in her\\nprotected class. 11 The prima facie case, once established, creates a presumption\\nof discrimination and the burden then shifts to the City to articulate a\\n\\n\\n 7 Alkhawaldeh v. Dow Chemical Co., 851 F.3d 422, 425–26 (5th Cir. 2017) (citing\\nBurell v. Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016)).\\n 8 Fed. R. Civ. P. 56(a).\\n 9 Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019) (citing Anderson v. Liberty\\n\\nLobby, Inc., 477 U.S. 242, 248 (1986)).\\n 10 411 U.S. 792 (1973). Although Harville brings her claims under Title VII and\\n\\nSection 1981, “we refer only to Title VII, because ‘when used as parallel causes of action, Title\\nVII and Section 1981 require the same proof to establish liability,’ and ‘it would be redundant\\nto refer to both of them.’” Outley v. Luke & Assocs., Inc., 840 F.3d 212, 2016 n.3 (5th Cir. 2016)\\n(quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999)\\n(internal alterations omitted)).\\n 11 Alkhawaldeh, 851 F.3d at 426.\\n\\f Case: 18-60117 Document: 00515079190 Page: 7 Date Filed: 08/16/2019\\n\\n\\n\\n\\nlegitimate, non-discriminatory reason for the adverse employment action. 12 If\\nthe City is able to articulate a legitimate, non-discriminatory reason for the\\ntermination, the burden shifts back to Harville to “demonstrate that the\\nemployer’s proffered reason is a pretext for discrimination.” 13\\n The district court held that Harville had made out a prima facie case for\\nrace discrimination. In its brief, the City urges us not to accept that finding on\\nappeal, suggesting that Harville fails to make out the fourth element of her\\nprima facie case because Harville was not replaced and she is unable to show\\nthat a similarly-situated employee was treated more favorably. It is\\nundisputed that Harville was not replaced, and the City contends she failed to\\nshow that a similarly-situated employee was treated more favorably.\\nPrincipally, the City argues Shequala Jones is not a proper comparator because\\nJones and Harville had different levels of education and job responsibilities.\\n The City interprets that fourth prong with too much granularity. To\\nestablish the fourth prong of her prima facie case here, Harville must\\ndemonstrate she was treated less favorably because of race than were other\\nsimilarly situated employees who were not members of that protected class. 14\\nWe have emphasized that “nearly identical” is not synonymous with\\n“identical.” 15 “The employment actions being compared will be deemed to have\\n\\n\\n\\n 12 Shackelford, 190 F.3d at 404.\\n 13 Alkhawaldeh, 851 F.3d at 426 (quoting Munoz v. Orr, 200 F.3d 291, 299 (5th Cir.\\n2000) (internal quotation marks omitted)).\\n 14 Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). In her reply brief,\\n\\nHarville suggests that the similarly-situated standard applies only where the employee was\\nfired for misconduct and the court must consider whether the misconduct was nearly\\nidentical. But that test also applies in reduction-in-force cases and is framed as whether other\\nemployees, who were not members of the protected class, remained in similar positions. See\\ne.g., Ortiz v. Shaw Grp., Inc., 250 F. App’x 603, 606 (5th Cir. 2007) (per curiam). In other\\nwords, the question is whether similarly situated employees who were not members of the\\nprotected class avoided the layoffs.\\n 15 Lee, 574 F.3d at 260 (“Applied to the broader circumstances of a plaintiff’s\\n\\nemployment and that of his proffered comparator, a requirement of complete or total identity\\n\\f Case: 18-60117 Document: 00515079190 Page: 8 Date Filed: 08/16/2019\\n\\n\\n\\n\\nbeen taken under nearly identical circumstances when the employees being\\ncompared held the same job or responsibilities, shared the same supervisor or\\nhad their employment status determined by the same person, and have\\nessentially comparable violation histories.” 16 Here, Harville and Jones held the\\nsame position—both were deputy clerks. And while each deputy clerk had\\nspecialization in certain tasks in the office, the four employees were cross-\\ntrained, evidenced by the lists of job duties and the fact that three deputy\\nclerks were able to cover Jones’s duties adequately while she was on maternity\\nleave. Further, all four deputy clerks had the same supervisor. The district\\ncourt was correct in concluding that Harville has made out the fourth prong of\\nher prima facie case—she has produced sufficient evidence that would permit\\na reasonable fact-finder to conclude that she and Jones are similarly-\\nsituated. 17 Based on their shared characteristics, a reasonable jury could\\nconclude that the City engaged in disparate treatment.\\n Having established her prima facie case, the burden shifts to the City to\\narticulate a legitimate non-discriminatory reason for the adverse employment\\naction. Here, the City met this burden by offering sufficient evidence of its non-\\ndiscriminatory reason for terminating Harville: the City was facing a budget\\nshortfall and chose to implement a reduction in force. The City chose Harville’s\\nposition—rather than one of the other three deputy clerks—because it believed\\nher primary duties (taxes) were seasonal. The burden then shifts back to\\nHarville to demonstrate that the City’s proffered reason was a pretext for\\ndiscrimination.\\n\\n\\n\\n\\nrather than near identity would be essentially insurmountable, as it would only be in the\\nrarest of circumstances that the situations of two employees would be totally identical.”).\\n 16 Id.\\n 17 Morris v. Town of Independence, 827 F.3d 396, 402 (5th Cir. 2016).\\n\\f Case: 18-60117 Document: 00515079190 Page: 9 Date Filed: 08/16/2019\\n\\n\\n\\n\\n The district court held that Harville failed to present evidence that the\\nCity’s non-discriminatory reason for her termination was merely a pretext and\\ntherefore did not meet her burden under the McDonnell-Douglas framework.\\nOn appeal, Harville argues that the district court misapplied the Supreme\\nCourt’s precedent in Reeves v. Sanderson Plumbing Products, Inc. 18 Harville\\nfaults the district court for failing to draw all reasonable inferences from the\\nevidence she presented, primarily the testimony of the former city clerk,\\nFutral. She urges that she presented adequate evidence that the City’s non-\\ndiscriminatory explanation was pretextual because Futral testified that\\nHarville’s job was not seasonal and would be the hardest job to replace because\\nshe did not know how to complete Harville’s tax duties. Harville also takes\\nissue with the district court’s conclusion that Harville conflated discrimination\\nwith nepotism. She asserts that it is the province of the jury to make such an\\ninference and suggests that even if it was legitimate to infer the decision was\\nmotivated by nepotism, making kinship to a black alderperson a job\\nqualification itself discriminates on the basis of race. Principally, Harville\\nsuggests that the district court’s conclusions were in fact jury questions.\\n In Reeves, the Supreme Court considered an employee’s age\\ndiscrimination claim and clarified how a plaintiff may establish that an\\nemployer’s nondiscriminatory explanation is pretextual. 19 The Court held that\\na plaintiff’s prima facie case of discrimination, taken with sufficient evidence\\nfrom which a reasonable factfinder could reject the employer’s\\nnondiscriminatory explanation for its decision, can be adequate to sustain a\\nfinding of liability for intentional discrimination. 20 The Court warned,\\nhowever, that such a showing will not always be adequate to sustain a liability\\n\\n\\n 18 530 U.S. 133 (2000).\\n 19 Id. at 137.\\n 20 Id. at 148.\\n\\f Case: 18-60117 Document: 00515079190 Page: 10 Date Filed: 08/16/2019\\n\\n\\n\\n\\nfinding. 21 For example, “no rational factfinder could conclude that the action\\nwas discriminatory . . . if the record conclusively revealed some other,\\nnondiscriminatory reason for the employer’s decision, or if the plaintiff created\\nonly a weak issue of fact as to whether the employer’s reason was untrue and\\nthere was abundant and uncontroverted independent evidence that no\\ndiscrimination occurred.” 22\\n Harville argues that the district court failed to follow Reeves by failing\\nto credit her evidence from which a reasonable jury could infer that the\\nseasonality explanation was pretextual—namely, that Futral maintained that\\nthe job was not seasonal, she had positive reviews from Futral, and that\\nAlderwoman Jones suggested that another deputy clerk (her sister) could\\nadequately cover Harville’s duties, which turned out to be untrue.\\n But Harville does not create a genuine issue of material fact. She does\\nnot challenge the City’s explanation that it had to fire a deputy clerk because\\nof the budget shortfall, instead questioning only the Board’s decision that her\\nposition was best of the four to eliminate because it was seasonal. Although\\nHarville presents evidence that Futral told the Board that she did not agree\\nthat Harville’s job was seasonal, in her deposition, Futral testified that the\\nactual decisionmakers—the members of the board—believed that the job was\\nseasonal. 23 The issue at the pretext stage is not whether the Board’s reason\\nwas actually correct or fair, but whether the decisionmakers honestly believed\\nthe reason. 24 Harville has not provided sufficient evidence from which a jury\\n\\n\\n\\n\\n 21 Id.\\n 22 Id.\\n 23 “Q: I mean, did they believe that her job was seasonal? A: You know, I don’t know.\\n\\nI guess they did. They said it.”\\n 24 Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (“The issue at\\n\\nthe pretext stage is whether Appellee’s reason, even if incorrect, was the real reason for\\nAppellant’s termination.”).\\n\\f Case: 18-60117 Document: 00515079190 Page: 11 Date Filed: 08/16/2019\\n\\n\\n\\n\\ncould infer that the City’s decision here was not a simple reduction-in-force\\ndecision based on objective criteria. 25 Considering the record—including the\\nBoard notes and Futral’s testimony—in the light most favorable to Harville,\\nno reasonable finder of fact would conclude that the board’s explanation was a\\npretext for racial discrimination. Reeves does not relieve a plaintiff of her\\nburden to present evidence that will permit a rational factfinder to infer\\nintentional discrimination. 26\\n The district court also concluded that while Harville may have produced\\nsufficient evidence to suggest that the City was motivated by nepotism, that\\nwas not evidence of racial discrimination and Harville improperly conflated the\\ntwo concepts. 27 On appeal, Harville suggests that any nepotism was itself\\nracial discrimination, because it “mak[es] kinship to a black alderperson a job\\nqualification.” We agree with the district court that Harville fails to\\ndemonstrate how a decision based on family preferences intentionally\\ndiscriminated on the basis of race. “Title VII does not protect an employee\\nagainst unfair employment decisions; instead, it protects against employment\\n\\n\\n\\n\\n 25 Robertson v. Alltel Info. Servs., 373 F.3d 647, 652–53 (5th Cir. 2004).\\n 26 Reeves, 530 U.S. at 153 (noting that the “ultimate question” in cases alleging\\nemployment discrimination “is whether the plaintiff was the victim of intentional\\ndiscrimination” and reminding that “the ultimate burden of persuading the trier of fact that\\nthe defendant intentionally discriminated against the plaintiff remains at all times with the\\nplaintiff”) (internal quotation marks and alterations omitted). The district court did misstate\\nthe plaintiff’s burden when discussing the seasonality explanation and cited to a pre-Reeves\\ncase, Little v. Republic Refining Co., 924 F.2d 93 (5th Cir. 1991). Harville’s claim fails under\\nReeves however, because as discussed, she failed to establish intentional discrimination by\\nshowing that the City’s explanation was unworthy of credence. Reeves, 530 U.S. at 143.\\n 27 Futral speculated in her deposition that Harville may have been fired because two\\n\\nof the other deputy clerks were related to Alderwoman Jones and the third was the daughter\\nof the former mayor. “You know, if you really want to know the truth, I think they, you know,\\ndidn’t want to fire Barbara because she was Sheena’s sister. They didn’t want to fire Shequala\\nbecause she was her first cousin. And Kathy had been there a long time and her father was\\nthe mayor. That would be you know – so she was the other one. It wasn’t because they didn’t\\nlike her or anything.”\\n\\f Case: 18-60117 Document: 00515079190 Page: 12 Date Filed: 08/16/2019\\n\\n\\n\\n\\ndecisions based upon discriminatory animus.” 28 Harville conflates the two.\\nFurther, even if Harville could demonstrate that Alderwoman Jones’s\\nnepotistic decision was grounded in racial animus, she has not demonstrated\\nthat Jones’s discriminatory motive infected the entire board or that the other\\nmembers were similarly motivated. The Board made the termination decision\\nafter a unanimous vote by the five members. Harville does not present evidence\\nthat any racial animus by Alderwoman Jones motivated the other members of\\nthe Board. 29 At oral argument, Harville’s counsel suggested that Harville\\nprovided sufficient evidence of Alderwoman Jones’s influence because the\\nminutes showed that Jones had suggested that her sister could do the tax work,\\nwhich later proved to be false. That is insufficient to prove that “a majority of\\nthe board had [the requisite] animus.” 30\\n\\n\\n\\n\\n 28 Jones v. Overnite Transp. Co., 212 F. App’x 268, 275 (5th Cir. 2006) (per curiam);\\nsee also, e.g., Holder v. City of Raleigh, 867 F.2d 823, 827 (4th Cir. 1989) (“We are not\\npersuaded that a preference for family members is inevitably the flip side of racial animus\\nfor purposes of federal law.”).\\n 29 Griggs v. Chickasaw Cty., Miss., 2019 WL 3229151, at *5 (5th Cir. July 18, 2019)\\n\\n(considering a municipal liability claim under § 1983 and determining that even where there\\nis evidence of animus by individual board members, “the dispositive question is simply\\nwhether [the animus] is also chargeable to the Board itself”).\\n 30 Id. In a footnote to her reply brief, Harville suggests that a jury could infer that\\n\\nAlderwoman Jones was racially-biased and exercised influence over other members of the\\nboard—the cat’s paw theory of causation blessed by the Supreme Court in Staub v. Proctor\\nHosp., 562 U.S. 411 (2011). The City responds that Harville waived the argument by failing\\nto raise it until her reply. See July 23, 2019 28(j) letter. Even if it was not waived, her cat’s\\npaw theory fails. In Staub, the Court held that “if a supervisor performs an act motivated by\\n[impermissible] bias that is intended by the supervisor to cause an adverse employment\\naction, and if that act is a proximate cause of the ultimate employment action, then the\\nemployer is liable.” Staub, 562 U.S. at 422. Here, the fatal flaw in Harville’s theory is that\\nshe failed to present sufficient evidence that Alderwoman Jones’s vote was motivated by\\nracial animus. A jury can only make a reasonable inference that Alderwoman Jones’s racial\\nanimus influenced the other members of the board if there is threshold evidence of\\nAlderwoman Jones’s racial animus. To invoke the cat’s paw theory of causation, Harville\\nmust establish “(1) that a co-worker exhibited discriminatory animus, and (2) that the same\\nco-worker possessed leverage, or exerted influence, over the titular decisionmaker.”\\nRobertson, 373 F.3d at 653 (internal citations omitted). Harville makes no such showing here.\\n\\f Case: 18-60117 Document: 00515079190 Page: 13 Date Filed: 08/16/2019\\n\\n\\n\\n\\n In sum, Harville has failed to provide evidence sufficient to create a\\ngenuine issue of material fact that the City’s proffered explanation was a\\npretext for racial discrimination. The Court in Reeves reminded that each case\\nwill depend “the strength of the plaintiff’s prima facie case, the probative value\\nof the proof that the employer’s explanation is false, and any other evidence\\nthat supports the employer’s case.” 31 Here, Harville does not meet her burden\\nand produce evidence that would allow a finding of unlawful discrimination.\\n IV.\\n Harville also challenges the district court’s decision to grant summary\\njudgment for the City on her Title VII retaliation claim. To establish a prima\\nfacie case of retaliation under Title VII, Harville must show that (1) she\\nengaged in a Title VII protected activity; (2) she was subject to an adverse\\nemployment action; and (3) there was a but-for causal connection between her\\nemployment in the protected activity and the adverse employment action. 32 It\\nis undisputed that Harville establishes the first two prongs of her prima facie\\ncase: on November 3, 2015, she filed her first EEOC charge and on April 20,\\n2016, she filed her first complaint in this suit—both are protected activities\\nunder Title VII. The City chose to hire Lisa Sanford for the position rather than\\nHarville, adversely affecting her. The district court concluded that Harville\\nfailed to meet her burden to establish a causal connection between her\\nprotected activities and the City’s decision not to hire her.\\n We agree. Temporal proximity between an employer’s knowledge of a\\nprotected activity and an adverse employment action can constitute sufficient\\nevidence of causality to establish a prima facie case, but that proximity must\\nbe “very close.” 33 Harville’s first EEOC complaint was filed in November 2015.\\n\\n\\n 31 Reeves, 530 U.S. at 148–49.\\n 32 Cabral v. Brennan, 853 F.3d 763, 766–67 (5th Cir. 2017).\\n 33 Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 273 (2001).\\n\\f Case: 18-60117 Document: 00515079190 Page: 14 Date Filed: 08/16/2019\\n\\n\\n\\n\\nOn appeal, she urges that she suffered her first adverse employment action\\nwhen the City posted the job in March 2016, she applied, and the City decided\\nnot to interview her. But the City did not interview any candidate at that time\\nand Harville was granted an interview when the City decided to start\\nconducting interviews in November 2016. The temporal proximity between her\\nfirst EEOC charge and the City’s decision to hire Sanford—12 months—is not\\nsufficient to establish her prima facie case. 34 While Harville supplemented her\\nEEOC charge twice and filed her legal complaint on April 20, 2016, the\\ntemporal clock does not “re-start” with each protected activity. 35 The relevant\\nprotected activity was her first EEOC charge filed in November 2015, a full\\nyear before the City’s decision to hire Sanford.\\n Even assuming Harville could make out her prima facie case, she has\\nnot produced sufficient evidence that the City’s legitimate, non-retaliatory\\nrationale for its hiring decision was pretextual. “A plaintiff may show pretext\\neither through evidence of disparate treatment or by showing that the\\nemployer’s proffered explanation is false or unworthy of credence.” 36 The City\\nstates that it chose not to interview any candidate when the job was first posted\\nbecause of budgetary restraints and justifies its decision to hire Sanford\\ninstead of Harville based on Sanford’s accounting degree and thirty years of\\naccounting experience. This is borne out by the record—Board minutes\\ndocument discussions reflecting the cost-savings of keeping the Clerk’s position\\nvacant and explain the decision to change the job-posting, opening it to part-\\n\\n\\n\\n 34 Gorman v. Verizon Wireless Texas, LLC, 753 F.3d 165, 171 (5th Cir. 2014) (holding\\nthat ten months was too long to establish the temporal proximity necessary to make the third\\nprong of plaintiff’s prima facie case).\\n 35 Alkhawaldeh, 851 F.3d at 422 n.23 (“But a Title VII claimant cannot, with each\\n\\nprotected activity, re-start ‘the temporal-proximity clock.’”).\\n 36 Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (quoting Jackson v.\\n\\nCal-Western Packaging Corp., 602 F.3d 374, 378–79 (5th Cir. 2010) (internal quotation marks\\nomitted)).\\n\\f Case: 18-60117 Document: 00515079190 Page: 15 Date Filed: 08/16/2019\\n\\n\\n\\n\\ntime applicants and adding a preferred accounting degree qualification. 37\\nHarville does not raise a genuine issue of material fact that the City’s reasons\\nwere pretext for its retaliatory motives. While she highlights her experience in\\nthe office, she cannot show that she was “clearly better qualified” than Sanford\\ngiven Sanford’s education and experience. 38 Even if Harville could establish a\\nprima facie case, and we agree with the district court that she could not, the\\nCity provided legitimate, non-retaliatory reasons for its delay in conducting\\ninterviews and its decision to hire Sanford, which Harville was unable to\\ndemonstrate were unworthy of credence.\\n V.\\n We affirm the decision of the district court.\\n\\n\\n\\n\\n 37 While Harville objects to the district court’s consideration of the affidavit of\\nAlderman Thomas, contending that he was an interested witness and the court may only\\ncredit the evidence of the movant that comes from a disinterested witness. We have rejected\\nthis argument. Robertson, 373 F.3d at 653. As in Robertson, the record here indicates that\\nThomas’s affidavit was uncontradicted and unimpeached and Harville presents no evidence\\nthat the City relied on impermissible considerations. Id.\\n 38 Moss, 610 F.3d at 923; Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.\\n\\n1996) (emphasizing that experience does not alone establish qualification).\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3673,"cells":{"id":{"kind":"number","value":4649101,"string":"4,649,101"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"John DeJoria v. Maghreb Petroleum Expl, S.A., et a"},"decision_date":{"kind":"string","value":"2019-08-16"},"docket_number":{"kind":"string","value":"18-50348"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREGG COSTA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50348 Document: 00515079314 Page: 1 Date Filed: 08/16/2019\\n\\n\\n\\n\\n REVISED August 16, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 15, 2019\\n No. 18-50348\\n Lyle W. Cayce\\n Clerk\\nJOHN PAUL DEJORIA,\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nMAGHREB PETROLEUM EXPLORATION, S.A.; MIDEAST FUND FOR\\nMOROCCO, LIMITED,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n In 1999, philanthropist, environmental activist, and haircare and liquor\\ntycoon John Paul DeJoria was attempting to achieve yet another title: oil\\nmagnate. It did not go well. What started as a project that promised to provide\\nMorocco with decades of energy independence ended with a Moroccan court’s\\nlevying a judgment north of $100 million against DeJoria and his business\\npartner. Whether Texas should recognize that foreign judgment is now the\\ncenterpiece of this decades-long dispute. In fact, proving that it is often harder\\nto collect a judgment than win one, this is the second time the question of the\\n\\f Case: 18-50348 Document: 00515079314 Page: 2 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\njudgment’s validity has come before us. This time around we decide whether\\nan interim change in the Texas recognition law violates the state’s\\nconstitutional ban on retroactive laws. If not, we must determine whether the\\ndistrict court properly followed this court’s 2015 mandate and whether it\\nproperly applied the new law.\\n I.\\n The facts of this case are littered across the pages of the Federal\\nReporter. See DeJoria v. Maghreb Petroleum Expl., S.A., 804 F.3d 373 (5th\\nCir. 2015); Skidmore Energy, Inc. v. Maghreb Petroleum Expl., S.A., 337 F.\\nApp’x 706 (9th Cir. 2009); Skidmore Energy, Inc. v. KPMG, 455 F.3d 564 (5th\\nCir. 2006). Because this court has already described the background of this\\ncorner of the dispute, we will do our best not to spill unnecessary ink. See\\nDeJoria, 804 F.3d at 377–78. The winding path the case followed after our\\ncourt’s 2015 remand will spill enough as it is. For now, suffice it to say that in\\n1999 DeJoria and his business partners started Lone Star Energy Corporation\\nin Morocco with the help of King Mohammed VI’s first cousin. The enterprise\\nhoped to discover oil reserves in Northeastern Morocco. The prospects looked\\ngood—so good that the King took to Moroccan airwaves to announce that the\\ncountry would soon be in possession of “copious and high-quality” oil that\\nwould allow Morocco to be self-sufficient for 30 years. The King’s\\nannouncement made the Moroccan stock market jump more than five percent\\nin anticipation of the expected riches.\\n But when the promised reserves did not materialize, the project quickly\\nsoured. DeJoria and his business partner were forced off Lone Star’s board,\\nand, fearing for their lives because of an alleged death threat, fled Morocco,\\nnever to return.\\n Not long after their ouster, DeJoria and his associates were sued in\\nMoroccan commercial court by Lone Star’s new management (now called\\n 2\\n\\f Case: 18-50348 Document: 00515079314 Page: 3 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nMaghreb Petroleum Exploration, S.A.) and its major investor, Mideast Fund\\nfor Morocco. Maghreb, the term we will use to collectively refer to those two\\nentities, alleged that DeJoria and his partners mismanaged Lone Star and\\nfraudulently induced investment in the doomed oil project. Seven years later,\\nthe Moroccan court returned a large judgment for Maghreb. It dismissed\\nclaims against five of the seven defendants, placing the blame—and the bill for\\n969,832,062.22 Moroccan dirhams 1—squarely on DeJoria and his partner.\\n Before going further, a little bit about the legal backdrop is helpful. In\\norder to collect its winnings from DeJoria’s assets in the United States,\\nMaghreb must convince an American court to recognize and enforce the\\nMoroccan judgement. 2 Recognition of foreign-country judgments is a matter\\nof state law and was once mostly governed by principles of comity. See Hilton\\nv. Guyot, 159 U.S. 113, 163–64, 180–81 (1895). In some jurisdictions, comity\\nis still the rule. See, e.g., Kwongyuen Hangkee Co., Ltd. v. Starr Fireworks,\\nInc., 634 N.W.2d 95, 96 (S.D. 2001). But most states have codified their\\nrecognition standards and procedures by enacting the 1962 Uniform Foreign\\nMoney Judgments Recognition Act 3 or its 2005 successor, the Uniform Foreign-\\nCountry Money Judgments Recognition Act. 4 Both acts make foreign\\n\\n\\n 1 Because Maghreb has yet to secure recognition of its judgment, the district court has\\nnot calculated how much it is worth in U.S. dollars. But the parties put the value at around\\n$123 million.\\n 2 Recognition is different from enforcement, but the former is necessary for the latter.\\n\\nSee Yuliya Zeynalova, The Law on Recognition and Enforcement of Foreign Judgments: Is It\\nBroken and How Do We Fix It?, 31 BERKELEY J. INT’L L. 150, 155 (2013) (describing\\nrecognition as akin to domesticating the judgement and enforcement as enlisting the courts\\nand law enforcement to aid in collection). Only recognition is at issue in this case.\\n 3 For a list of the 34 jurisdictions that have enacted the 1962 version, see Foreign\\n\\nMoney Judgments Act, Uniform Law Commission, https://www.uniformlaws.org/\\ncommittees/community-home?CommunityKey=9c11b007-83b2-4bf2-a08e-74f642c840bc (last\\nvisited August 6, 2019).\\n 4 For a list of the 25 jurisdictions that have enacted the 2005 version (for some,\\n\\nrepealing the 1962 version in the process), see Foreign-Country Money Judgments\\n\\n 3\\n\\f Case: 18-50348 Document: 00515079314 Page: 4 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\njudgments that are final and conclusive where rendered “enforceable” in the\\nrelevant state court just like another state’s judgment would be. Unif. Foreign-\\nCountry Money Judgments Recognition Act § 7(2), U.L.A. (2005) (West); Unif.\\nForeign Money Judgment Act § 3, U.L.A. (1962) (West). Although these acts\\npresumptively treat properly filed foreign judgments as enforceable,\\nexceptional circumstances can rebut that presumption. Some of those\\nexceptions are mandatory, others discretionary. If the rendering court did not\\nhave personal jurisdiction over the judgment debtor, for instance, the state\\ncourt (or federal court sitting in diversity) cannot recognize the foreign\\njudgment. 2005 Unif. Act § 4(b)(2); 1962 Unif. Act § 4(a)(2). Other grounds for\\nnonrecognition, like fraud in obtaining the judgment, instead give the\\nAmerican court the option of not recognizing the foreign judgment. 2005 Unif.\\nAct § 4(c)(2); 1962 Unif. Act § 4(b)(2).\\n So, in 2013, Maghreb came to the United States seeking recognition of\\nthe Moroccan judgment. 5 DeJoria resisted in several ways. At the time, Texas\\nhad adopted (with slight modification) the 1962 Uniform Recognition Act. See\\nTEX. CIV. PRAC. & REM. CODE § 36.001–08 (Vernon’s 2015). That law included\\nten nonrecognition grounds. DeJoria pressed seven of them. The district court\\nfocused on only one avenue to nonrecognition. It determined that the Moroccan\\njudgment was “rendered under a system that does not provide impartial\\ntribunals or procedures compatible with the requirements of due process of\\n\\n\\n\\n\\nRecognition Act, Uniform Law Commission, https://www.uniformlaws.org/\\ncommittees/community-home?CommunityKey=ae280c30-094a-4d8f-b722-8dcd614a8f3e\\n(last visited August 6, 2019).\\n 5 The procedural history is a bit more complicated. DeJoria, perhaps believing the\\n\\nbest defense is a good offense, went to Texas court first, seeking preemptive nonrecognition\\nof the Moroccan judgment and an antisuit injunction. Maghreb removed to federal court and\\ncounterclaimed for recognition. But DeJoria eventually dismissed his affirmative claims,\\nconforming this action to the more typical posture—judgment creditor seeking recognition,\\njudgment debtor resisting.\\n 4\\n\\f Case: 18-50348 Document: 00515079314 Page: 5 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nlaw.” Id. § 36.005(a)(1). Because this was a mandatory nonrecognition ground,\\nthe district court refused to recognize the Moroccan judgment and dismissed\\nthe case.\\n We reversed. DeJoria, 804 F.3d at 389. The panel held that, under\\nTexas’s version of the 1962 Uniform Recognition Act, DeJoria could not obtain\\nnonrecognition by showing he was denied due process or impartial tribunals in\\nhis case, but instead had the much greater burden of showing that Morocco’s\\nlegal “system as a whole” was so deficient that no Texas court should ever\\nrecognize a Moroccan judgment. Id. at 381. 6 And although the prior panel’s\\ninquiry focused on whether the Moroccan judicial system could provide\\nAmericans fair proceedings, it remarked that “the record does not establish\\nthat the King actually exerted any improper influence on the Moroccan court\\nin this case.” Id. at 382 n.9. The case was remanded.\\n Back before the district court, and in front of the magistrate judge to\\nwhom the matter was referred, the parties immediately began to squabble over\\nthe scope of that court’s power on remand. 7 DeJoria was adamant that he\\nshould still be allowed to push for nonrecognition on grounds not addressed by\\nthe Fifth Circuit. Maghreb disagreed and moved for entry of judgment. The\\ndistrict court denied Maghreb’s motion, agreeing with DeJoria that he could\\nstill attempt to establish other grounds for nonrecognition.\\n While the sound and fury continued apace in the trial court, a second\\nfront in this dispute opened, this time in the Texas legislature. With the\\ntestimonial aid of one of DeJoria’s lawyers, the 2017 legislative session was\\nconsidering updating the Recognition Act to the 2005 uniform act. Among\\n\\n\\n 6 That panel also rejected another two of DeJoria’s arguments for nonrecognition—\\nthat Morocco would not reciprocally recognize a Texas judgment and that the Moroccan court\\ndid not have personal jurisdiction over DeJoria. DeJoria, 804 F.3d at 384–89.\\n 7 Because the district court adopted the magistrate’s recommendations in all relevant\\n\\nrespects, we will describe the postremand rulings as district court rulings.\\n 5\\n\\f Case: 18-50348 Document: 00515079314 Page: 6 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nother changes, the new law would add two discretionary grounds for\\nnonrecognition: a court would be able to deny recognition if “the judgment was\\nrendered in circumstances that raise substantial doubt about the integrity of\\nthe rendering court with respect to the judgment” or, more importantly in this\\ncase, if “the specific proceeding in the foreign court leading to the judgment\\nwas not compatible with the requirements of due process of law.” 2005 Unif.\\nAct § 4(c)(7)–(8).\\n These substantive differences between the old and new law were not the\\nfocus of hearings on the bill. Instead, a change not found in the new Uniform\\nLaw nor in the versions of that law passed by other states drew the most\\nattention. The drafters had made the law retroactive to pending cases. The\\nonly pending case the legislators were told about was this one. Despite the\\nconcern of at least one legislator that the law was going to change the outcome\\nof this case midstream, the law was adopted with the retroactivity provision.\\n2017 Tex. Sess. Law Serv. Ch. 390 (S.B. 944) (Vernon’s), codified at TEX. CIV.\\nPRAC. & REM. CODE § 36A.001–11.\\n With his legislative victory in hand, DeJoria returned to the district\\ncourt to inform it of the change in Texas law. Although he argued that\\nnonrecognition was warranted on multiple grounds, the district court again\\nfocused on only one. Finding the new law did not run afoul of the Texas\\nConstitution’s prohibition of retroactive laws, this time the court granted\\nDeJoria’s motion for nonrecognition after determining that the specific\\nproceedings leading to the judgment against him were incompatible with the\\nrequirements of due process. 8 To reach that decision, the district court\\n\\n\\n 8 The court declined to reach DeJoria’s other arguments for nonrecognition: that 1) the\\nMoroccan judgment was rendered under circumstances that raise substantial doubt about\\nthe integrity of the rendering court, 2) the Moroccan judgment was repugnant to Texas public\\npolicy, and 3) recognition of the judgment would violate the Due Process Clause of the\\nFourteenth Amendment.\\n 6\\n\\f Case: 18-50348 Document: 00515079314 Page: 7 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nreadopted many of the case-specific findings underlying the order this court\\nhad reversed. But it also made new findings: that DeJoria was unable to\\nattend the Moroccan proceedings, that he was unable to obtain counsel to\\nrepresent him in those proceedings, and that, although the Moroccan court\\nrelied on an expert’s opinion to determine damages, that expert lacked\\nindependence. The court again dismissed the case. Maghreb again appealed.\\n II.\\n We have jurisdiction over this case owing to the diversity of the parties,\\nso we apply Texas substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78\\n(1938). In doing so, we are bound by the decisions of the Supreme Court of\\nTexas. Comm’r v. Bosch’s Estate, 387 U.S. 456, 465 (1967). But when no\\ndecision of that court directly addresses the case before us, we are forced to\\nmake an Erie guess, doing our best to write the opinion the Texas high court\\nwould if it had the chance. 9 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir.\\n2018).\\n We must make such a guess to determine which of the Uniform\\nRecognition Acts applies. The Texas Constitution provides that “[n]o bill of\\nattainder, ex post facto law, retroactive law, or any law impairing the\\nobligation of contracts, shall be made.” Tex. Const. art. I, § 16. Although\\n\\n\\n\\n 9 Although neither party asks us to certify this question to the state court, in an\\namicus brief the State of Texas suggests we should consider it, especially if we are inclined\\nto overturn the statute. We decline to do so because we do not think application of the\\nSupreme Court of Texas’s many retroactivity precedents to this statute leaves us with a close\\ncall. Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 549 (5th Cir. 1998) (noting that the\\n“closeness of the question” and “the existence of sufficient sources of state law” are the most\\nimportant factors in deciding to certify (quotation omitted)). Moreover, a case in which a\\nforeign corporation is attempting to argue that a state legislature has passed a law as a favor\\nto one of its wealthiest citizens seems like the quintessential case for the exercise of diversity\\njurisdiction. Cf. 13E Charles Alan Wright et. al, FED. PRAC. & PROC. § 3601 (3d ed. 2019)\\n(describing the most common justification for federal diversity jurisdiction as “the fear that\\nstate courts would be prejudiced against out-of-state litigants, particularly when opposed by\\nan in-stater”).\\n 7\\n\\f Case: 18-50348 Document: 00515079314 Page: 8 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nphrased as an absolute prohibition, “[m]ere retroactivity is not sufficient to\\ninvalidate a statute.” Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d\\n126, 139 (Tex. 2010) (quotation omitted). Texas courts have tailored the scope\\nof the prohibition to “protect[] settled expectations and prevent[] abuse of\\nlegislative power.” Id. Three factors determinine whether a law runs afoul of\\nthose objectives: “the nature and strength of the public interest served by the\\nstatute as evidenced by the Legislature’s factual findings; the nature of the\\nprior right impaired by the statute; and the extent of the impairment.” Id. at\\n145. The nature and extent of the interference with a party’s rights loom\\nparticularly large. For that reason, “changes in the law that merely affect\\nremedies or procedure, or that otherwise have little impact on prior rights, are\\nusually not unconstitutionally retroactive.” Id. at 146; see also Univ. of Tex.\\nSw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548 (Tex. 2010)\\n(“Statutes . . . that do not deprive the parties of a substantive right . . . may be\\napplied to cases pending at the time of enactment.”).\\n The new law’s limited interference with Maghreb’s legitimate rights\\nresolves the question before us. Unlike Robinson—the seminal Texas case on\\nretroactivity—this is not a case in which a law that allowed a party’s recovery\\nwas changed to “abrogate their claim.” Robinson, 335 S.W.3d at 148. It is not\\neven certain that the law as it stood before the adoption of the updated act\\nwould have led to recognition of the Moroccan judgment. As we mentioned,\\nthe district court agreed to allow DeJoria to press several arguments for\\nnonrecognition after this court returned the case to its hands. 10 Because the\\n\\n\\n\\n 10 In particular, prior to the update of the law, DeJoria retained the ability to argue\\nthat two additional nonrecognition factors applied: that the “cause of action on which the\\njudgment is based is repugnant to the public policy” of Texas and that Morocco was a\\n“seriously inconvenient forum.” TEX. CIV. PRAC. & REM. CODE §§ 36.005(b)(3) and (6)\\n(Vernon’s 2015). Beyond the Recognition Act’s domain, DeJoria was also raising a federal\\ndue process challenge to recognition of the Moroccan judgment.\\n 8\\n\\f Case: 18-50348 Document: 00515079314 Page: 9 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\npassage of the new act made it unnecessary to address those claims, we do not\\nknow how likely they were to succeed. Maghreb’s expectation that it would\\nprevail was, in other words, not yet settled. See Union Carbide Corp. v.\\nSynatzske, 438 S.W.3d 39, 58 (Tex. 2014) (upholding retroactive application of\\na law because the plaintiff’s “recovery was not yet predictable” at the time the\\nlaw went into effect).\\n The bigger point, though, is that the retroactive law does not abrogate\\nMaghreb’s claim. It does not strip Maghreb of the ability to seek recognition\\nof the Moroccan judgment. It just gives a district court the ability to deny\\nrecognition if it finds the judgment was obtained in proceedings that were\\nincompatible with the requirements of due process. So the only right that has\\nbeen impinged is the right to automatic recognition of a judgment obtained in\\nproceedings that denied the judgment debtor fundamental fairness. To state\\nthat “right” is to show why we cannot recognize it, let alone allow its protection\\nto sink a state statute. Robinson, 335 S.W.3d at 146 (“[C]ourts must be mindful\\nthat statutes are not to be set aside lightly.”). Indeed, the absurdity of lending\\na court’s power to the vindication of fundamentally unfair proceedings is why\\nthe 2005 Uniform Act recognizes an absence of due process as one of the rare\\nsituations when an American court may not recognize a foreign judgment. It\\nis also noteworthy that the Supreme Court of Texas has only upheld challenges\\nto the retroactive application of a law on four occasions, all of which dealt with\\nlaws that revived expired claims or fully extinguished vested rights. Tenet\\nHospitals Ltd. v. Rivera, 445 S.W.3d 698, 708 (Tex. 2014) (collecting cases).\\nThe updated recognition act does neither.\\n We are mindful that the whiff of home cooking also pervades the Texas\\nside of this case. There is a deep irony in allowing DeJoria to contend he was\\ndenied due process in Morocco when it was his lobbying efforts that changed\\nthe rules of the game midway through the proceedings in the United States.\\n 9\\n\\f Case: 18-50348 Document: 00515079314 Page: 10 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nIndeed, the Supreme Court of Texas has been suspicious of retroactive laws\\nthat inure to the benefit of only one company or individual. 11 Robinson, 335\\nS.W.3d at 149. But in the retroactivity context as in others, “unfair does not\\nalways equal unconstitutional.” Id. at 160 (Willett, J. concurring). And it\\ncannot be said that a state’s desire to provide immediate protection to the due\\nprocess rights of its citizens is not compelling. When balanced against the\\nslight imposition on a right of dubious provenance, retroactive application of\\nthe updated Recognition Act does not violate the Texas Constitution.\\n III.\\n A.\\n Having decided that Texas’s choice to apply its new Recognition Act to\\npending cases was proper, we now must review the district court’s application\\nof that law. And to do that we must determine how closely we should scrutinize\\nthat court’s work.\\n Reciting the standard of review in an appellate opinion is often a rote\\nexercise. Not here. Recognizing that the appeal’s outcome largely turns on\\nthis question, the parties have spent considerable energy contesting whether\\nwe owe deference to certain district court rulings. Maghreb insists that we\\nshould review all aspects of the district court’s denial of recognition de novo,\\nlikening the inquiry to a review for legal sufficiency. DeJoria counters that we\\nshould review the court’s factual findings only for clear error.\\n Much of the confusion surrounding the standard of review arises from\\nthis case’s odd posture. The district court did not rule on a motion for summary\\njudgment or conduct a bench trial, but instead resolved a “motion for\\n\\n\\n 11 DeJoria points to one other recognition case that was pending at the time the law\\nwas passed, In re Carmona, 580 B.R. 690 (Bankr. S.D. Tex. 2018). But the Texas legislature\\nwas only made aware of one case that would be affected by the retroactivity provision—this\\none.\\n\\n 10\\n\\f Case: 18-50348 Document: 00515079314 Page: 11 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nnonrecognition.” That motion is a creature of state law. 12 Regardless of the\\nstyling of the motion on which the district court ruled, however, our appellate\\nstandard of review is governed by federal law, even in this diversity case. See\\nGoodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1040 (5th Cir. 2011); Tax\\nTrack Sys. Corp. v. New Investor World, Inc., 478 F.3d 783, 789 (7th Cir. 2007);\\nHershon v. Gibraltar Bldg. & Loan Ass’n, Inc., 864 F.2d 848, 852 (D.C. Cir.\\n1989). 13\\n The prior panel explained that “[w]hether the judgment debtor\\nestablished that [a] non-recognition provision[] applies is a question of law\\nreviewed de novo.” DeJoria, 804 F.3d at 379. We agree. But the panel had no\\ncause to determine the proper standard of review for the factual findings that\\nunderpin the district court’s legal decision. After all, the issues in that\\nappeal—whether the Moroccan system provides procedures compatible with\\ndue process, whether Moroccan law provides a mechanism to reciprocate\\nrecognition of Texas judgments, and whether the Moroccan court had personal\\njurisdiction over DeJoria—were all legal determinations. See FED. R. CIV. P.\\n44.1 (“The court’s determination [of foreign law] must be treated as a ruling on\\na question of law.”); In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant\\nProduct Liability Litig., 888 F.3d 753, 778 (5th Cir. 2018) (“This court reviews\\n[the] district court’s exercise of personal jurisdiction de novo.” (quotation\\nomitted)).\\n\\n\\n 12 It is not clear, then, how this type of motion found its way to federal court. In federal\\ncourt, the Federal Rules of Civil Procedure should govern how the parties seek and resist\\nrecognition of the judgment. See, e.g., Sw. Livestock and Trucking Co., Inc. v. Ramon, 169\\nF.3d 317, 321 & n.3 (5th Cir. 1999) (disposing of the recognition issue on a federal motion for\\nsummary judgment). Neither party, however, has objected to the use of state procedure in\\nthis federal action, leaving this panel in somewhat uncharted territory.\\n 13 If the Recognition Act demanded a particular standard of review for “manifestly\\n\\nsubstantive” ends, that might be a different story. See Gasperini v. Ctr. for Humanities, Inc.,\\n518 U.S. 415, 429 (1996) (holding that state law governs the trial court standard for\\ndetermining whether a verdict is excessive). It does not.\\n 11\\n\\f Case: 18-50348 Document: 00515079314 Page: 12 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\n But it is a venerable principle that a district court’s factual findings are\\nreversed only if clearly erroneous. FED. R. CIV. P. 52(a)(6) (standard for bench\\ntrials); see also Steven Alan Childress & Martha S. Davis, 1 FEDERAL\\nSTANDARDS OF REVIEW § 2.03[8] 2-32–33 (4th ed. 2010) (explaining that\\n“[m]any courts . . . have assumed that [the] clearly erroneous rule applies to\\nfindings made on motions in addition to trial findings”). Even when an\\nappellate court considers a legal question de novo, that plenary power of review\\ndoes not extend to subsidiary factual findings. See Allstate Ins. Co. v. Abbott,\\n495 F.3d 151, 160 (5th Cir. 2007) (“[S]ubsidiary facts are reviewed for clear\\nerror.”) (citing Maine v. Taylor, 477 U.S. 131, 144–45 (1986)). To take just one\\nexample, jurisdiction is a legal question. But the facts that underlie a\\njurisdictional determination are still reviewed only for clear error. See, e.g.,\\nid.; DePuy Orthopaedics, 888 F.3d at 778 (applying clear error review to\\n“underlying jurisdictional findings of fact” and de novo review to ultimate\\npersonal jurisdiction holding (quotation omitted)); Pederson v. La. State Univ.,\\n213 F.3d 858, 869 (5th Cir. 2000) (“If the district court resolves any factual\\ndisputes in making its jurisdictional findings,” those resolutions are\\noverturned only if “clearly erroneous.” (quotation omitted)). The same must be\\ntrue for factfinding that underpins the legal conclusion of nonrecognition.\\n Appellate court deference to district court factfinding is grounded in\\nconcerns of both expertise and efficiency. Maghreb points out that one of the\\nstrongest justifications for deference—the trial court’s ability to assess the\\ncredibility of live testimony, Anderson v. City of Bessemer City, 470 U.S. 564,\\n575 (1985)—is not present because the testimony of the foreign witnesses was\\npresented on paper. But we defer even when the trial court’s findings are\\n“based . . . on physical or documentary evidence or inferences from other facts.”\\nId. at 574. That is because “[t]he trial judge’s major role is the determination\\nof fact, and with experience in fulfilling that role comes expertise.” Id. Clear\\n 12\\n\\f Case: 18-50348 Document: 00515079314 Page: 13 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nerror review also promotes judicial efficiency. Id. at 574–75 (“Duplication of\\nthe trial judge’s efforts in the court of appeals would very likely contribute only\\nnegligibly to the accuracy of fact determination at a huge cost in diversion of\\njudicial resources.”). District court judges, who do the lion’s share of the work\\nin our federal system, do not dig through voluminous records only to have\\ncourts like this one restart the factfinding from scratch. Instead of redoing\\ntheir work, we defer to their findings so long as they take a permissible view\\nof the evidence. Id. at 574.\\n Although the standard of review is a federal issue, like the prior panel\\nwe “look to Texas law” governing recognition to see if anything counsels in a\\ndifferent direction. 14 DeJoria, 804 F.3d at 379. Nothing does. We see no Texas\\nrecognition case that conflicts with the principles of federal appellate review\\noutlined above. When a trial court is presented with conflicting evidence in\\nrecognition proceedings, Texas courts “defer to the trial court’s . . . resolution\\nof those conflicts.” Mariles v. Hector, No. 05-16-00814-CV, 2018 WL 3723104\\n*6 (Tex. App.—Dallas Aug. 6, 2018, pet. denied). Maghreb cites some Texas\\ncases that explain what we have acknowledged: that review of the district\\ncourt’s ultimate determination of the application of a nonrecognition factor\\n\\n\\n 14 As we have explained, the proper standard of appellate review is a question of\\nfederal law. We do not read this court’s 2015 opinion as out of step with that conclusion. It\\nmay be that the prior panel looked to Texas law only to ascertain whether recognition was a\\nlegal or factual question. See Childress & Davis, supra § 2.03[7] 2-32 n.158 (noting that,\\ndespite application of federal standards of review in diversity cases, “[u]se of state law-fact\\ncharacterization may be more defensible” as that question borders on the substantive). But\\nto the extent the prior panel’s opinion could be read to suggest that state law controls the\\napplicable standard of review in federal court, it announced principles with respect to “the\\ndistrict court’s recognition decision.” DeJoria, 804 F.3d at 379. Again, we answer a different\\nquestion—what level of scrutiny should we apply to the findings of fact subsidiary to that\\nultimate legal conclusion? That question, at least, is controlled by federal law.\\n In any event, we have perused Texas caselaw only out of an abundance of caution. It\\nis less useful this time around—no Texas case has yet analyzed the new factbound\\nnonrecognition factors added by the updated act.\\n\\n 13\\n\\f Case: 18-50348 Document: 00515079314 Page: 14 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nshould be de novo. See, e.g., Sanchez v. Palau, 317 S.W.3d 780, 785 (Tex.\\nApp.—Houston [1st Dist.] 2010, pet. denied) (“[W]e review de novo a trial\\ncourt’s ruling on recognition of a foreign country judgment.”); The Courage Co.,\\nL.L.C. v. The Chemshare Corp., 93 S.W.3d 323, 331 (Tex. App.—Houston [14th\\nDist.] 2002, no pet.) (same). 15 But they have pointed to no case that instructs\\na court of appeals to start on a blank slate in determining the facts. That is\\nnot surprising. Consistent with the standard practice, Texas courts also\\ngenerally defer to trial court factfinding. In re I.I.G.T., 412 S.W.3d 803, 806\\n(Tex. App.—Dallas 2013, no pet.) (explaining that an appellate court should\\nnot normally “disturb the [trial] court’s resolution of evidentiary conflicts that\\nturn on . . . the weight of the evidence”). We thus can disturb the district\\ncourt’s findings only if they are not “plausible in light of the record viewed in\\nits entirety.” Anderson, 470 U.S. at 574.\\n B.\\n Maghreb’s primary argument on appeal—that DeJoria lost his\\nopportunity to complain about the Moroccan proceedings because he failed to\\nparticipate in them—must overcome this deference to the district court’s\\nfactfinding. Maghreb notes that we have “flatly reject[ed]” the due process\\nobjections of judgment debtors who were “given, and waived, the opportunity\\nof making [an] adequate presentation” in the foreign tribunal. Society of\\nLloyd’s v. Turner, 303 F.3d 325, 331 n.20 (5th Cir. 2002) (quotation omitted);\\n\\n\\n 15 Varying procedural postures and a lack of clarity with respect to whether the\\nstandard of review depends on the nonrecognition factor at issue further frustrate the search\\nfor coherence on this question. See Ramon, 169 F.3d at 318 (analyzing recognition decision\\non summary judgment, which is always reviewed de novo); Banque Libanaise Pour Le\\nCommerce v. Khreich, 915 F.2d 1000, 1004 (5th Cir. 1990) (reviewing for abuse of discretion\\na trial court’s choice to apply a discretionary nonrecognition ground, like the ground at issue\\nin this case); Dart v. Balaam, 953 S.W.2d 478, 482–83 (Tex. App.—Fort Worth 1997, no pet.)\\n(reviewing for abuse of discretion the trial court’s determination whether Australia was an\\ninconvenient forum). The important point for this appeal is that we have seen no appellate\\ncourt in a recognition dispute engage in de novo factfinding.\\n 14\\n\\f Case: 18-50348 Document: 00515079314 Page: 15 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nsee also Dart, 953 S.W.2d at 480 (“Grounds for nonrecognition may be waived\\nif a party had the right to assert that ground as an objection or defense in the\\nforeign country but failed to do so.”).\\n But our limited authority when it comes to facts makes short work of\\nthat argument. The district court made three major findings to support\\nnonrecognition: 1) DeJoria’s fear for his safety should he return to Morocco to\\nlitigate was credible and arose directly from his involvement in the Moroccan\\nlawsuit, 2) because DeJoria’s position in the Moroccan lawsuit was directly\\nadverse to the interests of the royal family he was unable to retain a lawyer to\\nappear for him in the initial proceedings or to bring an appeal, and 3) although\\nthe determination of damages was based on expert opinion, the Moroccan court\\nmanipulated that process when it went through four experts before finding one\\nthat would deliver its preferred recommendation. Taken together, the first and\\nsecond findings mean that DeJoria was never “given . . . the opportunity of\\nmaking [an] adequate presentation” in Moroccan court and the third means\\nhis case did not otherwise receive fair treatment. Turner, 303 F.3d at 331 n.20.\\nSo unless those findings were clearly erroneous, Maghreb’s “waiver” argument\\nfails.\\n To be sure, Maghreb points to substantial evidence that could support\\ncontrary findings. Its problem is that there is evidence on both sides of these\\ndisputes. Even if Maghreb can convince us that its evidence is stronger, that\\nis not enough to establish that the district court’s crediting of DeJoria’s\\nevidence is implausible. Theriot v. Par. of Jefferson, 185 F.3d 477, 490 (5th\\nCir. 1999) (“Where the evidence can support findings either way, a choice by\\nthe trial judge between two permissible views of the weight of the evidence is\\nnot clearly erroneous.”)\\n Take for instance the finding that DeJoria credibly feared for his life and\\nso was unable to attend the Moroccan proceedings in person. Michael Gustin,\\n 15\\n\\f Case: 18-50348 Document: 00515079314 Page: 16 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nDeJoria’s business partner, described receiving a death threat and explained\\nthat it was directed at both him and DeJoria. DeJoria himself declared that\\nGustin communicated that threat to him and that he believed it was credible.\\nAnd the record contains evidence that their unsuccessful attempts to obtain\\nrepresentation in Morocco may have only heightened their fear. A French\\nattorney with some Moroccan experience told them that it was not only unsafe\\nfor DeJoria and Gustin to return to Morocco, but it would be “unsafe and\\nunwise for any lawyer” or “any sane person,” for that matter, to participate in\\na case that so closely touched the royal family’s interests. Nearly a decade\\nlater, that attorney repeated his concerns. The general counsel for Skidmore,\\nDeJoria’s company that spearheaded the Moroccan project, also says he was\\ntold to stay out of the country by a Moroccan attorney who had been hired to\\nhandle various clerical tasks as the Moroccan lawsuit proceeded. She warned\\nthat “any appearance by Skidmore or any personal representative of Skidmore\\nin the Moroccan lawsuit would be dangerous.”\\n Of course, these assertions all come from individuals who may have an\\naxe to grind in this case. And we are not told much about the circumstances\\nor content of the death threat because Gustin maintains that he “cannot reveal\\n[the] details . . . without compromising the safety of innocent people still in\\nMorocco.” Bias and lack of detail are classic impeachment evidence. But\\nimpeachment usually goes to the weight of the evidence. Arguing about the\\nweight of the evidence is not the terrain an appellant wants to be on. See La\\nDay v. Catalyst Tech., Inc., 302 F.3d 474, 480 (5th Cir. 2002) (noting that it is\\nthe factfinder who “ultimately . . . decide[s] which side has the greater weight\\nof the evidence”).\\n Nor does Maghreb get over the clearly-erroneous hurdle because it\\npresented testimony that DeJoria could have appeared and obtained counsel\\nin the Moroccan litigation. Choosing between conflicting testimony is the\\n 16\\n\\f Case: 18-50348 Document: 00515079314 Page: 17 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nprovince of the factfinder. See Anderson, 470 U.S. at 575 (concluding it “can\\nvirtually never be clear error” when a trial court “credit[s] the testimony of one\\nof two or more witnesses, each of whom has told a coherent and facially\\nplausible story that is not contradicted by extrinsic evidence”). And while\\nMaghreb emphasizes the testimony of its expert on Moroccan law, expert\\ntestimony does not automatically trump lay testimony. Breland v. United\\nStates, 372 F.2d 629, 633 (5th Cir. 1967) (“[L]ay testimony can be sufficient to\\nsatisfy [a party’s] burden even though there is expert testimony to the\\ncontrary.”); see also FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS 3.5 (Civil)\\n(2014) (explaining that, for expert witness testimony, “[a]s with any other\\nwitness, it is up to [the factfinder] to decide whether to rely on it”).\\n To undo factual determinations on appeal, Maghreb must convince us\\nnot that it has the more compelling evidence, but that the other side’s\\ntestimony is not “plausible.” Anderson, 470 U.S. at 574. Maghreb’s expert\\nwitness, a Moroccan attorney, contends that DeJoria’s worries were “baseless\\nand reflect[] his poor understanding of Morocco.” And they also point to several\\ninstances in which Moroccan courts have ruled against royal interests. But\\nthat a trier of fact could plausibly infer that the death threat was fabricated\\ndoes not mean it is implausible to find that the threat was real. Id. at 574.\\n The same may be said for the other two key findings. For instance,\\nalthough DeJoria was able to retain Moroccan attorneys as experts in\\nproceedings stateside after the Moroccan trial court handed down its\\njudgment, there was evidence that two of his attempts to obtain representation\\nin the Moroccan proceedings were rebuffed. And though there was no smoking\\ngun, it was not clear error for the district court to conclude that the Moroccan\\ncourt went fishing for an expert who would determine DeJoria and his partner\\nhad caused Maghreb substantial damages. After all, the expert who found\\nthose damages was the fifth appointed by the Moroccan court—the first three\\n 17\\n\\f Case: 18-50348 Document: 00515079314 Page: 18 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\n“concluded that they could not provide any firm opinion on the matter” and the\\nfourth was replaced for reasons that remain unclear.\\n Although the district court’s assessment of the evidence may be subject\\nto vigorous debate, it is the district court’s job to resolve evidentiary disputes,\\nnot ours. Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d\\n1031, 1036 (5th Cir. 2015) (explaining that, even when “there are two\\npermissible views of the evidence,” the trial court’s choice between them is\\ntypically owed “great deference”). Maghreb has not shown clear error. 16\\n C.\\n Perhaps realizing that its argument founders on the district court’s\\ndifficult-to-undo findings, Maghreb’s primary challenge to those findings is\\nthat they should not have been made in the first place. Each of the pertinent\\nfindings, it argues, was precluded by the prior panel’s opinion.\\n Under the law-of-the-case doctrine—and its corollary, the mandate\\nrule—when a district court receives a case on remand, it may not reexamine\\nthe legal or factual determinations of this court or otherwise disobey our\\nmandate. See Tollett v. City of Kemah, 285 F.3d 357, 363–64 (5th Cir. 2002).\\nThe reach of those related doctrines extends only to matters decided expressly\\nor by necessary implication. In re Felt, 255 F.3d 220, 225 (5th Cir. 2001). And\\nan issue is tacitly decided only when its disposition is a “necessary predicate[]\\nto the ability to address the issue or issues specifically discussed” in the\\nappellate court’s opinion. Id.\\n\\n\\n\\n\\n 16It is worth noting that the three trial judges who handled aspects of this case all\\ngenerally found DeJoria’s evidence about what happened in Morocco more persuasive than\\nMaghreb’s. Three trial judges have reviewed the case because this appeal comes from\\nfindings of a magistrate judge, adopted by the district judge, and the earlier appeal came\\nfrom findings of a different district judge. Although some of the findings in this phase of the\\ncase are new, they rely on much of the same testimony the district court relied on the first\\ntime around.\\n 18\\n\\f Case: 18-50348 Document: 00515079314 Page: 19 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\n The prior panel’s opinion did not preclude the findings the district court\\nmade on remand. First and foremost, the prior appeal was decided under a\\ndifferent law. United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)\\n(describing an exception to the law-of-the-case doctrine when “there has been\\nan intervening change of law by a controlling authority”). That law did not\\nrequire the prior panel to determine whether DeJoria’s “specific proceeding[s]”\\nwere “compatible with the requirements of due process of law.” TEX. CIV. PRAC.\\n& REM. CODE § 36A.004(c)(8). So that panel had no cause to determine\\nwhether DeJoria could in fact safely return to Morocco or whether DeJoria\\ncould in fact retain representation. In determining whether the Moroccan legal\\nsystem made fair proceedings impossible, whether Moroccan courts would\\nreciprocate recognition, and whether the Moroccan commercial court had\\npersonal jurisdiction over DeJoria, the prior panel’s analysis was focused on\\nlegal questions. The fact-intensive inquiry demanded by Texas’s updated\\nRecognition Act put the case on a new playing field.\\n But even if the district court were operating in the same legal landscape,\\nnothing in the prior panel’s opinion forecloses the district court’s findings. The\\npanel held that the Moroccan court’s exercise of jurisdiction over DeJoria did\\nnot violate traditional notions of “fair play and substantial justice” because,\\ndespite any burden litigating in Morocco might place on DeJoria, “Moroccan\\ncourts do not require that the defendant appear personally, and DeJoria could\\nhave litigated entirely through counsel without returning to Morocco.”\\nDeJoria, 804 F.3d at 389. And, relying on testimony from a Moroccan attorney\\nacting as Maghreb’s expert, the court pointed out that “it is ‘not at all\\nuncommon’ for Moroccan attorneys to represent unpopular figures in Moroccan\\ncourts.” Id. at 383. But these general statements about usual Moroccan\\npractices did not address whether DeJoria could have found a willing attorney\\n\\n\\n 19\\n\\f Case: 18-50348 Document: 00515079314 Page: 20 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nin Morocco in his high-profile case. 17 Nor does it avail Maghreb to draw our\\nattention to the previous panel’s aside that, “[a]lthough our inquiry focuses on\\nMorocco’s judicial system, we also observe that the record does not establish\\nthat the King actually exerted any improper influence on the Moroccan court\\nin this case.” Id. at 382 n.9 (emphasis in original). For one, the comment is\\nadmittedly dicta—the footnote could have been erased from the opinion\\nwithout disrupting its systemwide holding in the slightest. Pegues v.\\nMorehouse Parish Sch. Bd., 706 F.2d 735, 738 (5th Cir. 1983) (explaining that\\nlaw of the case does not apply to dicta). And in any case, the question under\\nthe Texas statute is not whether the King actively undermined the\\nproceedings, but whether DeJoria was afforded a fundamentally fair hearing.\\nThe prior panel’s general observations did not foreclose the more searching\\nfactual inquiry now required under Texas law. 18\\n D.\\n Our holding that the district court did not clearly err in its factfinding\\nnor adopt those findings in the face of a contrary mandate from this court\\nleaves us little left to do. Maghreb does not dispute the nonrecognition\\nconclusion if we uphold the findings that DeJoria could neither appear\\npersonally nor find a lawyer to appear for him. That is a sensible stance.\\n\\n\\n 17 And nothing in the prior panel’s opinion foreclosed the district court’s finding that\\nDeJoria could not safely return to Morocco. Indeed, the prior panel did not even mention the\\nalleged threat on DeJoria’s life, let alone determine its credibility.\\n 18 Maghreb also argues at some length about the propriety of a host of other findings\\n\\nthat the magistrate made by readopting the findings made before the first appeal. For\\nreasons similar to those discussed above, we doubt there is much to Maghreb’s argument that\\nthose readopted findings were barred by the law of the case. Nor do we believe its argument\\nthat this court’s 2015 reversal rendered those factual findings “null and void” holds much\\nwater. In many other contexts, a district court will readopt its findings without fanfare when\\nan appeals court returns the case after locating a legal error. See, e.g., Chemtech Royalty\\nAssocs., L.P. v. United States, 823 F.3d 282, 287–88 (5th Cir. 2016); United States v. Ellis,\\n201 F. App’x 170 (4th Cir. 2006) (per curiam). But because we believe the new findings made\\nby the district court are sufficient to justify its nonrecognition decision, we see no need to\\nexplore this issue further.\\n 20\\n\\f Case: 18-50348 Document: 00515079314 Page: 21 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nRecognition of a foreign-country judgment does not require the foreign court to\\n“comply with the traditional rigors of American due process.” Turner, 303 F.3d\\nat 330. But the opportunity to present one’s case is no minor twist or turn of\\nmodern due process jurisprudence: “The fundamental requirement of due\\nprocess is the opportunity to be heard at a meaningful time and in a\\nmeaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)\\n(quotation omitted). In light of the facts as found by the district court, it\\nproperly determined that DeJoria was denied due process in Morocco. The\\ndistrict court thus had and properly exercised discretion to deny recognition to\\nthe Moroccan judgment. 19\\n * * *\\n So despite the seeming complexity of this case—royal intrigue, a foreign\\nproceeding, almost a billion dirhams at stake—it ends up being resolved on one\\nof the most basic principles of appellate law: deference to the factfinder. The\\njudgment is AFFIRMED.\\n\\n\\n\\n\\n 19The parties also contest whether recognition should be denied because the Moroccan\\njudgment is repugnant to public policy or because failing to do so would violate the\\nFourteenth Amendment’s due process guarantee. Because we affirm the district court’s\\nnonrecognition decision on another ground, there is no need to discuss those disputes.\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426354/\", \"author_raw\": \"GREGG COSTA, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"COSTA"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JOLLY\": \", Circuit\", \"COSTA\": \", Circuit\", \"ENGELHARDT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4649101/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: John DeJoria v. Maghreb Petroleum Expl, S.A., et a\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50348 Document: 00515079314 Page: 1 Date Filed: 08/16/2019\n\n\n\n\n REVISED August 16, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n August 15, 2019\n No. 18-50348\n Lyle W. Cayce\n Clerk\nJOHN PAUL DEJORIA,\n\n Plaintiff - Appellee\n\nv.\n\nMAGHREB PETROLEUM EXPLORATION, S.A.; MIDEAST FUND FOR\nMOROCCO, LIMITED,\n\n Defendants - Appellants\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n In 1999, philanthropist, environmental activist, and haircare and liquor\ntycoon John Paul DeJoria was attempting to achieve yet another title: oil\nmagnate. It did not go well. What started as a project that promised to provide\nMorocco with decades of energy independence ended with a Moroccan court’s\nlevying a judgment north of $100 million against DeJoria and his business\npartner. Whether Texas should recognize that foreign judgment is now the\ncenterpiece of this decades-long dispute. In fact, proving that it is often harder\nto collect a judgment than win one, this is the second time the question of the\n\f Case: 18-50348 Document: 00515079314 Page: 2 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\njudgment’s validity has come before us. This time around we decide whether\nan interim change in the Texas recognition law violates the state’s\nconstitutional ban on retroactive laws. If not, we must determine whether the\ndistrict court properly followed this court’s 2015 mandate and whether it\nproperly applied the new law.\n I.\n The facts of this case are littered across the pages of the Federal\nReporter. See DeJoria v. Maghreb Petroleum Expl., S.A., 804 F.3d 373 (5th\nCir. 2015); Skidmore Energy, Inc. v. Maghreb Petroleum Expl., S.A., 337 F.\nApp’x 706 (9th Cir. 2009); Skidmore Energy, Inc. v. KPMG, 455 F.3d 564 (5th\nCir. 2006). Because this court has already described the background of this\ncorner of the dispute, we will do our best not to spill unnecessary ink. See\nDeJoria, 804 F.3d at 377–78. The winding path the case followed after our\ncourt’s 2015 remand will spill enough as it is. For now, suffice it to say that in\n1999 DeJoria and his business partners started Lone Star Energy Corporation\nin Morocco with the help of King Mohammed VI’s first cousin. The enterprise\nhoped to discover oil reserves in Northeastern Morocco. The prospects looked\ngood—so good that the King took to Moroccan airwaves to announce that the\ncountry would soon be in possession of “copious and high-quality” oil that\nwould allow Morocco to be self-sufficient for 30 years. The King’s\nannouncement made the Moroccan stock market jump more than five percent\nin anticipation of the expected riches.\n But when the promised reserves did not materialize, the project quickly\nsoured. DeJoria and his business partner were forced off Lone Star’s board,\nand, fearing for their lives because of an alleged death threat, fled Morocco,\nnever to return.\n Not long after their ouster, DeJoria and his associates were sued in\nMoroccan commercial court by Lone Star’s new management (now called\n 2\n\f Case: 18-50348 Document: 00515079314 Page: 3 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nMaghreb Petroleum Exploration, S.A.) and its major investor, Mideast Fund\nfor Morocco. Maghreb, the term we will use to collectively refer to those two\nentities, alleged that DeJoria and his partners mismanaged Lone Star and\nfraudulently induced investment in the doomed oil project. Seven years later,\nthe Moroccan court returned a large judgment for Maghreb. It dismissed\nclaims against five of the seven defendants, placing the blame—and the bill for\n969,832,062.22 Moroccan dirhams 1—squarely on DeJoria and his partner.\n Before going further, a little bit about the legal backdrop is helpful. In\norder to collect its winnings from DeJoria’s assets in the United States,\nMaghreb must convince an American court to recognize and enforce the\nMoroccan judgement. 2 Recognition of foreign-country judgments is a matter\nof state law and was once mostly governed by principles of comity. See Hilton\nv. Guyot, 159 U.S. 113, 163–64, 180–81 (1895). In some jurisdictions, comity\nis still the rule. See, e.g., Kwongyuen Hangkee Co., Ltd. v. Starr Fireworks,\nInc., 634 N.W.2d 95, 96 (S.D. 2001). But most states have codified their\nrecognition standards and procedures by enacting the 1962 Uniform Foreign\nMoney Judgments Recognition Act 3 or its 2005 successor, the Uniform Foreign-\nCountry Money Judgments Recognition Act. 4 Both acts make foreign\n\n\n 1 Because Maghreb has yet to secure recognition of its judgment, the district court has\nnot calculated how much it is worth in U.S. dollars. But the parties put the value at around\n$123 million.\n 2 Recognition is different from enforcement, but the former is necessary for the latter.\n\nSee Yuliya Zeynalova, The Law on Recognition and Enforcement of Foreign Judgments: Is It\nBroken and How Do We Fix It?, 31 BERKELEY J. INT’L L. 150, 155 (2013) (describing\nrecognition as akin to domesticating the judgement and enforcement as enlisting the courts\nand law enforcement to aid in collection). Only recognition is at issue in this case.\n 3 For a list of the 34 jurisdictions that have enacted the 1962 version, see Foreign\n\nMoney Judgments Act, Uniform Law Commission, https://www.uniformlaws.org/\ncommittees/community-home?CommunityKey=9c11b007-83b2-4bf2-a08e-74f642c840bc (last\nvisited August 6, 2019).\n 4 For a list of the 25 jurisdictions that have enacted the 2005 version (for some,\n\nrepealing the 1962 version in the process), see Foreign-Country Money Judgments\n\n 3\n\f Case: 18-50348 Document: 00515079314 Page: 4 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\njudgments that are final and conclusive where rendered “enforceable” in the\nrelevant state court just like another state’s judgment would be. Unif. Foreign-\nCountry Money Judgments Recognition Act § 7(2), U.L.A. (2005) (West); Unif.\nForeign Money Judgment Act § 3, U.L.A. (1962) (West). Although these acts\npresumptively treat properly filed foreign judgments as enforceable,\nexceptional circumstances can rebut that presumption. Some of those\nexceptions are mandatory, others discretionary. If the rendering court did not\nhave personal jurisdiction over the judgment debtor, for instance, the state\ncourt (or federal court sitting in diversity) cannot recognize the foreign\njudgment. 2005 Unif. Act § 4(b)(2); 1962 Unif. Act § 4(a)(2). Other grounds for\nnonrecognition, like fraud in obtaining the judgment, instead give the\nAmerican court the option of not recognizing the foreign judgment. 2005 Unif.\nAct § 4(c)(2); 1962 Unif. Act § 4(b)(2).\n So, in 2013, Maghreb came to the United States seeking recognition of\nthe Moroccan judgment. 5 DeJoria resisted in several ways. At the time, Texas\nhad adopted (with slight modification) the 1962 Uniform Recognition Act. See\nTEX. CIV. PRAC. & REM. CODE § 36.001–08 (Vernon’s 2015). That law included\nten nonrecognition grounds. DeJoria pressed seven of them. The district court\nfocused on only one avenue to nonrecognition. It determined that the Moroccan\njudgment was “rendered under a system that does not provide impartial\ntribunals or procedures compatible with the requirements of due process of\n\n\n\n\nRecognition Act, Uniform Law Commission, https://www.uniformlaws.org/\ncommittees/community-home?CommunityKey=ae280c30-094a-4d8f-b722-8dcd614a8f3e\n(last visited August 6, 2019).\n 5 The procedural history is a bit more complicated. DeJoria, perhaps believing the\n\nbest defense is a good offense, went to Texas court first, seeking preemptive nonrecognition\nof the Moroccan judgment and an antisuit injunction. Maghreb removed to federal court and\ncounterclaimed for recognition. But DeJoria eventually dismissed his affirmative claims,\nconforming this action to the more typical posture—judgment creditor seeking recognition,\njudgment debtor resisting.\n 4\n\f Case: 18-50348 Document: 00515079314 Page: 5 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nlaw.” Id. § 36.005(a)(1). Because this was a mandatory nonrecognition ground,\nthe district court refused to recognize the Moroccan judgment and dismissed\nthe case.\n We reversed. DeJoria, 804 F.3d at 389. The panel held that, under\nTexas’s version of the 1962 Uniform Recognition Act, DeJoria could not obtain\nnonrecognition by showing he was denied due process or impartial tribunals in\nhis case, but instead had the much greater burden of showing that Morocco’s\nlegal “system as a whole” was so deficient that no Texas court should ever\nrecognize a Moroccan judgment. Id. at 381. 6 And although the prior panel’s\ninquiry focused on whether the Moroccan judicial system could provide\nAmericans fair proceedings, it remarked that “the record does not establish\nthat the King actually exerted any improper influence on the Moroccan court\nin this case.” Id. at 382 n.9. The case was remanded.\n Back before the district court, and in front of the magistrate judge to\nwhom the matter was referred, the parties immediately began to squabble over\nthe scope of that court’s power on remand. 7 DeJoria was adamant that he\nshould still be allowed to push for nonrecognition on grounds not addressed by\nthe Fifth Circuit. Maghreb disagreed and moved for entry of judgment. The\ndistrict court denied Maghreb’s motion, agreeing with DeJoria that he could\nstill attempt to establish other grounds for nonrecognition.\n While the sound and fury continued apace in the trial court, a second\nfront in this dispute opened, this time in the Texas legislature. With the\ntestimonial aid of one of DeJoria’s lawyers, the 2017 legislative session was\nconsidering updating the Recognition Act to the 2005 uniform act. Among\n\n\n 6 That panel also rejected another two of DeJoria’s arguments for nonrecognition—\nthat Morocco would not reciprocally recognize a Texas judgment and that the Moroccan court\ndid not have personal jurisdiction over DeJoria. DeJoria, 804 F.3d at 384–89.\n 7 Because the district court adopted the magistrate’s recommendations in all relevant\n\nrespects, we will describe the postremand rulings as district court rulings.\n 5\n\f Case: 18-50348 Document: 00515079314 Page: 6 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nother changes, the new law would add two discretionary grounds for\nnonrecognition: a court would be able to deny recognition if “the judgment was\nrendered in circumstances that raise substantial doubt about the integrity of\nthe rendering court with respect to the judgment” or, more importantly in this\ncase, if “the specific proceeding in the foreign court leading to the judgment\nwas not compatible with the requirements of due process of law.” 2005 Unif.\nAct § 4(c)(7)–(8).\n These substantive differences between the old and new law were not the\nfocus of hearings on the bill. Instead, a change not found in the new Uniform\nLaw nor in the versions of that law passed by other states drew the most\nattention. The drafters had made the law retroactive to pending cases. The\nonly pending case the legislators were told about was this one. Despite the\nconcern of at least one legislator that the law was going to change the outcome\nof this case midstream, the law was adopted with the retroactivity provision.\n2017 Tex. Sess. Law Serv. Ch. 390 (S.B. 944) (Vernon’s), codified at TEX. CIV.\nPRAC. & REM. CODE § 36A.001–11.\n With his legislative victory in hand, DeJoria returned to the district\ncourt to inform it of the change in Texas law. Although he argued that\nnonrecognition was warranted on multiple grounds, the district court again\nfocused on only one. Finding the new law did not run afoul of the Texas\nConstitution’s prohibition of retroactive laws, this time the court granted\nDeJoria’s motion for nonrecognition after determining that the specific\nproceedings leading to the judgment against him were incompatible with the\nrequirements of due process. 8 To reach that decision, the district court\n\n\n 8 The court declined to reach DeJoria’s other arguments for nonrecognition: that 1) the\nMoroccan judgment was rendered under circumstances that raise substantial doubt about\nthe integrity of the rendering court, 2) the Moroccan judgment was repugnant to Texas public\npolicy, and 3) recognition of the judgment would violate the Due Process Clause of the\nFourteenth Amendment.\n 6\n\f Case: 18-50348 Document: 00515079314 Page: 7 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nreadopted many of the case-specific findings underlying the order this court\nhad reversed. But it also made new findings: that DeJoria was unable to\nattend the Moroccan proceedings, that he was unable to obtain counsel to\nrepresent him in those proceedings, and that, although the Moroccan court\nrelied on an expert’s opinion to determine damages, that expert lacked\nindependence. The court again dismissed the case. Maghreb again appealed.\n II.\n We have jurisdiction over this case owing to the diversity of the parties,\nso we apply Texas substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78\n(1938). In doing so, we are bound by the decisions of the Supreme Court of\nTexas. Comm’r v. Bosch’s Estate, 387 U.S. 456, 465 (1967). But when no\ndecision of that court directly addresses the case before us, we are forced to\nmake an Erie guess, doing our best to write the opinion the Texas high court\nwould if it had the chance. 9 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir.\n2018).\n We must make such a guess to determine which of the Uniform\nRecognition Acts applies. The Texas Constitution provides that “[n]o bill of\nattainder, ex post facto law, retroactive law, or any law impairing the\nobligation of contracts, shall be made.” Tex. Const. art. I, § 16. Although\n\n\n\n 9 Although neither party asks us to certify this question to the state court, in an\namicus brief the State of Texas suggests we should consider it, especially if we are inclined\nto overturn the statute. We decline to do so because we do not think application of the\nSupreme Court of Texas’s many retroactivity precedents to this statute leaves us with a close\ncall. Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 549 (5th Cir. 1998) (noting that the\n“closeness of the question” and “the existence of sufficient sources of state law” are the most\nimportant factors in deciding to certify (quotation omitted)). Moreover, a case in which a\nforeign corporation is attempting to argue that a state legislature has passed a law as a favor\nto one of its wealthiest citizens seems like the quintessential case for the exercise of diversity\njurisdiction. Cf. 13E Charles Alan Wright et. al, FED. PRAC. & PROC. § 3601 (3d ed. 2019)\n(describing the most common justification for federal diversity jurisdiction as “the fear that\nstate courts would be prejudiced against out-of-state litigants, particularly when opposed by\nan in-stater”).\n 7\n\f Case: 18-50348 Document: 00515079314 Page: 8 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nphrased as an absolute prohibition, “[m]ere retroactivity is not sufficient to\ninvalidate a statute.” Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d\n126, 139 (Tex. 2010) (quotation omitted). Texas courts have tailored the scope\nof the prohibition to “protect[] settled expectations and prevent[] abuse of\nlegislative power.” Id. Three factors determinine whether a law runs afoul of\nthose objectives: “the nature and strength of the public interest served by the\nstatute as evidenced by the Legislature’s factual findings; the nature of the\nprior right impaired by the statute; and the extent of the impairment.” Id. at\n145. The nature and extent of the interference with a party’s rights loom\nparticularly large. For that reason, “changes in the law that merely affect\nremedies or procedure, or that otherwise have little impact on prior rights, are\nusually not unconstitutionally retroactive.” Id. at 146; see also Univ. of Tex.\nSw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548 (Tex. 2010)\n(“Statutes . . . that do not deprive the parties of a substantive right . . . may be\napplied to cases pending at the time of enactment.”).\n The new law’s limited interference with Maghreb’s legitimate rights\nresolves the question before us. Unlike Robinson—the seminal Texas case on\nretroactivity—this is not a case in which a law that allowed a party’s recovery\nwas changed to “abrogate their claim.” Robinson, 335 S.W.3d at 148. It is not\neven certain that the law as it stood before the adoption of the updated act\nwould have led to recognition of the Moroccan judgment. As we mentioned,\nthe district court agreed to allow DeJoria to press several arguments for\nnonrecognition after this court returned the case to its hands. 10 Because the\n\n\n\n 10 In particular, prior to the update of the law, DeJoria retained the ability to argue\nthat two additional nonrecognition factors applied: that the “cause of action on which the\njudgment is based is repugnant to the public policy” of Texas and that Morocco was a\n“seriously inconvenient forum.” TEX. CIV. PRAC. & REM. CODE §§ 36.005(b)(3) and (6)\n(Vernon’s 2015). Beyond the Recognition Act’s domain, DeJoria was also raising a federal\ndue process challenge to recognition of the Moroccan judgment.\n 8\n\f Case: 18-50348 Document: 00515079314 Page: 9 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\npassage of the new act made it unnecessary to address those claims, we do not\nknow how likely they were to succeed. Maghreb’s expectation that it would\nprevail was, in other words, not yet settled. See Union Carbide Corp. v.\nSynatzske, 438 S.W.3d 39, 58 (Tex. 2014) (upholding retroactive application of\na law because the plaintiff’s “recovery was not yet predictable” at the time the\nlaw went into effect).\n The bigger point, though, is that the retroactive law does not abrogate\nMaghreb’s claim. It does not strip Maghreb of the ability to seek recognition\nof the Moroccan judgment. It just gives a district court the ability to deny\nrecognition if it finds the judgment was obtained in proceedings that were\nincompatible with the requirements of due process. So the only right that has\nbeen impinged is the right to automatic recognition of a judgment obtained in\nproceedings that denied the judgment debtor fundamental fairness. To state\nthat “right” is to show why we cannot recognize it, let alone allow its protection\nto sink a state statute. Robinson, 335 S.W.3d at 146 (“[C]ourts must be mindful\nthat statutes are not to be set aside lightly.”). Indeed, the absurdity of lending\na court’s power to the vindication of fundamentally unfair proceedings is why\nthe 2005 Uniform Act recognizes an absence of due process as one of the rare\nsituations when an American court may not recognize a foreign judgment. It\nis also noteworthy that the Supreme Court of Texas has only upheld challenges\nto the retroactive application of a law on four occasions, all of which dealt with\nlaws that revived expired claims or fully extinguished vested rights. Tenet\nHospitals Ltd. v. Rivera, 445 S.W.3d 698, 708 (Tex. 2014) (collecting cases).\nThe updated recognition act does neither.\n We are mindful that the whiff of home cooking also pervades the Texas\nside of this case. There is a deep irony in allowing DeJoria to contend he was\ndenied due process in Morocco when it was his lobbying efforts that changed\nthe rules of the game midway through the proceedings in the United States.\n 9\n\f Case: 18-50348 Document: 00515079314 Page: 10 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nIndeed, the Supreme Court of Texas has been suspicious of retroactive laws\nthat inure to the benefit of only one company or individual. 11 Robinson, 335\nS.W.3d at 149. But in the retroactivity context as in others, “unfair does not\nalways equal unconstitutional.” Id. at 160 (Willett, J. concurring). And it\ncannot be said that a state’s desire to provide immediate protection to the due\nprocess rights of its citizens is not compelling. When balanced against the\nslight imposition on a right of dubious provenance, retroactive application of\nthe updated Recognition Act does not violate the Texas Constitution.\n III.\n A.\n Having decided that Texas’s choice to apply its new Recognition Act to\npending cases was proper, we now must review the district court’s application\nof that law. And to do that we must determine how closely we should scrutinize\nthat court’s work.\n Reciting the standard of review in an appellate opinion is often a rote\nexercise. Not here. Recognizing that the appeal’s outcome largely turns on\nthis question, the parties have spent considerable energy contesting whether\nwe owe deference to certain district court rulings. Maghreb insists that we\nshould review all aspects of the district court’s denial of recognition de novo,\nlikening the inquiry to a review for legal sufficiency. DeJoria counters that we\nshould review the court’s factual findings only for clear error.\n Much of the confusion surrounding the standard of review arises from\nthis case’s odd posture. The district court did not rule on a motion for summary\njudgment or conduct a bench trial, but instead resolved a “motion for\n\n\n 11 DeJoria points to one other recognition case that was pending at the time the law\nwas passed, In re Carmona, 580 B.R. 690 (Bankr. S.D. Tex. 2018). But the Texas legislature\nwas only made aware of one case that would be affected by the retroactivity provision—this\none.\n\n 10\n\f Case: 18-50348 Document: 00515079314 Page: 11 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nnonrecognition.” That motion is a creature of state law. 12 Regardless of the\nstyling of the motion on which the district court ruled, however, our appellate\nstandard of review is governed by federal law, even in this diversity case. See\nGoodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1040 (5th Cir. 2011); Tax\nTrack Sys. Corp. v. New Investor World, Inc., 478 F.3d 783, 789 (7th Cir. 2007);\nHershon v. Gibraltar Bldg. & Loan Ass’n, Inc., 864 F.2d 848, 852 (D.C. Cir.\n1989). 13\n The prior panel explained that “[w]hether the judgment debtor\nestablished that [a] non-recognition provision[] applies is a question of law\nreviewed de novo.” DeJoria, 804 F.3d at 379. We agree. But the panel had no\ncause to determine the proper standard of review for the factual findings that\nunderpin the district court’s legal decision. After all, the issues in that\nappeal—whether the Moroccan system provides procedures compatible with\ndue process, whether Moroccan law provides a mechanism to reciprocate\nrecognition of Texas judgments, and whether the Moroccan court had personal\njurisdiction over DeJoria—were all legal determinations. See FED. R. CIV. P.\n44.1 (“The court’s determination [of foreign law] must be treated as a ruling on\na question of law.”); In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant\nProduct Liability Litig., 888 F.3d 753, 778 (5th Cir. 2018) (“This court reviews\n[the] district court’s exercise of personal jurisdiction de novo.” (quotation\nomitted)).\n\n\n 12 It is not clear, then, how this type of motion found its way to federal court. In federal\ncourt, the Federal Rules of Civil Procedure should govern how the parties seek and resist\nrecognition of the judgment. See, e.g., Sw. Livestock and Trucking Co., Inc. v. Ramon, 169\nF.3d 317, 321 & n.3 (5th Cir. 1999) (disposing of the recognition issue on a federal motion for\nsummary judgment). Neither party, however, has objected to the use of state procedure in\nthis federal action, leaving this panel in somewhat uncharted territory.\n 13 If the Recognition Act demanded a particular standard of review for “manifestly\n\nsubstantive” ends, that might be a different story. See Gasperini v. Ctr. for Humanities, Inc.,\n518 U.S. 415, 429 (1996) (holding that state law governs the trial court standard for\ndetermining whether a verdict is excessive). It does not.\n 11\n\f Case: 18-50348 Document: 00515079314 Page: 12 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\n But it is a venerable principle that a district court’s factual findings are\nreversed only if clearly erroneous. FED. R. CIV. P. 52(a)(6) (standard for bench\ntrials); see also Steven Alan Childress & Martha S. Davis, 1 FEDERAL\nSTANDARDS OF REVIEW § 2.03[8] 2-32–33 (4th ed. 2010) (explaining that\n“[m]any courts . . . have assumed that [the] clearly erroneous rule applies to\nfindings made on motions in addition to trial findings”). Even when an\nappellate court considers a legal question de novo, that plenary power of review\ndoes not extend to subsidiary factual findings. See Allstate Ins. Co. v. Abbott,\n495 F.3d 151, 160 (5th Cir. 2007) (“[S]ubsidiary facts are reviewed for clear\nerror.”) (citing Maine v. Taylor, 477 U.S. 131, 144–45 (1986)). To take just one\nexample, jurisdiction is a legal question. But the facts that underlie a\njurisdictional determination are still reviewed only for clear error. See, e.g.,\nid.; DePuy Orthopaedics, 888 F.3d at 778 (applying clear error review to\n“underlying jurisdictional findings of fact” and de novo review to ultimate\npersonal jurisdiction holding (quotation omitted)); Pederson v. La. State Univ.,\n213 F.3d 858, 869 (5th Cir. 2000) (“If the district court resolves any factual\ndisputes in making its jurisdictional findings,” those resolutions are\noverturned only if “clearly erroneous.” (quotation omitted)). The same must be\ntrue for factfinding that underpins the legal conclusion of nonrecognition.\n Appellate court deference to district court factfinding is grounded in\nconcerns of both expertise and efficiency. Maghreb points out that one of the\nstrongest justifications for deference—the trial court’s ability to assess the\ncredibility of live testimony, Anderson v. City of Bessemer City, 470 U.S. 564,\n575 (1985)—is not present because the testimony of the foreign witnesses was\npresented on paper. But we defer even when the trial court’s findings are\n“based . . . on physical or documentary evidence or inferences from other facts.”\nId. at 574. That is because “[t]he trial judge’s major role is the determination\nof fact, and with experience in fulfilling that role comes expertise.” Id. Clear\n 12\n\f Case: 18-50348 Document: 00515079314 Page: 13 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nerror review also promotes judicial efficiency. Id. at 574–75 (“Duplication of\nthe trial judge’s efforts in the court of appeals would very likely contribute only\nnegligibly to the accuracy of fact determination at a huge cost in diversion of\njudicial resources.”). District court judges, who do the lion’s share of the work\nin our federal system, do not dig through voluminous records only to have\ncourts like this one restart the factfinding from scratch. Instead of redoing\ntheir work, we defer to their findings so long as they take a permissible view\nof the evidence. Id. at 574.\n Although the standard of review is a federal issue, like the prior panel\nwe “look to Texas law” governing recognition to see if anything counsels in a\ndifferent direction. 14 DeJoria, 804 F.3d at 379. Nothing does. We see no Texas\nrecognition case that conflicts with the principles of federal appellate review\noutlined above. When a trial court is presented with conflicting evidence in\nrecognition proceedings, Texas courts “defer to the trial court’s . . . resolution\nof those conflicts.” Mariles v. Hector, No. 05-16-00814-CV, 2018 WL 3723104\n*6 (Tex. App.—Dallas Aug. 6, 2018, pet. denied). Maghreb cites some Texas\ncases that explain what we have acknowledged: that review of the district\ncourt’s ultimate determination of the application of a nonrecognition factor\n\n\n 14 As we have explained, the proper standard of appellate review is a question of\nfederal law. We do not read this court’s 2015 opinion as out of step with that conclusion. It\nmay be that the prior panel looked to Texas law only to ascertain whether recognition was a\nlegal or factual question. See Childress & Davis, supra § 2.03[7] 2-32 n.158 (noting that,\ndespite application of federal standards of review in diversity cases, “[u]se of state law-fact\ncharacterization may be more defensible” as that question borders on the substantive). But\nto the extent the prior panel’s opinion could be read to suggest that state law controls the\napplicable standard of review in federal court, it announced principles with respect to “the\ndistrict court’s recognition decision.” DeJoria, 804 F.3d at 379. Again, we answer a different\nquestion—what level of scrutiny should we apply to the findings of fact subsidiary to that\nultimate legal conclusion? That question, at least, is controlled by federal law.\n In any event, we have perused Texas caselaw only out of an abundance of caution. It\nis less useful this time around—no Texas case has yet analyzed the new factbound\nnonrecognition factors added by the updated act.\n\n 13\n\f Case: 18-50348 Document: 00515079314 Page: 14 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nshould be de novo. See, e.g., Sanchez v. Palau, 317 S.W.3d 780, 785 (Tex.\nApp.—Houston [1st Dist.] 2010, pet. denied) (“[W]e review de novo a trial\ncourt’s ruling on recognition of a foreign country judgment.”); The Courage Co.,\nL.L.C. v. The Chemshare Corp., 93 S.W.3d 323, 331 (Tex. App.—Houston [14th\nDist.] 2002, no pet.) (same). 15 But they have pointed to no case that instructs\na court of appeals to start on a blank slate in determining the facts. That is\nnot surprising. Consistent with the standard practice, Texas courts also\ngenerally defer to trial court factfinding. In re I.I.G.T., 412 S.W.3d 803, 806\n(Tex. App.—Dallas 2013, no pet.) (explaining that an appellate court should\nnot normally “disturb the [trial] court’s resolution of evidentiary conflicts that\nturn on . . . the weight of the evidence”). We thus can disturb the district\ncourt’s findings only if they are not “plausible in light of the record viewed in\nits entirety.” Anderson, 470 U.S. at 574.\n B.\n Maghreb’s primary argument on appeal—that DeJoria lost his\nopportunity to complain about the Moroccan proceedings because he failed to\nparticipate in them—must overcome this deference to the district court’s\nfactfinding. Maghreb notes that we have “flatly reject[ed]” the due process\nobjections of judgment debtors who were “given, and waived, the opportunity\nof making [an] adequate presentation” in the foreign tribunal. Society of\nLloyd’s v. Turner, 303 F.3d 325, 331 n.20 (5th Cir. 2002) (quotation omitted);\n\n\n 15 Varying procedural postures and a lack of clarity with respect to whether the\nstandard of review depends on the nonrecognition factor at issue further frustrate the search\nfor coherence on this question. See Ramon, 169 F.3d at 318 (analyzing recognition decision\non summary judgment, which is always reviewed de novo); Banque Libanaise Pour Le\nCommerce v. Khreich, 915 F.2d 1000, 1004 (5th Cir. 1990) (reviewing for abuse of discretion\na trial court’s choice to apply a discretionary nonrecognition ground, like the ground at issue\nin this case); Dart v. Balaam, 953 S.W.2d 478, 482–83 (Tex. App.—Fort Worth 1997, no pet.)\n(reviewing for abuse of discretion the trial court’s determination whether Australia was an\ninconvenient forum). The important point for this appeal is that we have seen no appellate\ncourt in a recognition dispute engage in de novo factfinding.\n 14\n\f Case: 18-50348 Document: 00515079314 Page: 15 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nsee also Dart, 953 S.W.2d at 480 (“Grounds for nonrecognition may be waived\nif a party had the right to assert that ground as an objection or defense in the\nforeign country but failed to do so.”).\n But our limited authority when it comes to facts makes short work of\nthat argument. The district court made three major findings to support\nnonrecognition: 1) DeJoria’s fear for his safety should he return to Morocco to\nlitigate was credible and arose directly from his involvement in the Moroccan\nlawsuit, 2) because DeJoria’s position in the Moroccan lawsuit was directly\nadverse to the interests of the royal family he was unable to retain a lawyer to\nappear for him in the initial proceedings or to bring an appeal, and 3) although\nthe determination of damages was based on expert opinion, the Moroccan court\nmanipulated that process when it went through four experts before finding one\nthat would deliver its preferred recommendation. Taken together, the first and\nsecond findings mean that DeJoria was never “given . . . the opportunity of\nmaking [an] adequate presentation” in Moroccan court and the third means\nhis case did not otherwise receive fair treatment. Turner, 303 F.3d at 331 n.20.\nSo unless those findings were clearly erroneous, Maghreb’s “waiver” argument\nfails.\n To be sure, Maghreb points to substantial evidence that could support\ncontrary findings. Its problem is that there is evidence on both sides of these\ndisputes. Even if Maghreb can convince us that its evidence is stronger, that\nis not enough to establish that the district court’s crediting of DeJoria’s\nevidence is implausible. Theriot v. Par. of Jefferson, 185 F.3d 477, 490 (5th\nCir. 1999) (“Where the evidence can support findings either way, a choice by\nthe trial judge between two permissible views of the weight of the evidence is\nnot clearly erroneous.”)\n Take for instance the finding that DeJoria credibly feared for his life and\nso was unable to attend the Moroccan proceedings in person. Michael Gustin,\n 15\n\f Case: 18-50348 Document: 00515079314 Page: 16 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nDeJoria’s business partner, described receiving a death threat and explained\nthat it was directed at both him and DeJoria. DeJoria himself declared that\nGustin communicated that threat to him and that he believed it was credible.\nAnd the record contains evidence that their unsuccessful attempts to obtain\nrepresentation in Morocco may have only heightened their fear. A French\nattorney with some Moroccan experience told them that it was not only unsafe\nfor DeJoria and Gustin to return to Morocco, but it would be “unsafe and\nunwise for any lawyer” or “any sane person,” for that matter, to participate in\na case that so closely touched the royal family’s interests. Nearly a decade\nlater, that attorney repeated his concerns. The general counsel for Skidmore,\nDeJoria’s company that spearheaded the Moroccan project, also says he was\ntold to stay out of the country by a Moroccan attorney who had been hired to\nhandle various clerical tasks as the Moroccan lawsuit proceeded. She warned\nthat “any appearance by Skidmore or any personal representative of Skidmore\nin the Moroccan lawsuit would be dangerous.”\n Of course, these assertions all come from individuals who may have an\naxe to grind in this case. And we are not told much about the circumstances\nor content of the death threat because Gustin maintains that he “cannot reveal\n[the] details . . . without compromising the safety of innocent people still in\nMorocco.” Bias and lack of detail are classic impeachment evidence. But\nimpeachment usually goes to the weight of the evidence. Arguing about the\nweight of the evidence is not the terrain an appellant wants to be on. See La\nDay v. Catalyst Tech., Inc., 302 F.3d 474, 480 (5th Cir. 2002) (noting that it is\nthe factfinder who “ultimately . . . decide[s] which side has the greater weight\nof the evidence”).\n Nor does Maghreb get over the clearly-erroneous hurdle because it\npresented testimony that DeJoria could have appeared and obtained counsel\nin the Moroccan litigation. Choosing between conflicting testimony is the\n 16\n\f Case: 18-50348 Document: 00515079314 Page: 17 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nprovince of the factfinder. See Anderson, 470 U.S. at 575 (concluding it “can\nvirtually never be clear error” when a trial court “credit[s] the testimony of one\nof two or more witnesses, each of whom has told a coherent and facially\nplausible story that is not contradicted by extrinsic evidence”). And while\nMaghreb emphasizes the testimony of its expert on Moroccan law, expert\ntestimony does not automatically trump lay testimony. Breland v. United\nStates, 372 F.2d 629, 633 (5th Cir. 1967) (“[L]ay testimony can be sufficient to\nsatisfy [a party’s] burden even though there is expert testimony to the\ncontrary.”); see also FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS 3.5 (Civil)\n(2014) (explaining that, for expert witness testimony, “[a]s with any other\nwitness, it is up to [the factfinder] to decide whether to rely on it”).\n To undo factual determinations on appeal, Maghreb must convince us\nnot that it has the more compelling evidence, but that the other side’s\ntestimony is not “plausible.” Anderson, 470 U.S. at 574. Maghreb’s expert\nwitness, a Moroccan attorney, contends that DeJoria’s worries were “baseless\nand reflect[] his poor understanding of Morocco.” And they also point to several\ninstances in which Moroccan courts have ruled against royal interests. But\nthat a trier of fact could plausibly infer that the death threat was fabricated\ndoes not mean it is implausible to find that the threat was real. Id. at 574.\n The same may be said for the other two key findings. For instance,\nalthough DeJoria was able to retain Moroccan attorneys as experts in\nproceedings stateside after the Moroccan trial court handed down its\njudgment, there was evidence that two of his attempts to obtain representation\nin the Moroccan proceedings were rebuffed. And though there was no smoking\ngun, it was not clear error for the district court to conclude that the Moroccan\ncourt went fishing for an expert who would determine DeJoria and his partner\nhad caused Maghreb substantial damages. After all, the expert who found\nthose damages was the fifth appointed by the Moroccan court—the first three\n 17\n\f Case: 18-50348 Document: 00515079314 Page: 18 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\n“concluded that they could not provide any firm opinion on the matter” and the\nfourth was replaced for reasons that remain unclear.\n Although the district court’s assessment of the evidence may be subject\nto vigorous debate, it is the district court’s job to resolve evidentiary disputes,\nnot ours. Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d\n1031, 1036 (5th Cir. 2015) (explaining that, even when “there are two\npermissible views of the evidence,” the trial court’s choice between them is\ntypically owed “great deference”). Maghreb has not shown clear error. 16\n C.\n Perhaps realizing that its argument founders on the district court’s\ndifficult-to-undo findings, Maghreb’s primary challenge to those findings is\nthat they should not have been made in the first place. Each of the pertinent\nfindings, it argues, was precluded by the prior panel’s opinion.\n Under the law-of-the-case doctrine—and its corollary, the mandate\nrule—when a district court receives a case on remand, it may not reexamine\nthe legal or factual determinations of this court or otherwise disobey our\nmandate. See Tollett v. City of Kemah, 285 F.3d 357, 363–64 (5th Cir. 2002).\nThe reach of those related doctrines extends only to matters decided expressly\nor by necessary implication. In re Felt, 255 F.3d 220, 225 (5th Cir. 2001). And\nan issue is tacitly decided only when its disposition is a “necessary predicate[]\nto the ability to address the issue or issues specifically discussed” in the\nappellate court’s opinion. Id.\n\n\n\n\n 16It is worth noting that the three trial judges who handled aspects of this case all\ngenerally found DeJoria’s evidence about what happened in Morocco more persuasive than\nMaghreb’s. Three trial judges have reviewed the case because this appeal comes from\nfindings of a magistrate judge, adopted by the district judge, and the earlier appeal came\nfrom findings of a different district judge. Although some of the findings in this phase of the\ncase are new, they rely on much of the same testimony the district court relied on the first\ntime around.\n 18\n\f Case: 18-50348 Document: 00515079314 Page: 19 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\n The prior panel’s opinion did not preclude the findings the district court\nmade on remand. First and foremost, the prior appeal was decided under a\ndifferent law. United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)\n(describing an exception to the law-of-the-case doctrine when “there has been\nan intervening change of law by a controlling authority”). That law did not\nrequire the prior panel to determine whether DeJoria’s “specific proceeding[s]”\nwere “compatible with the requirements of due process of law.” TEX. CIV. PRAC.\n& REM. CODE § 36A.004(c)(8). So that panel had no cause to determine\nwhether DeJoria could in fact safely return to Morocco or whether DeJoria\ncould in fact retain representation. In determining whether the Moroccan legal\nsystem made fair proceedings impossible, whether Moroccan courts would\nreciprocate recognition, and whether the Moroccan commercial court had\npersonal jurisdiction over DeJoria, the prior panel’s analysis was focused on\nlegal questions. The fact-intensive inquiry demanded by Texas’s updated\nRecognition Act put the case on a new playing field.\n But even if the district court were operating in the same legal landscape,\nnothing in the prior panel’s opinion forecloses the district court’s findings. The\npanel held that the Moroccan court’s exercise of jurisdiction over DeJoria did\nnot violate traditional notions of “fair play and substantial justice” because,\ndespite any burden litigating in Morocco might place on DeJoria, “Moroccan\ncourts do not require that the defendant appear personally, and DeJoria could\nhave litigated entirely through counsel without returning to Morocco.”\nDeJoria, 804 F.3d at 389. And, relying on testimony from a Moroccan attorney\nacting as Maghreb’s expert, the court pointed out that “it is ‘not at all\nuncommon’ for Moroccan attorneys to represent unpopular figures in Moroccan\ncourts.” Id. at 383. But these general statements about usual Moroccan\npractices did not address whether DeJoria could have found a willing attorney\n\n\n 19\n\f Case: 18-50348 Document: 00515079314 Page: 20 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nin Morocco in his high-profile case. 17 Nor does it avail Maghreb to draw our\nattention to the previous panel’s aside that, “[a]lthough our inquiry focuses on\nMorocco’s judicial system, we also observe that the record does not establish\nthat the King actually exerted any improper influence on the Moroccan court\nin this case.” Id. at 382 n.9 (emphasis in original). For one, the comment is\nadmittedly dicta—the footnote could have been erased from the opinion\nwithout disrupting its systemwide holding in the slightest. Pegues v.\nMorehouse Parish Sch. Bd., 706 F.2d 735, 738 (5th Cir. 1983) (explaining that\nlaw of the case does not apply to dicta). And in any case, the question under\nthe Texas statute is not whether the King actively undermined the\nproceedings, but whether DeJoria was afforded a fundamentally fair hearing.\nThe prior panel’s general observations did not foreclose the more searching\nfactual inquiry now required under Texas law. 18\n D.\n Our holding that the district court did not clearly err in its factfinding\nnor adopt those findings in the face of a contrary mandate from this court\nleaves us little left to do. Maghreb does not dispute the nonrecognition\nconclusion if we uphold the findings that DeJoria could neither appear\npersonally nor find a lawyer to appear for him. That is a sensible stance.\n\n\n 17 And nothing in the prior panel’s opinion foreclosed the district court’s finding that\nDeJoria could not safely return to Morocco. Indeed, the prior panel did not even mention the\nalleged threat on DeJoria’s life, let alone determine its credibility.\n 18 Maghreb also argues at some length about the propriety of a host of other findings\n\nthat the magistrate made by readopting the findings made before the first appeal. For\nreasons similar to those discussed above, we doubt there is much to Maghreb’s argument that\nthose readopted findings were barred by the law of the case. Nor do we believe its argument\nthat this court’s 2015 reversal rendered those factual findings “null and void” holds much\nwater. In many other contexts, a district court will readopt its findings without fanfare when\nan appeals court returns the case after locating a legal error. See, e.g., Chemtech Royalty\nAssocs., L.P. v. United States, 823 F.3d 282, 287–88 (5th Cir. 2016); United States v. Ellis,\n201 F. App’x 170 (4th Cir. 2006) (per curiam). But because we believe the new findings made\nby the district court are sufficient to justify its nonrecognition decision, we see no need to\nexplore this issue further.\n 20\n\f Case: 18-50348 Document: 00515079314 Page: 21 Date Filed: 08/16/2019\n\n\n\n No. 18-50348\nRecognition of a foreign-country judgment does not require the foreign court to\n“comply with the traditional rigors of American due process.” Turner, 303 F.3d\nat 330. But the opportunity to present one’s case is no minor twist or turn of\nmodern due process jurisprudence: “The fundamental requirement of due\nprocess is the opportunity to be heard at a meaningful time and in a\nmeaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)\n(quotation omitted). In light of the facts as found by the district court, it\nproperly determined that DeJoria was denied due process in Morocco. The\ndistrict court thus had and properly exercised discretion to deny recognition to\nthe Moroccan judgment. 19\n * * *\n So despite the seeming complexity of this case—royal intrigue, a foreign\nproceeding, almost a billion dirhams at stake—it ends up being resolved on one\nof the most basic principles of appellate law: deference to the factfinder. The\njudgment is AFFIRMED.\n\n\n\n\n 19The parties also contest whether recognition should be denied because the Moroccan\njudgment is repugnant to public policy or because failing to do so would violate the\nFourteenth Amendment’s due process guarantee. Because we affirm the district court’s\nnonrecognition decision on another ground, there is no need to discuss those disputes.\n 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: John DeJoria v. Maghreb Petroleum Expl, S.A., et a\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50348 Document: 00515079314 Page: 1 Date Filed: 08/16/2019\\n\\n\\n\\n\\n REVISED August 16, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 15, 2019\\n No. 18-50348\\n Lyle W. Cayce\\n Clerk\\nJOHN PAUL DEJORIA,\\n\\n Plaintiff - Appellee\\n\\nv.\\n\\nMAGHREB PETROLEUM EXPLORATION, S.A.; MIDEAST FUND FOR\\nMOROCCO, LIMITED,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n In 1999, philanthropist, environmental activist, and haircare and liquor\\ntycoon John Paul DeJoria was attempting to achieve yet another title: oil\\nmagnate. It did not go well. What started as a project that promised to provide\\nMorocco with decades of energy independence ended with a Moroccan court’s\\nlevying a judgment north of $100 million against DeJoria and his business\\npartner. Whether Texas should recognize that foreign judgment is now the\\ncenterpiece of this decades-long dispute. In fact, proving that it is often harder\\nto collect a judgment than win one, this is the second time the question of the\\n\\f Case: 18-50348 Document: 00515079314 Page: 2 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\njudgment’s validity has come before us. This time around we decide whether\\nan interim change in the Texas recognition law violates the state’s\\nconstitutional ban on retroactive laws. If not, we must determine whether the\\ndistrict court properly followed this court’s 2015 mandate and whether it\\nproperly applied the new law.\\n I.\\n The facts of this case are littered across the pages of the Federal\\nReporter. See DeJoria v. Maghreb Petroleum Expl., S.A., 804 F.3d 373 (5th\\nCir. 2015); Skidmore Energy, Inc. v. Maghreb Petroleum Expl., S.A., 337 F.\\nApp’x 706 (9th Cir. 2009); Skidmore Energy, Inc. v. KPMG, 455 F.3d 564 (5th\\nCir. 2006). Because this court has already described the background of this\\ncorner of the dispute, we will do our best not to spill unnecessary ink. See\\nDeJoria, 804 F.3d at 377–78. The winding path the case followed after our\\ncourt’s 2015 remand will spill enough as it is. For now, suffice it to say that in\\n1999 DeJoria and his business partners started Lone Star Energy Corporation\\nin Morocco with the help of King Mohammed VI’s first cousin. The enterprise\\nhoped to discover oil reserves in Northeastern Morocco. The prospects looked\\ngood—so good that the King took to Moroccan airwaves to announce that the\\ncountry would soon be in possession of “copious and high-quality” oil that\\nwould allow Morocco to be self-sufficient for 30 years. The King’s\\nannouncement made the Moroccan stock market jump more than five percent\\nin anticipation of the expected riches.\\n But when the promised reserves did not materialize, the project quickly\\nsoured. DeJoria and his business partner were forced off Lone Star’s board,\\nand, fearing for their lives because of an alleged death threat, fled Morocco,\\nnever to return.\\n Not long after their ouster, DeJoria and his associates were sued in\\nMoroccan commercial court by Lone Star’s new management (now called\\n 2\\n\\f Case: 18-50348 Document: 00515079314 Page: 3 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nMaghreb Petroleum Exploration, S.A.) and its major investor, Mideast Fund\\nfor Morocco. Maghreb, the term we will use to collectively refer to those two\\nentities, alleged that DeJoria and his partners mismanaged Lone Star and\\nfraudulently induced investment in the doomed oil project. Seven years later,\\nthe Moroccan court returned a large judgment for Maghreb. It dismissed\\nclaims against five of the seven defendants, placing the blame—and the bill for\\n969,832,062.22 Moroccan dirhams 1—squarely on DeJoria and his partner.\\n Before going further, a little bit about the legal backdrop is helpful. In\\norder to collect its winnings from DeJoria’s assets in the United States,\\nMaghreb must convince an American court to recognize and enforce the\\nMoroccan judgement. 2 Recognition of foreign-country judgments is a matter\\nof state law and was once mostly governed by principles of comity. See Hilton\\nv. Guyot, 159 U.S. 113, 163–64, 180–81 (1895). In some jurisdictions, comity\\nis still the rule. See, e.g., Kwongyuen Hangkee Co., Ltd. v. Starr Fireworks,\\nInc., 634 N.W.2d 95, 96 (S.D. 2001). But most states have codified their\\nrecognition standards and procedures by enacting the 1962 Uniform Foreign\\nMoney Judgments Recognition Act 3 or its 2005 successor, the Uniform Foreign-\\nCountry Money Judgments Recognition Act. 4 Both acts make foreign\\n\\n\\n 1 Because Maghreb has yet to secure recognition of its judgment, the district court has\\nnot calculated how much it is worth in U.S. dollars. But the parties put the value at around\\n$123 million.\\n 2 Recognition is different from enforcement, but the former is necessary for the latter.\\n\\nSee Yuliya Zeynalova, The Law on Recognition and Enforcement of Foreign Judgments: Is It\\nBroken and How Do We Fix It?, 31 BERKELEY J. INT’L L. 150, 155 (2013) (describing\\nrecognition as akin to domesticating the judgement and enforcement as enlisting the courts\\nand law enforcement to aid in collection). Only recognition is at issue in this case.\\n 3 For a list of the 34 jurisdictions that have enacted the 1962 version, see Foreign\\n\\nMoney Judgments Act, Uniform Law Commission, https://www.uniformlaws.org/\\ncommittees/community-home?CommunityKey=9c11b007-83b2-4bf2-a08e-74f642c840bc (last\\nvisited August 6, 2019).\\n 4 For a list of the 25 jurisdictions that have enacted the 2005 version (for some,\\n\\nrepealing the 1962 version in the process), see Foreign-Country Money Judgments\\n\\n 3\\n\\f Case: 18-50348 Document: 00515079314 Page: 4 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\njudgments that are final and conclusive where rendered “enforceable” in the\\nrelevant state court just like another state’s judgment would be. Unif. Foreign-\\nCountry Money Judgments Recognition Act § 7(2), U.L.A. (2005) (West); Unif.\\nForeign Money Judgment Act § 3, U.L.A. (1962) (West). Although these acts\\npresumptively treat properly filed foreign judgments as enforceable,\\nexceptional circumstances can rebut that presumption. Some of those\\nexceptions are mandatory, others discretionary. If the rendering court did not\\nhave personal jurisdiction over the judgment debtor, for instance, the state\\ncourt (or federal court sitting in diversity) cannot recognize the foreign\\njudgment. 2005 Unif. Act § 4(b)(2); 1962 Unif. Act § 4(a)(2). Other grounds for\\nnonrecognition, like fraud in obtaining the judgment, instead give the\\nAmerican court the option of not recognizing the foreign judgment. 2005 Unif.\\nAct § 4(c)(2); 1962 Unif. Act § 4(b)(2).\\n So, in 2013, Maghreb came to the United States seeking recognition of\\nthe Moroccan judgment. 5 DeJoria resisted in several ways. At the time, Texas\\nhad adopted (with slight modification) the 1962 Uniform Recognition Act. See\\nTEX. CIV. PRAC. & REM. CODE § 36.001–08 (Vernon’s 2015). That law included\\nten nonrecognition grounds. DeJoria pressed seven of them. The district court\\nfocused on only one avenue to nonrecognition. It determined that the Moroccan\\njudgment was “rendered under a system that does not provide impartial\\ntribunals or procedures compatible with the requirements of due process of\\n\\n\\n\\n\\nRecognition Act, Uniform Law Commission, https://www.uniformlaws.org/\\ncommittees/community-home?CommunityKey=ae280c30-094a-4d8f-b722-8dcd614a8f3e\\n(last visited August 6, 2019).\\n 5 The procedural history is a bit more complicated. DeJoria, perhaps believing the\\n\\nbest defense is a good offense, went to Texas court first, seeking preemptive nonrecognition\\nof the Moroccan judgment and an antisuit injunction. Maghreb removed to federal court and\\ncounterclaimed for recognition. But DeJoria eventually dismissed his affirmative claims,\\nconforming this action to the more typical posture—judgment creditor seeking recognition,\\njudgment debtor resisting.\\n 4\\n\\f Case: 18-50348 Document: 00515079314 Page: 5 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nlaw.” Id. § 36.005(a)(1). Because this was a mandatory nonrecognition ground,\\nthe district court refused to recognize the Moroccan judgment and dismissed\\nthe case.\\n We reversed. DeJoria, 804 F.3d at 389. The panel held that, under\\nTexas’s version of the 1962 Uniform Recognition Act, DeJoria could not obtain\\nnonrecognition by showing he was denied due process or impartial tribunals in\\nhis case, but instead had the much greater burden of showing that Morocco’s\\nlegal “system as a whole” was so deficient that no Texas court should ever\\nrecognize a Moroccan judgment. Id. at 381. 6 And although the prior panel’s\\ninquiry focused on whether the Moroccan judicial system could provide\\nAmericans fair proceedings, it remarked that “the record does not establish\\nthat the King actually exerted any improper influence on the Moroccan court\\nin this case.” Id. at 382 n.9. The case was remanded.\\n Back before the district court, and in front of the magistrate judge to\\nwhom the matter was referred, the parties immediately began to squabble over\\nthe scope of that court’s power on remand. 7 DeJoria was adamant that he\\nshould still be allowed to push for nonrecognition on grounds not addressed by\\nthe Fifth Circuit. Maghreb disagreed and moved for entry of judgment. The\\ndistrict court denied Maghreb’s motion, agreeing with DeJoria that he could\\nstill attempt to establish other grounds for nonrecognition.\\n While the sound and fury continued apace in the trial court, a second\\nfront in this dispute opened, this time in the Texas legislature. With the\\ntestimonial aid of one of DeJoria’s lawyers, the 2017 legislative session was\\nconsidering updating the Recognition Act to the 2005 uniform act. Among\\n\\n\\n 6 That panel also rejected another two of DeJoria’s arguments for nonrecognition—\\nthat Morocco would not reciprocally recognize a Texas judgment and that the Moroccan court\\ndid not have personal jurisdiction over DeJoria. DeJoria, 804 F.3d at 384–89.\\n 7 Because the district court adopted the magistrate’s recommendations in all relevant\\n\\nrespects, we will describe the postremand rulings as district court rulings.\\n 5\\n\\f Case: 18-50348 Document: 00515079314 Page: 6 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nother changes, the new law would add two discretionary grounds for\\nnonrecognition: a court would be able to deny recognition if “the judgment was\\nrendered in circumstances that raise substantial doubt about the integrity of\\nthe rendering court with respect to the judgment” or, more importantly in this\\ncase, if “the specific proceeding in the foreign court leading to the judgment\\nwas not compatible with the requirements of due process of law.” 2005 Unif.\\nAct § 4(c)(7)–(8).\\n These substantive differences between the old and new law were not the\\nfocus of hearings on the bill. Instead, a change not found in the new Uniform\\nLaw nor in the versions of that law passed by other states drew the most\\nattention. The drafters had made the law retroactive to pending cases. The\\nonly pending case the legislators were told about was this one. Despite the\\nconcern of at least one legislator that the law was going to change the outcome\\nof this case midstream, the law was adopted with the retroactivity provision.\\n2017 Tex. Sess. Law Serv. Ch. 390 (S.B. 944) (Vernon’s), codified at TEX. CIV.\\nPRAC. & REM. CODE § 36A.001–11.\\n With his legislative victory in hand, DeJoria returned to the district\\ncourt to inform it of the change in Texas law. Although he argued that\\nnonrecognition was warranted on multiple grounds, the district court again\\nfocused on only one. Finding the new law did not run afoul of the Texas\\nConstitution’s prohibition of retroactive laws, this time the court granted\\nDeJoria’s motion for nonrecognition after determining that the specific\\nproceedings leading to the judgment against him were incompatible with the\\nrequirements of due process. 8 To reach that decision, the district court\\n\\n\\n 8 The court declined to reach DeJoria’s other arguments for nonrecognition: that 1) the\\nMoroccan judgment was rendered under circumstances that raise substantial doubt about\\nthe integrity of the rendering court, 2) the Moroccan judgment was repugnant to Texas public\\npolicy, and 3) recognition of the judgment would violate the Due Process Clause of the\\nFourteenth Amendment.\\n 6\\n\\f Case: 18-50348 Document: 00515079314 Page: 7 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nreadopted many of the case-specific findings underlying the order this court\\nhad reversed. But it also made new findings: that DeJoria was unable to\\nattend the Moroccan proceedings, that he was unable to obtain counsel to\\nrepresent him in those proceedings, and that, although the Moroccan court\\nrelied on an expert’s opinion to determine damages, that expert lacked\\nindependence. The court again dismissed the case. Maghreb again appealed.\\n II.\\n We have jurisdiction over this case owing to the diversity of the parties,\\nso we apply Texas substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78\\n(1938). In doing so, we are bound by the decisions of the Supreme Court of\\nTexas. Comm’r v. Bosch’s Estate, 387 U.S. 456, 465 (1967). But when no\\ndecision of that court directly addresses the case before us, we are forced to\\nmake an Erie guess, doing our best to write the opinion the Texas high court\\nwould if it had the chance. 9 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir.\\n2018).\\n We must make such a guess to determine which of the Uniform\\nRecognition Acts applies. The Texas Constitution provides that “[n]o bill of\\nattainder, ex post facto law, retroactive law, or any law impairing the\\nobligation of contracts, shall be made.” Tex. Const. art. I, § 16. Although\\n\\n\\n\\n 9 Although neither party asks us to certify this question to the state court, in an\\namicus brief the State of Texas suggests we should consider it, especially if we are inclined\\nto overturn the statute. We decline to do so because we do not think application of the\\nSupreme Court of Texas’s many retroactivity precedents to this statute leaves us with a close\\ncall. Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 549 (5th Cir. 1998) (noting that the\\n“closeness of the question” and “the existence of sufficient sources of state law” are the most\\nimportant factors in deciding to certify (quotation omitted)). Moreover, a case in which a\\nforeign corporation is attempting to argue that a state legislature has passed a law as a favor\\nto one of its wealthiest citizens seems like the quintessential case for the exercise of diversity\\njurisdiction. Cf. 13E Charles Alan Wright et. al, FED. PRAC. & PROC. § 3601 (3d ed. 2019)\\n(describing the most common justification for federal diversity jurisdiction as “the fear that\\nstate courts would be prejudiced against out-of-state litigants, particularly when opposed by\\nan in-stater”).\\n 7\\n\\f Case: 18-50348 Document: 00515079314 Page: 8 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nphrased as an absolute prohibition, “[m]ere retroactivity is not sufficient to\\ninvalidate a statute.” Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d\\n126, 139 (Tex. 2010) (quotation omitted). Texas courts have tailored the scope\\nof the prohibition to “protect[] settled expectations and prevent[] abuse of\\nlegislative power.” Id. Three factors determinine whether a law runs afoul of\\nthose objectives: “the nature and strength of the public interest served by the\\nstatute as evidenced by the Legislature’s factual findings; the nature of the\\nprior right impaired by the statute; and the extent of the impairment.” Id. at\\n145. The nature and extent of the interference with a party’s rights loom\\nparticularly large. For that reason, “changes in the law that merely affect\\nremedies or procedure, or that otherwise have little impact on prior rights, are\\nusually not unconstitutionally retroactive.” Id. at 146; see also Univ. of Tex.\\nSw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548 (Tex. 2010)\\n(“Statutes . . . that do not deprive the parties of a substantive right . . . may be\\napplied to cases pending at the time of enactment.”).\\n The new law’s limited interference with Maghreb’s legitimate rights\\nresolves the question before us. Unlike Robinson—the seminal Texas case on\\nretroactivity—this is not a case in which a law that allowed a party’s recovery\\nwas changed to “abrogate their claim.” Robinson, 335 S.W.3d at 148. It is not\\neven certain that the law as it stood before the adoption of the updated act\\nwould have led to recognition of the Moroccan judgment. As we mentioned,\\nthe district court agreed to allow DeJoria to press several arguments for\\nnonrecognition after this court returned the case to its hands. 10 Because the\\n\\n\\n\\n 10 In particular, prior to the update of the law, DeJoria retained the ability to argue\\nthat two additional nonrecognition factors applied: that the “cause of action on which the\\njudgment is based is repugnant to the public policy” of Texas and that Morocco was a\\n“seriously inconvenient forum.” TEX. CIV. PRAC. & REM. CODE §§ 36.005(b)(3) and (6)\\n(Vernon’s 2015). Beyond the Recognition Act’s domain, DeJoria was also raising a federal\\ndue process challenge to recognition of the Moroccan judgment.\\n 8\\n\\f Case: 18-50348 Document: 00515079314 Page: 9 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\npassage of the new act made it unnecessary to address those claims, we do not\\nknow how likely they were to succeed. Maghreb’s expectation that it would\\nprevail was, in other words, not yet settled. See Union Carbide Corp. v.\\nSynatzske, 438 S.W.3d 39, 58 (Tex. 2014) (upholding retroactive application of\\na law because the plaintiff’s “recovery was not yet predictable” at the time the\\nlaw went into effect).\\n The bigger point, though, is that the retroactive law does not abrogate\\nMaghreb’s claim. It does not strip Maghreb of the ability to seek recognition\\nof the Moroccan judgment. It just gives a district court the ability to deny\\nrecognition if it finds the judgment was obtained in proceedings that were\\nincompatible with the requirements of due process. So the only right that has\\nbeen impinged is the right to automatic recognition of a judgment obtained in\\nproceedings that denied the judgment debtor fundamental fairness. To state\\nthat “right” is to show why we cannot recognize it, let alone allow its protection\\nto sink a state statute. Robinson, 335 S.W.3d at 146 (“[C]ourts must be mindful\\nthat statutes are not to be set aside lightly.”). Indeed, the absurdity of lending\\na court’s power to the vindication of fundamentally unfair proceedings is why\\nthe 2005 Uniform Act recognizes an absence of due process as one of the rare\\nsituations when an American court may not recognize a foreign judgment. It\\nis also noteworthy that the Supreme Court of Texas has only upheld challenges\\nto the retroactive application of a law on four occasions, all of which dealt with\\nlaws that revived expired claims or fully extinguished vested rights. Tenet\\nHospitals Ltd. v. Rivera, 445 S.W.3d 698, 708 (Tex. 2014) (collecting cases).\\nThe updated recognition act does neither.\\n We are mindful that the whiff of home cooking also pervades the Texas\\nside of this case. There is a deep irony in allowing DeJoria to contend he was\\ndenied due process in Morocco when it was his lobbying efforts that changed\\nthe rules of the game midway through the proceedings in the United States.\\n 9\\n\\f Case: 18-50348 Document: 00515079314 Page: 10 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nIndeed, the Supreme Court of Texas has been suspicious of retroactive laws\\nthat inure to the benefit of only one company or individual. 11 Robinson, 335\\nS.W.3d at 149. But in the retroactivity context as in others, “unfair does not\\nalways equal unconstitutional.” Id. at 160 (Willett, J. concurring). And it\\ncannot be said that a state’s desire to provide immediate protection to the due\\nprocess rights of its citizens is not compelling. When balanced against the\\nslight imposition on a right of dubious provenance, retroactive application of\\nthe updated Recognition Act does not violate the Texas Constitution.\\n III.\\n A.\\n Having decided that Texas’s choice to apply its new Recognition Act to\\npending cases was proper, we now must review the district court’s application\\nof that law. And to do that we must determine how closely we should scrutinize\\nthat court’s work.\\n Reciting the standard of review in an appellate opinion is often a rote\\nexercise. Not here. Recognizing that the appeal’s outcome largely turns on\\nthis question, the parties have spent considerable energy contesting whether\\nwe owe deference to certain district court rulings. Maghreb insists that we\\nshould review all aspects of the district court’s denial of recognition de novo,\\nlikening the inquiry to a review for legal sufficiency. DeJoria counters that we\\nshould review the court’s factual findings only for clear error.\\n Much of the confusion surrounding the standard of review arises from\\nthis case’s odd posture. The district court did not rule on a motion for summary\\njudgment or conduct a bench trial, but instead resolved a “motion for\\n\\n\\n 11 DeJoria points to one other recognition case that was pending at the time the law\\nwas passed, In re Carmona, 580 B.R. 690 (Bankr. S.D. Tex. 2018). But the Texas legislature\\nwas only made aware of one case that would be affected by the retroactivity provision—this\\none.\\n\\n 10\\n\\f Case: 18-50348 Document: 00515079314 Page: 11 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nnonrecognition.” That motion is a creature of state law. 12 Regardless of the\\nstyling of the motion on which the district court ruled, however, our appellate\\nstandard of review is governed by federal law, even in this diversity case. See\\nGoodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1040 (5th Cir. 2011); Tax\\nTrack Sys. Corp. v. New Investor World, Inc., 478 F.3d 783, 789 (7th Cir. 2007);\\nHershon v. Gibraltar Bldg. & Loan Ass’n, Inc., 864 F.2d 848, 852 (D.C. Cir.\\n1989). 13\\n The prior panel explained that “[w]hether the judgment debtor\\nestablished that [a] non-recognition provision[] applies is a question of law\\nreviewed de novo.” DeJoria, 804 F.3d at 379. We agree. But the panel had no\\ncause to determine the proper standard of review for the factual findings that\\nunderpin the district court’s legal decision. After all, the issues in that\\nappeal—whether the Moroccan system provides procedures compatible with\\ndue process, whether Moroccan law provides a mechanism to reciprocate\\nrecognition of Texas judgments, and whether the Moroccan court had personal\\njurisdiction over DeJoria—were all legal determinations. See FED. R. CIV. P.\\n44.1 (“The court’s determination [of foreign law] must be treated as a ruling on\\na question of law.”); In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant\\nProduct Liability Litig., 888 F.3d 753, 778 (5th Cir. 2018) (“This court reviews\\n[the] district court’s exercise of personal jurisdiction de novo.” (quotation\\nomitted)).\\n\\n\\n 12 It is not clear, then, how this type of motion found its way to federal court. In federal\\ncourt, the Federal Rules of Civil Procedure should govern how the parties seek and resist\\nrecognition of the judgment. See, e.g., Sw. Livestock and Trucking Co., Inc. v. Ramon, 169\\nF.3d 317, 321 & n.3 (5th Cir. 1999) (disposing of the recognition issue on a federal motion for\\nsummary judgment). Neither party, however, has objected to the use of state procedure in\\nthis federal action, leaving this panel in somewhat uncharted territory.\\n 13 If the Recognition Act demanded a particular standard of review for “manifestly\\n\\nsubstantive” ends, that might be a different story. See Gasperini v. Ctr. for Humanities, Inc.,\\n518 U.S. 415, 429 (1996) (holding that state law governs the trial court standard for\\ndetermining whether a verdict is excessive). It does not.\\n 11\\n\\f Case: 18-50348 Document: 00515079314 Page: 12 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\n But it is a venerable principle that a district court’s factual findings are\\nreversed only if clearly erroneous. FED. R. CIV. P. 52(a)(6) (standard for bench\\ntrials); see also Steven Alan Childress & Martha S. Davis, 1 FEDERAL\\nSTANDARDS OF REVIEW § 2.03[8] 2-32–33 (4th ed. 2010) (explaining that\\n“[m]any courts . . . have assumed that [the] clearly erroneous rule applies to\\nfindings made on motions in addition to trial findings”). Even when an\\nappellate court considers a legal question de novo, that plenary power of review\\ndoes not extend to subsidiary factual findings. See Allstate Ins. Co. v. Abbott,\\n495 F.3d 151, 160 (5th Cir. 2007) (“[S]ubsidiary facts are reviewed for clear\\nerror.”) (citing Maine v. Taylor, 477 U.S. 131, 144–45 (1986)). To take just one\\nexample, jurisdiction is a legal question. But the facts that underlie a\\njurisdictional determination are still reviewed only for clear error. See, e.g.,\\nid.; DePuy Orthopaedics, 888 F.3d at 778 (applying clear error review to\\n“underlying jurisdictional findings of fact” and de novo review to ultimate\\npersonal jurisdiction holding (quotation omitted)); Pederson v. La. State Univ.,\\n213 F.3d 858, 869 (5th Cir. 2000) (“If the district court resolves any factual\\ndisputes in making its jurisdictional findings,” those resolutions are\\noverturned only if “clearly erroneous.” (quotation omitted)). The same must be\\ntrue for factfinding that underpins the legal conclusion of nonrecognition.\\n Appellate court deference to district court factfinding is grounded in\\nconcerns of both expertise and efficiency. Maghreb points out that one of the\\nstrongest justifications for deference—the trial court’s ability to assess the\\ncredibility of live testimony, Anderson v. City of Bessemer City, 470 U.S. 564,\\n575 (1985)—is not present because the testimony of the foreign witnesses was\\npresented on paper. But we defer even when the trial court’s findings are\\n“based . . . on physical or documentary evidence or inferences from other facts.”\\nId. at 574. That is because “[t]he trial judge’s major role is the determination\\nof fact, and with experience in fulfilling that role comes expertise.” Id. Clear\\n 12\\n\\f Case: 18-50348 Document: 00515079314 Page: 13 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nerror review also promotes judicial efficiency. Id. at 574–75 (“Duplication of\\nthe trial judge’s efforts in the court of appeals would very likely contribute only\\nnegligibly to the accuracy of fact determination at a huge cost in diversion of\\njudicial resources.”). District court judges, who do the lion’s share of the work\\nin our federal system, do not dig through voluminous records only to have\\ncourts like this one restart the factfinding from scratch. Instead of redoing\\ntheir work, we defer to their findings so long as they take a permissible view\\nof the evidence. Id. at 574.\\n Although the standard of review is a federal issue, like the prior panel\\nwe “look to Texas law” governing recognition to see if anything counsels in a\\ndifferent direction. 14 DeJoria, 804 F.3d at 379. Nothing does. We see no Texas\\nrecognition case that conflicts with the principles of federal appellate review\\noutlined above. When a trial court is presented with conflicting evidence in\\nrecognition proceedings, Texas courts “defer to the trial court’s . . . resolution\\nof those conflicts.” Mariles v. Hector, No. 05-16-00814-CV, 2018 WL 3723104\\n*6 (Tex. App.—Dallas Aug. 6, 2018, pet. denied). Maghreb cites some Texas\\ncases that explain what we have acknowledged: that review of the district\\ncourt’s ultimate determination of the application of a nonrecognition factor\\n\\n\\n 14 As we have explained, the proper standard of appellate review is a question of\\nfederal law. We do not read this court’s 2015 opinion as out of step with that conclusion. It\\nmay be that the prior panel looked to Texas law only to ascertain whether recognition was a\\nlegal or factual question. See Childress & Davis, supra § 2.03[7] 2-32 n.158 (noting that,\\ndespite application of federal standards of review in diversity cases, “[u]se of state law-fact\\ncharacterization may be more defensible” as that question borders on the substantive). But\\nto the extent the prior panel’s opinion could be read to suggest that state law controls the\\napplicable standard of review in federal court, it announced principles with respect to “the\\ndistrict court’s recognition decision.” DeJoria, 804 F.3d at 379. Again, we answer a different\\nquestion—what level of scrutiny should we apply to the findings of fact subsidiary to that\\nultimate legal conclusion? That question, at least, is controlled by federal law.\\n In any event, we have perused Texas caselaw only out of an abundance of caution. It\\nis less useful this time around—no Texas case has yet analyzed the new factbound\\nnonrecognition factors added by the updated act.\\n\\n 13\\n\\f Case: 18-50348 Document: 00515079314 Page: 14 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nshould be de novo. See, e.g., Sanchez v. Palau, 317 S.W.3d 780, 785 (Tex.\\nApp.—Houston [1st Dist.] 2010, pet. denied) (“[W]e review de novo a trial\\ncourt’s ruling on recognition of a foreign country judgment.”); The Courage Co.,\\nL.L.C. v. The Chemshare Corp., 93 S.W.3d 323, 331 (Tex. App.—Houston [14th\\nDist.] 2002, no pet.) (same). 15 But they have pointed to no case that instructs\\na court of appeals to start on a blank slate in determining the facts. That is\\nnot surprising. Consistent with the standard practice, Texas courts also\\ngenerally defer to trial court factfinding. In re I.I.G.T., 412 S.W.3d 803, 806\\n(Tex. App.—Dallas 2013, no pet.) (explaining that an appellate court should\\nnot normally “disturb the [trial] court’s resolution of evidentiary conflicts that\\nturn on . . . the weight of the evidence”). We thus can disturb the district\\ncourt’s findings only if they are not “plausible in light of the record viewed in\\nits entirety.” Anderson, 470 U.S. at 574.\\n B.\\n Maghreb’s primary argument on appeal—that DeJoria lost his\\nopportunity to complain about the Moroccan proceedings because he failed to\\nparticipate in them—must overcome this deference to the district court’s\\nfactfinding. Maghreb notes that we have “flatly reject[ed]” the due process\\nobjections of judgment debtors who were “given, and waived, the opportunity\\nof making [an] adequate presentation” in the foreign tribunal. Society of\\nLloyd’s v. Turner, 303 F.3d 325, 331 n.20 (5th Cir. 2002) (quotation omitted);\\n\\n\\n 15 Varying procedural postures and a lack of clarity with respect to whether the\\nstandard of review depends on the nonrecognition factor at issue further frustrate the search\\nfor coherence on this question. See Ramon, 169 F.3d at 318 (analyzing recognition decision\\non summary judgment, which is always reviewed de novo); Banque Libanaise Pour Le\\nCommerce v. Khreich, 915 F.2d 1000, 1004 (5th Cir. 1990) (reviewing for abuse of discretion\\na trial court’s choice to apply a discretionary nonrecognition ground, like the ground at issue\\nin this case); Dart v. Balaam, 953 S.W.2d 478, 482–83 (Tex. App.—Fort Worth 1997, no pet.)\\n(reviewing for abuse of discretion the trial court’s determination whether Australia was an\\ninconvenient forum). The important point for this appeal is that we have seen no appellate\\ncourt in a recognition dispute engage in de novo factfinding.\\n 14\\n\\f Case: 18-50348 Document: 00515079314 Page: 15 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nsee also Dart, 953 S.W.2d at 480 (“Grounds for nonrecognition may be waived\\nif a party had the right to assert that ground as an objection or defense in the\\nforeign country but failed to do so.”).\\n But our limited authority when it comes to facts makes short work of\\nthat argument. The district court made three major findings to support\\nnonrecognition: 1) DeJoria’s fear for his safety should he return to Morocco to\\nlitigate was credible and arose directly from his involvement in the Moroccan\\nlawsuit, 2) because DeJoria’s position in the Moroccan lawsuit was directly\\nadverse to the interests of the royal family he was unable to retain a lawyer to\\nappear for him in the initial proceedings or to bring an appeal, and 3) although\\nthe determination of damages was based on expert opinion, the Moroccan court\\nmanipulated that process when it went through four experts before finding one\\nthat would deliver its preferred recommendation. Taken together, the first and\\nsecond findings mean that DeJoria was never “given . . . the opportunity of\\nmaking [an] adequate presentation” in Moroccan court and the third means\\nhis case did not otherwise receive fair treatment. Turner, 303 F.3d at 331 n.20.\\nSo unless those findings were clearly erroneous, Maghreb’s “waiver” argument\\nfails.\\n To be sure, Maghreb points to substantial evidence that could support\\ncontrary findings. Its problem is that there is evidence on both sides of these\\ndisputes. Even if Maghreb can convince us that its evidence is stronger, that\\nis not enough to establish that the district court’s crediting of DeJoria’s\\nevidence is implausible. Theriot v. Par. of Jefferson, 185 F.3d 477, 490 (5th\\nCir. 1999) (“Where the evidence can support findings either way, a choice by\\nthe trial judge between two permissible views of the weight of the evidence is\\nnot clearly erroneous.”)\\n Take for instance the finding that DeJoria credibly feared for his life and\\nso was unable to attend the Moroccan proceedings in person. Michael Gustin,\\n 15\\n\\f Case: 18-50348 Document: 00515079314 Page: 16 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nDeJoria’s business partner, described receiving a death threat and explained\\nthat it was directed at both him and DeJoria. DeJoria himself declared that\\nGustin communicated that threat to him and that he believed it was credible.\\nAnd the record contains evidence that their unsuccessful attempts to obtain\\nrepresentation in Morocco may have only heightened their fear. A French\\nattorney with some Moroccan experience told them that it was not only unsafe\\nfor DeJoria and Gustin to return to Morocco, but it would be “unsafe and\\nunwise for any lawyer” or “any sane person,” for that matter, to participate in\\na case that so closely touched the royal family’s interests. Nearly a decade\\nlater, that attorney repeated his concerns. The general counsel for Skidmore,\\nDeJoria’s company that spearheaded the Moroccan project, also says he was\\ntold to stay out of the country by a Moroccan attorney who had been hired to\\nhandle various clerical tasks as the Moroccan lawsuit proceeded. She warned\\nthat “any appearance by Skidmore or any personal representative of Skidmore\\nin the Moroccan lawsuit would be dangerous.”\\n Of course, these assertions all come from individuals who may have an\\naxe to grind in this case. And we are not told much about the circumstances\\nor content of the death threat because Gustin maintains that he “cannot reveal\\n[the] details . . . without compromising the safety of innocent people still in\\nMorocco.” Bias and lack of detail are classic impeachment evidence. But\\nimpeachment usually goes to the weight of the evidence. Arguing about the\\nweight of the evidence is not the terrain an appellant wants to be on. See La\\nDay v. Catalyst Tech., Inc., 302 F.3d 474, 480 (5th Cir. 2002) (noting that it is\\nthe factfinder who “ultimately . . . decide[s] which side has the greater weight\\nof the evidence”).\\n Nor does Maghreb get over the clearly-erroneous hurdle because it\\npresented testimony that DeJoria could have appeared and obtained counsel\\nin the Moroccan litigation. Choosing between conflicting testimony is the\\n 16\\n\\f Case: 18-50348 Document: 00515079314 Page: 17 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nprovince of the factfinder. See Anderson, 470 U.S. at 575 (concluding it “can\\nvirtually never be clear error” when a trial court “credit[s] the testimony of one\\nof two or more witnesses, each of whom has told a coherent and facially\\nplausible story that is not contradicted by extrinsic evidence”). And while\\nMaghreb emphasizes the testimony of its expert on Moroccan law, expert\\ntestimony does not automatically trump lay testimony. Breland v. United\\nStates, 372 F.2d 629, 633 (5th Cir. 1967) (“[L]ay testimony can be sufficient to\\nsatisfy [a party’s] burden even though there is expert testimony to the\\ncontrary.”); see also FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS 3.5 (Civil)\\n(2014) (explaining that, for expert witness testimony, “[a]s with any other\\nwitness, it is up to [the factfinder] to decide whether to rely on it”).\\n To undo factual determinations on appeal, Maghreb must convince us\\nnot that it has the more compelling evidence, but that the other side’s\\ntestimony is not “plausible.” Anderson, 470 U.S. at 574. Maghreb’s expert\\nwitness, a Moroccan attorney, contends that DeJoria’s worries were “baseless\\nand reflect[] his poor understanding of Morocco.” And they also point to several\\ninstances in which Moroccan courts have ruled against royal interests. But\\nthat a trier of fact could plausibly infer that the death threat was fabricated\\ndoes not mean it is implausible to find that the threat was real. Id. at 574.\\n The same may be said for the other two key findings. For instance,\\nalthough DeJoria was able to retain Moroccan attorneys as experts in\\nproceedings stateside after the Moroccan trial court handed down its\\njudgment, there was evidence that two of his attempts to obtain representation\\nin the Moroccan proceedings were rebuffed. And though there was no smoking\\ngun, it was not clear error for the district court to conclude that the Moroccan\\ncourt went fishing for an expert who would determine DeJoria and his partner\\nhad caused Maghreb substantial damages. After all, the expert who found\\nthose damages was the fifth appointed by the Moroccan court—the first three\\n 17\\n\\f Case: 18-50348 Document: 00515079314 Page: 18 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\n“concluded that they could not provide any firm opinion on the matter” and the\\nfourth was replaced for reasons that remain unclear.\\n Although the district court’s assessment of the evidence may be subject\\nto vigorous debate, it is the district court’s job to resolve evidentiary disputes,\\nnot ours. Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d\\n1031, 1036 (5th Cir. 2015) (explaining that, even when “there are two\\npermissible views of the evidence,” the trial court’s choice between them is\\ntypically owed “great deference”). Maghreb has not shown clear error. 16\\n C.\\n Perhaps realizing that its argument founders on the district court’s\\ndifficult-to-undo findings, Maghreb’s primary challenge to those findings is\\nthat they should not have been made in the first place. Each of the pertinent\\nfindings, it argues, was precluded by the prior panel’s opinion.\\n Under the law-of-the-case doctrine—and its corollary, the mandate\\nrule—when a district court receives a case on remand, it may not reexamine\\nthe legal or factual determinations of this court or otherwise disobey our\\nmandate. See Tollett v. City of Kemah, 285 F.3d 357, 363–64 (5th Cir. 2002).\\nThe reach of those related doctrines extends only to matters decided expressly\\nor by necessary implication. In re Felt, 255 F.3d 220, 225 (5th Cir. 2001). And\\nan issue is tacitly decided only when its disposition is a “necessary predicate[]\\nto the ability to address the issue or issues specifically discussed” in the\\nappellate court’s opinion. Id.\\n\\n\\n\\n\\n 16It is worth noting that the three trial judges who handled aspects of this case all\\ngenerally found DeJoria’s evidence about what happened in Morocco more persuasive than\\nMaghreb’s. Three trial judges have reviewed the case because this appeal comes from\\nfindings of a magistrate judge, adopted by the district judge, and the earlier appeal came\\nfrom findings of a different district judge. Although some of the findings in this phase of the\\ncase are new, they rely on much of the same testimony the district court relied on the first\\ntime around.\\n 18\\n\\f Case: 18-50348 Document: 00515079314 Page: 19 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\n The prior panel’s opinion did not preclude the findings the district court\\nmade on remand. First and foremost, the prior appeal was decided under a\\ndifferent law. United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002)\\n(describing an exception to the law-of-the-case doctrine when “there has been\\nan intervening change of law by a controlling authority”). That law did not\\nrequire the prior panel to determine whether DeJoria’s “specific proceeding[s]”\\nwere “compatible with the requirements of due process of law.” TEX. CIV. PRAC.\\n& REM. CODE § 36A.004(c)(8). So that panel had no cause to determine\\nwhether DeJoria could in fact safely return to Morocco or whether DeJoria\\ncould in fact retain representation. In determining whether the Moroccan legal\\nsystem made fair proceedings impossible, whether Moroccan courts would\\nreciprocate recognition, and whether the Moroccan commercial court had\\npersonal jurisdiction over DeJoria, the prior panel’s analysis was focused on\\nlegal questions. The fact-intensive inquiry demanded by Texas’s updated\\nRecognition Act put the case on a new playing field.\\n But even if the district court were operating in the same legal landscape,\\nnothing in the prior panel’s opinion forecloses the district court’s findings. The\\npanel held that the Moroccan court’s exercise of jurisdiction over DeJoria did\\nnot violate traditional notions of “fair play and substantial justice” because,\\ndespite any burden litigating in Morocco might place on DeJoria, “Moroccan\\ncourts do not require that the defendant appear personally, and DeJoria could\\nhave litigated entirely through counsel without returning to Morocco.”\\nDeJoria, 804 F.3d at 389. And, relying on testimony from a Moroccan attorney\\nacting as Maghreb’s expert, the court pointed out that “it is ‘not at all\\nuncommon’ for Moroccan attorneys to represent unpopular figures in Moroccan\\ncourts.” Id. at 383. But these general statements about usual Moroccan\\npractices did not address whether DeJoria could have found a willing attorney\\n\\n\\n 19\\n\\f Case: 18-50348 Document: 00515079314 Page: 20 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nin Morocco in his high-profile case. 17 Nor does it avail Maghreb to draw our\\nattention to the previous panel’s aside that, “[a]lthough our inquiry focuses on\\nMorocco’s judicial system, we also observe that the record does not establish\\nthat the King actually exerted any improper influence on the Moroccan court\\nin this case.” Id. at 382 n.9 (emphasis in original). For one, the comment is\\nadmittedly dicta—the footnote could have been erased from the opinion\\nwithout disrupting its systemwide holding in the slightest. Pegues v.\\nMorehouse Parish Sch. Bd., 706 F.2d 735, 738 (5th Cir. 1983) (explaining that\\nlaw of the case does not apply to dicta). And in any case, the question under\\nthe Texas statute is not whether the King actively undermined the\\nproceedings, but whether DeJoria was afforded a fundamentally fair hearing.\\nThe prior panel’s general observations did not foreclose the more searching\\nfactual inquiry now required under Texas law. 18\\n D.\\n Our holding that the district court did not clearly err in its factfinding\\nnor adopt those findings in the face of a contrary mandate from this court\\nleaves us little left to do. Maghreb does not dispute the nonrecognition\\nconclusion if we uphold the findings that DeJoria could neither appear\\npersonally nor find a lawyer to appear for him. That is a sensible stance.\\n\\n\\n 17 And nothing in the prior panel’s opinion foreclosed the district court’s finding that\\nDeJoria could not safely return to Morocco. Indeed, the prior panel did not even mention the\\nalleged threat on DeJoria’s life, let alone determine its credibility.\\n 18 Maghreb also argues at some length about the propriety of a host of other findings\\n\\nthat the magistrate made by readopting the findings made before the first appeal. For\\nreasons similar to those discussed above, we doubt there is much to Maghreb’s argument that\\nthose readopted findings were barred by the law of the case. Nor do we believe its argument\\nthat this court’s 2015 reversal rendered those factual findings “null and void” holds much\\nwater. In many other contexts, a district court will readopt its findings without fanfare when\\nan appeals court returns the case after locating a legal error. See, e.g., Chemtech Royalty\\nAssocs., L.P. v. United States, 823 F.3d 282, 287–88 (5th Cir. 2016); United States v. Ellis,\\n201 F. App’x 170 (4th Cir. 2006) (per curiam). But because we believe the new findings made\\nby the district court are sufficient to justify its nonrecognition decision, we see no need to\\nexplore this issue further.\\n 20\\n\\f Case: 18-50348 Document: 00515079314 Page: 21 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-50348\\nRecognition of a foreign-country judgment does not require the foreign court to\\n“comply with the traditional rigors of American due process.” Turner, 303 F.3d\\nat 330. But the opportunity to present one’s case is no minor twist or turn of\\nmodern due process jurisprudence: “The fundamental requirement of due\\nprocess is the opportunity to be heard at a meaningful time and in a\\nmeaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)\\n(quotation omitted). In light of the facts as found by the district court, it\\nproperly determined that DeJoria was denied due process in Morocco. The\\ndistrict court thus had and properly exercised discretion to deny recognition to\\nthe Moroccan judgment. 19\\n * * *\\n So despite the seeming complexity of this case—royal intrigue, a foreign\\nproceeding, almost a billion dirhams at stake—it ends up being resolved on one\\nof the most basic principles of appellate law: deference to the factfinder. The\\njudgment is AFFIRMED.\\n\\n\\n\\n\\n 19The parties also contest whether recognition should be denied because the Moroccan\\njudgment is repugnant to public policy or because failing to do so would violate the\\nFourteenth Amendment’s due process guarantee. Because we affirm the district court’s\\nnonrecognition decision on another ground, there is no need to discuss those disputes.\\n 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3674,"cells":{"id":{"kind":"number","value":4649202,"string":"4,649,202"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Rogelio Flores-Abarca v. William Barr, U. S. Atty"},"decision_date":{"kind":"string","value":"2019-08-16"},"docket_number":{"kind":"string","value":"17-60236"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"STEPHEN A. HIGGINSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-60236 Document: 00515080419 Page: 1 Date Filed: 08/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-60236\\n FILED\\n August 16, 2019\\n Lyle W. Cayce\\nROGELIO FLORES-ABARCA, Clerk\\n\\n Petitioner\\n\\nv.\\n\\nWILLIAM P. BARR, U. S. ATTORNEY GENERAL,\\n\\n Respondent\\n\\n\\n\\n\\n Petitions for Review of an Order of the\\n Board of Immigration Appeals\\n\\n\\nBefore DAVIS, HIGGINSON, and WILLETT, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n Rogelio Flores Abarca seeks review of a Board of Immigration Appeals\\n(BIA) decision holding that he is statutorily ineligible for cancellation of\\nremoval because of a 2004 firearm transportation conviction. We first conclude\\nthat Flores Abarca failed to exhaust his challenge to the immigration court’s\\njurisdiction based on alleged defects in his Notice to Appear. On the merits, we\\nhold that the Oklahoma misdemeanor of transporting a loaded firearm in a\\nmotor vehicle is not one of the firearms offenses listed under 8 U.S.C.\\n§ 1227(a)(2)(C). Accordingly, this conviction does not disqualify Flores Abarca\\nfrom seeking cancellation of removal. We grant the petition for review, vacate\\nthe BIA’s order, and remand for further proceedings.\\n\\f Case: 17-60236 Document: 00515080419 Page: 2 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n I.\\n Flores Abarca is a native and citizen of Mexico. He entered the United\\nStates unlawfully in 1988, when he was five years old. He currently lives in\\nOklahoma and has four U.S. citizen children. In January 2004, Flores Abarca\\npleaded guilty to the Oklahoma misdemeanor offense of transporting a loaded\\nfirearm in a motor vehicle. See OKLA. STAT. tit. 21 § 1289.13. In May 2015,\\nthe Department of Homeland Security initiated removal proceedings against\\nFlores Abarca, alleging that he was present in the United States without\\nhaving been admitted or paroled. The Notice to Appear was personally served\\non Flores Abarca and instructed him to appear before an immigration judge in\\nDallas at a date and time to be set. Flores Abarca later received a notice of\\nhearing with a specific date and time, and he personally appeared in Dallas\\nimmigration court on October 19, 2015. At this hearing, Flores Abarca\\nacknowledged receipt of the Notice to Appear, conceded his removability, and\\nstated that he wished to seek cancellation of removal.\\n Cancellation of removal is a form of relief available to certain otherwise\\nremovable aliens. See 8 U.S.C. § 1229b. To be eligible for this relief, a\\nnonpermanent resident such as Flores Abarca must (1) have been continuously\\nphysically present in the United States for at least 10 years; (2) demonstrate\\ngood moral character during this period; (3) not be convicted of an offense\\nunder 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3); and (4) “establish[]\\nthat removal would result in exceptional and extremely unusual hardship to\\nthe alien’s spouse, parent, or child, who is a citizen of the United States or an\\nalien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1).\\n Flores Abarca requested cancellation of removal based on hardship to his\\nfour young children and his ailing lawful permanent resident parents. The\\nimmigration judge asked for the government’s views regarding Flores Abarca’s\\neligibility in light of his firearm transportation conviction. The government\\n 2\\n\\f Case: 17-60236 Document: 00515080419 Page: 3 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nstated that it believed Flores Abarca was eligible for cancellation of removal,\\nand that it did not believe that his firearm transportation conviction fell under\\nthe statute’s firearms provision. The immigration judge nonetheless expressed\\nconcern about this conviction and ordered further briefing on the issue. In its\\nbrief, the government revised its original position and argued that Flores\\nAbarca is ineligible for cancellation of removal because of his firearm\\ntransportation conviction.\\n\\n After considering the parties’ briefs, the immigration judge held that\\nFlores Abarca’s conviction for transporting a loaded firearm is a firearms\\noffense described under 8 U.S.C. § 1227(a)(2)(C) and renders him ineligible for\\ncancellation of removal as a matter of law. Flores Abarca appealed his order of\\nremoval to the BIA. On March 3, 2017, the BIA affirmed the immigration court\\nin a published and precedential opinion. See Matter of Flores-Abarca, 26 I & N\\nDec. 922 (B.I.A. 2017). Flores Abarca timely moved for reconsideration. While\\nhis motion for reconsideration was pending, Flores Abarca filed a motion to\\nremand to the immigration court to permit him to apply for adjustment of\\nstatus. The BIA denied both motions. Flores Abarca now petitions for review\\nof the BIA’s decisions.\\n II.\\n For the first time on appeal, Flores Abarca seeks to challenge alleged\\ndefects in his Notice to Appear (NTA). This court generally lacks jurisdiction\\nto consider issues that were not first presented to the BIA. See Omari v. Holder,\\n562 F.3d 314, 318–19 (5th Cir. 2009); see also 8 U.S.C. § 1252(d) (“A court may\\nreview a final order of removal only if – (1) the alien has exhausted all\\nadministrative remedies available to the alien as of right”). Flores Abarca\\nnonetheless contends that he can raise this issue at any time because defects\\nin the NTA undermine the immigration court’s subject matter jurisdiction.\\nThis argument is foreclosed by our precedent. See Pierre-Paul v. Barr, 930 F.3d\\n 3\\n\\f Case: 17-60236 Document: 00515080419 Page: 4 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n684, 693 (5th Cir. 2019) (holding that 8 C.F.R. § 1003.14 is a non-jurisdictional\\nclaim processing rule, defects in which are waivable). Because Flores Abarca\\ndid not properly exhaust this issue, we lack jurisdiction to consider it. We\\ntherefore turn to the merits.\\n III.\\n The BIA held that Flores Abarca is ineligible for cancellation of removal\\nas a matter of law because “the crime of transporting a loaded firearm under\\nOklahoma law is categorically a firearms offense under” 8 U.S.C.\\n§ 1227(a)(2)(C). Flores-Abarca, 26 I & N Dec. at 924. Because the BIA reached\\nan independent legal conclusion on this question, “our review is confined to the\\nBIA’s analysis and reasoning.” Enrique-Gutierrez v. Holder, 612 F.3d 400, 407\\n(5th Cir. 2010). With limited exceptions, we may “only affirm the BIA on the\\nbasis of its stated rationale for ordering an alien removed from the United\\nStates.” Id. The sole issue before us is therefore the purely legal question of\\nwhether Flores Abarca’s Oklahoma firearm transportation conviction is\\ncategorically a disqualifying firearms offense under § 1227(a)(2)(C). We have\\njurisdiction to consider this legal issue. See 8 U.S.C. § 1252(a)(2)(D).\\n A.\\n We first review the relevant statutory framework. A nonpermanent\\nresident does not qualify for cancellation of removal if he has “been convicted\\nof an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)” of Title 8 of the\\nU.S. Code. 8 U.S.C. § 1229b(b)(1)(C). The specific provision at issue in this case\\nis § 1227(a)(2)(C), which renders deportable “[a]ny alien who at any time after\\nadmission is convicted” of certain firearms offenses. As a threshold matter,\\n\\n\\n\\n\\n 4\\n\\f Case: 17-60236 Document: 00515080419 Page: 5 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nFlores Abarca contends that § 1227(a)(2)(C) does not apply to him because he\\nwas never admitted to the United States. 1\\n This argument is foreclosed by our precedent. Flores Abarca was not\\ncharged with being removable under § 1227(a)(2)(C). This provision is relevant\\nto this case only because it is cross-referenced in the cancellation of removal\\nstatute. See § 1229b(b)(1)(C). We have held that this statutory cross-reference\\nsimply “identif[ies] the kinds of offenses that will make an alien ineligible for\\ncancellation of removal.” Nino v. Holder, 690 F.3d 691, 697 (5th Cir. 2012)\\n(emphasis added). “For purposes of that ineligibility, it does not matter when\\nthe offense occurred in relation to the alien’s admission.” Id. at 697–98; see also\\nAleman v. Holder, 541 F. App’x 457, 459 (5th Cir. 2013) (“Nino v. Holder held\\nthe plain language of § 1229b(b)(1)(C) unambiguously refers to the elements of\\nthe offenses set forth in the three statutes and does not refer to any aspects of\\nimmigration law.”).\\n Flores Abarca is therefore ineligible for cancellation of removal if he was\\nconvicted of an offense listed in § 1227(a)(2)(C), regardless of whether he had\\nbeen admitted to the United States at the time of conviction. This provision\\nreads in full:\\n (C) Certain firearm offenses\\n\\n Any alien who at any time after admission is convicted under any\\n law of purchasing, selling, offering for sale, exchanging, using,\\n owning, possessing, or carrying, or of attempting or conspiring to\\n purchase, sell, offer for sale, exchange, use, own, possess, or carry,\\n any weapon, part, or accessory which is a firearm or destructive\\n device (as defined in section 921(a) of Title 18) in violation of any\\n law is deportable.\\n\\n\\n 1 We note that Flores Abarca failed to properly exhaust this issue before the BIA.\\nSee Omari, 562 F.3d at 319. Yet, as the government recognizes, exhaustion is not required\\nwhen the BIA has no power to grant the requested relief because of binding circuit precedent.\\nSee Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir. 2007). That is the case here.\\n 5\\n\\f Case: 17-60236 Document: 00515080419 Page: 6 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n8 U.S.C. § 1227(a)(2)(C).\\n The list of offenses in the statute does not include a conviction for\\n“transporting” a firearm in violation of any law.\\n The BIA reasoned, however, that “[a] plain reading of the statute makes\\n‘clear that Congress intended [it] to embrace the entire panoply of firearms\\noffenses.’” Flores-Abarca, 26 I & N Dec. at 923 (quoting Valerio-Ochoa v. INS,\\n241 F.3d 1092, 1095 (9th Cir. 2001)). The BIA further held that Flores Abarca\\n“necessarily had constructive ‘possession’ of the firearm for purposes of”\\n§ 1227(a)(2)(C) when he violated the Oklahoma firearm transportation statute.\\nId. Finally, the BIA opined that “it would be illogical to hold that unlawful\\npossession of a loaded firearm would fall within the scope of [§ 1227(a)(2)(C)]\\nbut that unlawfully transporting the same weapon would not.” Id. at 924. We\\naddress each rationale in turn.\\n B.\\n The government urges us to hold that a plain reading of the statute\\ndemonstrates that Congress intended § 1227(a)(2)(C) “to apply broadly to any\\ntype of firearm offense.” Alternatively, the government asks us to accord\\nChevron deference to the BIA’s view that the statute encompasses “firearms\\noffenses of any type.” Although this expansive reading would certainly simplify\\nour analysis, we decline the government’s invitation to rewrite the statutory\\ntext.\\n We review the BIA’s “legal conclusions de novo unless a conclusion\\nembodies the Board’s interpretation of an ambiguous provision of a statute\\nthat it administers.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). In\\nthe latter situation, a precedential decision by the BIA “is entitled to the\\ndeference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense\\nCouncil, 467 U.S. 837 (1984).” Ali v. Lynch, 814 F.3d 306, 309 (5th Cir. 2016)\\n(cleaned up). “If Congress has explicitly left a gap for the agency to fill, there\\n 6\\n\\f Case: 17-60236 Document: 00515080419 Page: 7 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nis an express delegation of authority to the agency to elucidate a specific\\nprovision of the statute by regulation.” Orellana-Monson v. Holder, 685 F.3d\\n511, 517 (5th Cir. 2012) (quoting Chevron, 467 U.S. at 843–44). Before\\naccording an agency Chevron deference, however, the “court must determine\\nfirst whether Congress has directly spoken to the question at issue.” Id. “If so,\\nthe court, as well as the agency, must give effect to the unambiguously\\nexpressed intent of Congress.” Id.\\n The BIA’s decision in this case is published and precedential, and thus\\neligible for Chevron deference. See Flores-Abarca, 26 I & N Dec. 922. But\\nneither the BIA nor the government on appeal identify any ambiguity in the\\nfirearms offense provision. The BIA instead relied on its “plain reading of the\\nstatute.” Id. at 923. “Chevron deference must be reflective, not reflexive.”\\nForrest Gen. Hosp. v. Azar, 926 F.3d 221, 228 (5th Cir. 2019). Absent statutory\\nambiguity, the government may not invoke Chevron to shield agency reasoning\\nfrom judicial scrutiny. Id.; Orellana-Monson, 685 F.3d at 517.\\n The text of § 1227(a)(2)(C) is neither vague nor unclear. Rather, it\\nunambiguously renders a large number of firearms convictions grounds for\\ndeportation. The provision applies to any alien, including legal permanent\\nresidents, convicted of “purchasing, selling, offering for sale, exchanging,\\nusing, owning, possessing, or carrying . . . a firearm or destructive device,” or\\n“of attempting or conspiring” to commit any of these offenses. 8 U.S.C.\\n§ 1227(a)(2)(C). Contrary to the government’s position, however, the statute\\ndoes not state that “any type of firearm offense” is a basis for deportation. Nor\\ndoes the statute on its face reach “the entire panoply of firearms offenses.’”\\nFlores-Abarca, 26 I & N Dec. at 923 (quotation omitted). If that were Congress’s\\nintent, it could easily have said so. The same statute, for example, renders\\ndeportable any alien convicted of violating “any law or regulation of a State,\\nthe United States, or a foreign country relating to a controlled substance (as\\n 7\\n\\f Case: 17-60236 Document: 00515080419 Page: 8 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\ndefined in section 802 of Title 21),” with a narrow exception for personal\\nmarijuana possession. 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).\\n Congress could have used the same language to render deportable any\\nalien convicted of violating any law “relating to” a firearm. Instead, Congress\\nchose to enumerate a list of offenses. See Dep’t of Homeland Security v.\\nMacLean, 135 S. Ct. 913, 919 (2015) (explaining that “Congress generally acts\\nintentionally when it uses particular language in one section of a statute but\\nomits it in another”). Reflecting that choice, the provision is titled “Certain\\nfirearm offenses.” See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)\\n(explaining that while “headings are not commanding, they supply cues” as to\\nthe intended scope of a statute).\\n Notably, despite the expansive language of the controlled substance\\nprovision, the Supreme Court has declined to hold that Congress intended to\\ndeport every alien convicted of a drug offense. In Mellouli v. Lynch, the\\ngovernment argued that “aliens who commit drug crimes in States whose drug\\nschedules substantially overlap the federal schedules are removable, for state\\nstatutes that criminalize hundreds of federally controlled drugs and a handful\\nof similar substances, are laws relating to federally controlled substances.” 135\\nS. Ct. 1980, 1989 (2015) (quotation omitted). The Court rejected this\\nconstruction of § 1227(a)(2)(B)(i), explaining that “[t]his sweeping\\ninterpretation departs so sharply from the statute’s text and history that it\\ncannot be considered a permissible reading.” Id. at 1990. The Court also\\nrefused to adopt the BIA’s view that the statute covers all drug paraphernalia\\nconvictions on the grounds that drug paraphernalia statutes relate to “the drug\\ntrade in general.” Id. at 1988–89. The Court instead held that, “to trigger\\nremoval under § 1227(a)(2)(B)(i), the Government must connect an element of\\nthe alien’s conviction to a drug ‘defined in [§ 802].’” Id. at 1991.\\n\\n\\n 8\\n\\f Case: 17-60236 Document: 00515080419 Page: 9 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n The same logic applies here. A firearm conviction cannot trigger\\ndeportation or ineligibility for cancellation of removal under § 1227(a)(2)(C)\\nunless it fits within one of the statutorily enumerated offenses. This\\nconstruction is consistent with our prior applications of this statute, as well as\\nthat of other circuits. See Segovia-Rivas v. Lynch, 643 F. App’x 367, 369 (5th\\nCir. 2016) (holding that a conviction for “Attempted Deadly Conduct—\\nDischarge of a Firearm” is categorically an offense covered by § 1227(a)(2)(C)\\nbecause “[d]ischarging a firearm clearly involves use of a firearm”) (emphasis\\nadded); Aybar-Alejo v. INS, 230 F.3d 487, 488–89 (1st Cir. 2000) (explaining\\nthat a conviction for firearm possession under Rhode Island law is not broader\\nthan possession under federal law); Lopez-Amaro v. INS, 25 F.3d 986, 989–90\\n(11th Cir. 1994) (holding that “first degree murder with a pistol” qualifies as\\n“using a firearm in violation of any law”).\\n The government contends that several other circuits have interpreted\\n§ 1227(a)(2)(C) more expansively to “embrace the entire panoply of firearms\\noffenses.” Valerio-Ochoa, 241 F.3d at 1095; see also Kuhali v. Reno, 266 F.3d\\n93, 103 (2d Cir. 2001); Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999). The cases\\ncited do include some broad language regarding the scope of the firearms\\nprovision. But our sister circuits took care to locate the petitioner’s particular\\nconviction within one of the enumerated offenses. See Valerio-Ochoa, 241 F.3d\\nat 1095–96 (explaining that a conviction for “willfully discharg[ing] a firearm”\\nclearly “qualifies as ‘using’ a firearm under 8 U.S.C. § 1227(a)(2)(C)”); Kuhali,\\n266 F.3d at 105 (finding that exporting firearms without a license involves\\n“possessing” a firearm because “the power to send or take a commodity out of\\nthe country necessarily implies—because of the exercise of dominion or\\ncontrol—at least constructive possession”); Hall, 167 F.3d at 856 (holding that\\na conviction for making false statements in connection with the acquisition of\\na firearm was a conviction for “purchasing or attempting to purchase” a firearm\\n 9\\n\\f Case: 17-60236 Document: 00515080419 Page: 10 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nunder § 1227(a)(2)(C) because the petitioner “participated in and enabled an\\nunlawful purchase of a firearm”). These cases do not stand for the proposition\\nthat either the BIA or the courts are free to disregard the statute’s list of\\nenumerated offenses.\\n Despite its own broad language, the BIA similarly went on to consider\\nwhether Flores Abarca’s firearm transportation offense is a conviction for\\n“possessing” a firearm under § 1227(a)(2)(C). See Flores-Abarca, 26 I & N Dec.\\nat 923. We now review that determination.\\n C.\\n Flores Abarca is ineligible for cancellation of removal if he was “convicted\\nunder any law of . . . possessing . . . a firearm or destructive device.” 8 U.S.C.\\n§ 1227(a)(2)(C). The BIA held that Flores Abarca “necessarily had constructive\\n‘possession’ of the firearm” when he “knowingly and willfully transported” it in\\nhis vehicle, and “conclude[d] that the crime of transporting a loaded firearm\\nunder Oklahoma law is categorically a firearms offense under the Act.” Flores-\\nAbarca, 26 I&N Dec. at 923–24. Our analysis of federal and Oklahoma law\\ncompels a different conclusion.\\n Like the BIA, we must analyze Flores Abarca’s conviction under the\\ncategorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 192 (2013);\\nSegovia-Rivas, 643 F. App’x at 369. “Because Congress predicated deportation\\non convictions, not conduct, the approach looks to the statutory definition of\\nthe offense of conviction, not to the particulars of an alien’s behavior.” Mellouli,\\n135 S. Ct. at 1986 (quotation omitted). “[A] state offense is a categorical match\\nwith a generic federal offense only if a conviction of the state offense\\nnecessarily involved facts equating to the generic federal offense.” Moncrieffe,\\n569 U.S. at 190 (cleaned up). “[W]e are to look to the conviction itself as our\\nstarting place, not to what might have or could have been charged.” Carachuri-\\nRosendo v. Holder, 560 U.S. 563, 576 (2010). In the context of a guilty plea, a\\n 10\\n\\f Case: 17-60236 Document: 00515080419 Page: 11 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nconviction is a categorical match “only if the defendant ‘necessarily admitted\\n[the] elements of the generic offense.’” Descamps v. United States, 570 U.S. 254,\\n262 (2013) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).\\n Because we find that § 1227(a)(2)(C) “is unambiguous according to its\\nplain language with respect to the question presented,” we review the BIA’s\\nlegal conclusions de novo. Miresles-Zuniga v. Holder, 743 F.3d 110, 112 (5th\\nCir. 2014). We also review de novo the BIA’s interpretation of Flores Abarca’s\\nOklahoma offense, as “[d]etermining a particular federal or state crime’s\\nelements lies beyond the scope of the BIA’s delegated power or accumulated\\nexpertise.” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002); see also\\nSarmientos v. Holder, 742 F.3d 624, 627 (5th Cir. 2014) (“[N]o deference is\\nafforded in reviewing the BIA’s interpretation of state criminal law.”).\\n We first outline the elements of the generic federal offense of unlawful\\nfirearm possession. Under federal law, “possession” includes constructive\\npossession. See Henderson v. United States, 135 S. Ct. 1780, 1784 (2015); see\\nalso Aybar-Alejo, 230 F.3d at 488–89 (collecting cases). “Actual possession\\nexists when a person has direct physical control over a thing,” whereas\\n“[c]onstructive possession is established when a person, though lacking such\\nphysical custody, still has the power and intent to exercise control over the\\nobject.” Henderson, 135 S. Ct. at 1784. Yet mere possession of a firearm is not\\na criminal offense. 2 See District of Columbia v. Heller, 554 U.S. 570, 636 (2008).\\n“Assuming compliance with ordinary licensing requirements, the possession of\\na gun can be entirely innocent.” Rehaif v. United States, 139 S. Ct. 2191, 2197\\n(2019). The plain meaning of “possessing . . . a firearm . . . in violation of any\\n\\n\\n\\n\\n 2 Although Congress has restricted the rights of unlawfully present aliens to\\npossess firearms, the offenses listed in § 1227(a)(2)(C) apply to any alien, including legal\\npermanent residents. See, e.g., Valerio-Ochoa, 241 F.3d at 1094.\\n 11\\n\\f Case: 17-60236 Document: 00515080419 Page: 12 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nlaw” under § 1227(a)(2)(C) therefore requires that the possession be in some\\nrespect unlawful.\\n The parties agree that the elements of Flores Abarca’s Oklahoma offense\\nare: (1) knowingly; (2) willfully; (3) transporting; (4) a specified firearm; (5)\\nthat is loaded; (6) in the interior/(locked exterior compartment)/trunk; (7) of a\\nmotor vehicle; (8) on a public highway or roadway. See Okla. Unif. Jury Instr.\\nCR 6-37A; see also Flores-Abarca, 26 I & N Dec. at 923. These elements do not\\ninclude possession, much less unlawful possession. 3 On its face, the statute is\\ntherefore not a categorical match to the generic federal offense of unlawful\\nfirearm possession. See Moncrieffe, 569 U.S. at 190.\\n To resist this conclusion, the government argues that Flores Abarca’s act\\nof transporting a loaded firearm necessarily encompassed the possession or\\nconstructive possession of a firearm. The parties have not briefed the issue of\\nwhether an element of possession is sufficient to transform a conviction for a\\ndifferent firearms offense into a conviction for possessing a firearm within the\\nmeaning of § 1227(a)(2)(C). We have some doubts about this assumption. 4 Even\\naccepting the government’s framing of the issue, however, it is not the case\\nthat the Oklahoma offense of transporting a loaded firearm requires that the\\ndefendant actually or constructively possess a firearm.\\n\\n\\n\\n\\n 3 Oklahoma law recognizes separate offenses of unlawful firearm possession.\\nSee, e.g., OKLA. STAT. tit. 21 § 1280.1 (possession of a firearm on school property); § 1283\\n(possession of a firearm by a convicted felon). A conviction for one of these offenses does\\nrequire proof of possession. See Okla. Unif. Jury Instr. CR 6-37 (outlining the elements of\\n“unlawful possession of a firearm” as (1) knowing; (2) willful; (3) possession of/having under\\none’s immediate control; (4) a specified firearm; and (5) the specific ground for unlawfulness).\\n 4 We note that construing a conviction for “possessing” a firearm under\\n§ 1227(a)(2)(C) to include firearm convictions involving lawful possession plus an illegal act\\nmight render superfluous many of the other enumerated offenses, including “using,” and\\n“carrying” a firearm. See Bailey v. United States, 516 U.S. 137, 146 (1995) (adopting a limited\\nreading of “use” of a firearm to avoid creating redundancy with the term “carry”).\\n 12\\n\\f Case: 17-60236 Document: 00515080419 Page: 13 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n The term “transport” does not necessarily imply possession. The driver\\nof a vehicle can transport passengers and their possessions without having the\\n“power and intent to exercise control over” every object in the vehicle.\\nHenderson, 135 S. Ct. at 1784. As we have been clear, “dominion over the\\nvehicle . . . alone cannot establish constructive possession of a weapon found in\\nthe vehicle, particularly in the face of evidence that strongly suggests that\\nsomebody else exercised dominion and control over the weapon.” United States\\nv. Wright, 24 F.3d 732, 735 (5th Cir. 1994); see also United States v. Melancon,\\n662 F.3d 708, 713 (5th Cir. 2011) (“Where two people jointly occupy a space,\\ndominion over the space is not enough by itself to establish constructive\\npossession.”). Although knowledge of a firearm’s presence may be evidence of\\npossession, knowing transportation does not conclusively establish\\nconstructive possession as a matter of law. See Wright, 24 F.3d at 735\\n(explaining that “whether constructive possession exists is not a scientific\\ninquiry” and requires “a common sense, fact-specific approach”); United States\\nv. Crain, 33 F.3d 480, 486–87 (5th Cir. 1994) (finding insufficient evidence that\\ndefendant driver exercised constructive possession over drugs found in the\\nvehicle).\\n Oklahoma’s criminal prohibition against transporting loaded firearms in\\nvehicles clearly extends to firearms possessed by passengers. At the time of\\nFlores Abarca’s offense, the relevant statute read as follows:\\n Except as otherwise provided by . . . another provision of law\\n of this state, it shall be unlawful to transport a loaded pistol, rifle,\\n or shotgun in any landborne motor vehicle over a public highway\\n or roadway. However, a rifle or shotgun may be transported when\\n clip or magazine loaded and not chamber loaded when transported\\n in an exterior locked compartment of the vehicle or trunk of the\\n vehicle.\\n\\n Any person convicted of a violation of this section shall be\\n punished as provided in Section 1289.15 of this title.\\n 13\\n\\f Case: 17-60236 Document: 00515080419 Page: 14 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n\\n\\n Any person who is the operator of a vehicle or is a passenger\\n in any vehicle wherein another person who is licensed pursuant to\\n the Oklahoma Self-Defense Act, Sections 1 through 25 of this act,\\n to carry a concealed handgun and is carrying a concealed handgun\\n or has concealed the handgun in such vehicle, shall not be deemed\\n in violation of the provisions of this section provided the licensee\\n is in or near the vehicle.\\n\\nOKLA. STAT. tit. 21 § 1289.13 (2003).\\n The statute’s final paragraph protects a driver from liability if his\\npassenger has a concealed carry license. But a driver would have no such safe\\nharbor if he knowingly gave a ride to an armed passenger who lacked a\\nconcealed carry license. Even in cases where a defendant does have possession\\nof a firearm as a factual matter, Oklahoma is never required to prove\\npossession or constructive possession to obtain a conviction under this statute.\\nFlores Abarca thus did not “necessarily admit[] the elements of the generic\\noffense” of unlawful firearm possession by pleading guilty to this Oklahoma\\ntransportation offense. Descamps, 570 U.S. at 262 (quotation omitted).\\n The BIA’s contrary conclusion relied on a statement in United States v.\\nBass, that “virtually all transportations, whether interstate or intrastate,\\ninvolve an accompanying possession or receipt.” 404 U.S. 336, 340 (1971);\\nFlores-Abarca, 26 I & N Dec. at 924. This factual observation regarding the\\nfrequent overlap between transportation and possession offenses does not alter\\nour analysis. The question presented in Bass was whether the federal\\nprohibition on felons possessing, receiving, or transporting firearms requires\\nproof of a connection to interstate commerce in every case. 404 U.S. at 339. The\\nCourt held that “the phrase ‘in commerce or affecting commerce’ is part of all\\nthree offenses” rather than modifying only the transport offense. Id. at 347.\\nThe Supreme Court did not hold that the prohibition against felons\\ntransporting a firearm is redundant of the prohibition against possession, nor\\n 14\\n\\f Case: 17-60236 Document: 00515080419 Page: 15 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nthat all federal transportation offenses require proof of possession. 5 Such\\nholdings would have been consequential for federal criminal law, increasing\\nthe government’s burden of proof in transportation prosecutions and\\nintroducing redundancy in the federal criminal code. See, e.g., 18 U.S.C.\\n§ 922(g), (h)(1), (k). But that was not the issue presented in Bass, and it is not\\nthe issue the Court decided.\\n Importantly, the Supreme Court’s later decision in Muscarello v. United\\nStates, 524 U.S. 125 (1998), makes clear that transportation offenses remain\\ndistinct from possession offenses. The Court in Muscarello held that the phrase\\n“carries a firearm” in 18 U.S.C. § 924(c)(1) “applies to a person who knowingly\\npossesses and conveys firearms in a vehicle, including in the locked glove\\ncompartment or trunk of a car, which the person accompanies.” Id. at 126–27.\\nIn a dissenting opinion, Justice Ginsburg argued that this definition better\\ndescribes the term “transport” than the term “carry.” Id. at 146–48. 6 She noted\\nthat other federal statutes use the term “transport” rather than “carry” to\\n“describe[e] when and how a person may travel in a vehicle that contains his\\nfirearms.” Id. at 146–47 (citing 18 U.S.C §§ 925(a)(2)(B) and 926A). A majority\\nof the Court disagreed, explaining that its “definition does not equate ‘carry’\\nand ‘transport.’” Id. at 134. “‘Carry’ implies personal agency and some degree\\n\\n\\n\\n 5 We were not aided by the government’s briefing on this point, which incorrectly\\nattributed language from Malilia v. Holder, 632 F.3d 598, 604 (9th Cir. 2011) to Bass itself.\\nThis inaccurate citation was inquired into, but not corrected, at oral argument. We should\\nnot need to remind the government that, although we are bound by the precedent of the\\nSupreme Court, we are not bound by another circuit’s interpretation of that precedent. In\\nany event, we do not find support in Bass for the proposition that “establishing that a firearm\\ntraveled interstate necessarily requires some element of possession.” Malilia, 632 F.3d at\\n604. We similarly part ways with the Second Circuit’s interpretation of Bass to imply an\\nelement of possession in transportation offenses. See Kuhali, 266 F.3d at 105.\\n 6 The Eleventh Circuit expressed a similar view in a case predating Muscarello.\\nSee United States v. Richards, 967 F.2d 1189, 1195 (8th Cir. 1992) (construing “the ordinary\\nmeaning of the term ‘transport’ . . . as involving an element of possession and an element of\\nmovement”).\\n 15\\n\\f Case: 17-60236 Document: 00515080419 Page: 16 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nof possession, whereas ‘transport’ does not have such a limited connotation and,\\nin addition, implies the movement of goods in bulk over great distances.” Id.\\n(emphasis added).\\n This distinction is fully consistent with our construction of the Oklahoma\\nstatute at issue in this case. Although carrying a firearm requires “some degree\\nof possession,” transporting a firearm does not. Id. The government attempts\\nto distinguish Muscarello by arguing that the Supreme Court understood\\n“transport” to refer only to the “movement of goods in bulk,” whereas Flores\\nAbarca’s Oklahoma transportation offense is more akin to “carrying.” Id. This\\nargument is unavailing. The Supreme Court discussed several statutes that\\napply the term “transport” to single firearms. See id. at 134–36; see also 18\\nU.S.C § 924(b) (imposing criminal penalties on someone who “transports . . . a\\nfirearm” with intent to commit a felony). Notably, the statute most central to\\nthe disagreement between the majority and the dissent, 18 U.S.C. § 926A, uses\\nthe term “transport” in precisely the same context as the Oklahoma statute at\\nissue here. See id. (providing that individuals are “entitled to transport a\\nfirearm for any lawful purpose,” so long as “during such transportation the\\nfirearm is unloaded” and not “directly accessible from the passenger\\ncompartment of such transporting vehicle”). The Court specifically addressed\\n§ 926A and reiterated its conclusion that “the word ‘transport’ is broader than\\nthe word ‘carry.’” Muscarello, 524 U.S. at 135. We have no basis to conclude\\nthat the term “transport” has a different meaning under Oklahoma law than\\nunder federal law. 7\\n\\n\\n\\n 7 The government represented at oral argument that its briefing and the BIA’s\\nopinion had relied on Oklahoma caselaw interpreting transportation to require an element\\nof constructive possession. As the government commendably acknowledged in a post-\\nargument letter to the court, this representation was mistaken. The government’s letter\\nbelatedly points us to a decision from the Oklahoma Court of Criminal Appeals, Allen v. State,\\n871 P.2d 79 (Okla. Crim. App. 1994), as support for its position. We emphasize that “[t]he\\n 16\\n\\f Case: 17-60236 Document: 00515080419 Page: 17 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n We acknowledge that our analysis is in tension with the outcome reached\\nby the Eighth Circuit in Awad v. Gonzales, 494 F.3d 723 (8th Cir. 2007). Awad,\\na legal permanent resident and “a sport hunter lawfully hunting,” was cited\\nfor transporting a loaded hunting rifle in his vehicle. Id. at 724. The BIA held\\nthat this misdemeanor game and fish law violation rendered Awad deportable\\nunder § 1227(a)(2)(C). Id. at 724–25. Awad petitioned for review, arguing that\\nhis hunting rifle fell within an exception to the federal definition of a firearm.\\nId. at 725. The court rejected this argument and affirmed. Id. at 726–27. The\\nissue of whether § 1227(a)(2)(C) encompasses transportation offenses was\\napparently not raised before the Eighth Circuit, and the court did not squarely\\naddress it. Instead, the court deferred to the BIA without examining the\\nspecific offenses enumerated in § 1227(a)(2)(C) or identifying any ambiguity in\\nthe statutory language. Id. at 725. We therefore do not find Awad persuasive\\nas to the question presented in this appeal.\\n In sum, we hold that Flores Abarca’s misdemeanor conviction for\\nunlawfully transporting a loaded firearm in a motor vehicle does not include\\nunlawful possession as a necessary element and does not categorically match\\nan offense listed under 8 U.S.C. § 1227(a)(2)(C).\\n\\n\\n\\n\\nproper time to closely examine the record and develop legal defenses is before the completion\\nof briefing,” not after oral argument. United States v. Arellano-Banuelos, 912 F.3d 862, 865\\nn.2 (5th Cir. 2019). Even if the government’s new argument were properly before us, it would\\nnot affect our conclusion. The defendant in Allen was charged with “carrying a loaded\\nfirearm.” 871 P.2d at 102. The Oklahoma Court of Criminal Appeals reversed this conviction,\\nexplaining that simple possession of a firearm is not a crime. Id. at 103. To constitute a crime,\\nthe “carrying” must be unlawful in some additional way, such as “carrying a loaded firearm\\nin a vehicle” or “carrying any firearm after conviction of a felony.” Id. The Oklahoma court\\ndid not, however, hold that “carrying” a firearm is the only means to commit the offense of\\nunlawful transportation of a firearm in a motor vehicle. Rather, its decision is consistent with\\nthe proposition that “‘transport’ is a broader category that includes ‘carry’ but also\\nencompasses other activity.” Muscarello, 524 U.S. at 135.\\n 17\\n\\f Case: 17-60236 Document: 00515080419 Page: 18 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n D.\\n Finally, we address the BIA’s view that omitting firearm transportation\\noffenses from the scope of § 1227(a)(2)(C) is “illogical” and inconsistent with\\nlegislative history. Flores-Abarca, 26 I&N Dec. at 924. The BIA observes that,\\nin the original version of the statute, “only the crimes of ‘possessing or carrying’\\na firearm were a basis for deportation.” Id. “Subsequent legislation expanded\\nthe deportable offenses to the current extensive list of crimes, as well as\\nattempts and conspiracies to commit them.” Id. This history, however, can be\\nread in multiple ways. On the one hand, Congress may have wished to expand\\nthe reach of § 1227(a)(2)(C) to cover all firearms offenses, and simply neglected\\nto include the term “transporting” when amending the statute. Such an\\noversight would be somewhat surprising, as federal criminal law extensively\\nregulates the transportation of firearms. See, e.g., 18 U.S.C. § 922(a)(1)–(5), (i),\\n(n), § 924(b). On the other hand, Congress may have made a deliberate choice\\nto add some firearms offenses but not others. Regardless, “[w]e cannot replace\\nthe actual text with speculation as to Congress’ intent.” Magwood v. Patterson,\\n561 U.S. 320, 334 (2010).\\n Nor can we substitute either the BIA’s policy views or our own judgment\\nfor that of Congress. See Rodriguez v. United States, 480 U.S. 522, 525–26\\n(1987). Congress clearly intended to render deportable most aliens convicted of\\ngun crimes, but it chose to effectuate this goal by specifying a list of offenses.\\n“Legislation is, after all, the art of compromise, the limitations expressed in\\nstatutory terms often the price of passage, and no statute yet known pursues\\nits stated purpose at all costs.” Henson v. Santander Consumer USA Inc., 137\\nS. Ct. 1718, 1725 (2017) (cleaned up). We must therefore “presume that a\\nlegislature says in a statute what it means and means in a statute what it says\\nthere.” Connecticut National Bank v. Germain, 503 U.S. 249, 253–54 (1992).\\n\\n\\n 18\\n\\f Case: 17-60236 Document: 00515080419 Page: 19 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n “[W]hen the statute’s language is plain, the sole function of the courts—\\nat least where the disposition required by the text is not absurd—is to enforce\\nit according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters\\nBank, N.A., 530 U.S. 1, 6 (2000) (cleaned up). Here, a plain reading of the\\nstatute produces no absurd results. The BIA maintains that it would be\\n“illogical to hold that unlawful possession of a loaded firearm would fall within\\nthe scope of [§ 1227(a)(2)(C)] but that unlawfully transporting the same\\nweapon would not.” Flores-Abarca, 26 I&N Dec. at 924. We disagree. As\\npreviously emphasized, firearms are not inherently illicit. An individual can\\ncommit a transportation offense even if transporting a legally-owned firearm\\nfrom one lawful location to another, for an entirely lawful purpose. See, e.g.,\\nAwad, 494 F.3d at 724 (noting that Awad was “a sport hunter lawfully hunting”\\nwhen he was cited for transporting a loaded hunting rifle). Moreover, mere\\ntransportation lacks the elements of unlawful possession or use that can make\\nfirearm offenses particularly dangerous. See, e.g., Muscarello, 524 U.S. at 135–\\n36 (noting that Congress “impose[d] a less strict sentencing regime” on firearm\\ntransport offenses under 18 U.S.C. § 924(b) than firearm carrying offenses\\nunder § 924(c)).\\n It is thus rational for Congress to treat unlawful firearm transportation\\ndifferently from unlawful possession. We also note that § 1227(a)(2)(C) is not\\nthe sole removal provision applicable to firearms offenses. Congress has\\nseparately designated certain serious firearm transportation offenses as\\naggravated felonies, including transporting a firearm with the intent to\\ncommit a felony. See 8 U.S.C. § 1101(43)(E)(ii); see also 18 U.S.C. § 922(g)(1)–\\n(5); § 922(n); § 924(b). An alien convicted of one of these offenses is deportable\\nunder § 1227(a)(2)(A)(iii), notwithstanding our construction of § 1227(a)(2)(C).\\nThe statutory scheme as a whole does not create any illogical gaps in\\nimmigration enforcement.\\n 19\\n\\f Case: 17-60236 Document: 00515080419 Page: 20 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n IV.\\n Flores Abarca’s Oklahoma firearm transportation conviction is not an\\noffense under 8 U.S.C. § 1227(a)(2)(C) and does not render him statutorily\\nineligible for cancellation of removal. In light of this holding, we need not reach\\nthe question of whether the BIA abused its discretion in denying Flores\\nAbarca’s motions for reconsideration and remand.\\n We GRANT the petition for review, VACATE the decision of the BIA,\\nand REMAND for further proceedings not inconsistent with this opinion.\\n\\n\\n\\n\\n 20\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426455/\", \"author_raw\": \"STEPHEN A. HIGGINSON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"HIGGINSON"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"DAVIS\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4649202/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Rogelio Flores-Abarca v. William Barr, U. S. Atty\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-60236 Document: 00515080419 Page: 1 Date Filed: 08/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 17-60236\n FILED\n August 16, 2019\n Lyle W. Cayce\nROGELIO FLORES-ABARCA, Clerk\n\n Petitioner\n\nv.\n\nWILLIAM P. BARR, U. S. ATTORNEY GENERAL,\n\n Respondent\n\n\n\n\n Petitions for Review of an Order of the\n Board of Immigration Appeals\n\n\nBefore DAVIS, HIGGINSON, and WILLETT, Circuit Judges.\nSTEPHEN A. HIGGINSON, Circuit Judge:\n Rogelio Flores Abarca seeks review of a Board of Immigration Appeals\n(BIA) decision holding that he is statutorily ineligible for cancellation of\nremoval because of a 2004 firearm transportation conviction. We first conclude\nthat Flores Abarca failed to exhaust his challenge to the immigration court’s\njurisdiction based on alleged defects in his Notice to Appear. On the merits, we\nhold that the Oklahoma misdemeanor of transporting a loaded firearm in a\nmotor vehicle is not one of the firearms offenses listed under 8 U.S.C.\n§ 1227(a)(2)(C). Accordingly, this conviction does not disqualify Flores Abarca\nfrom seeking cancellation of removal. We grant the petition for review, vacate\nthe BIA’s order, and remand for further proceedings.\n\f Case: 17-60236 Document: 00515080419 Page: 2 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\n I.\n Flores Abarca is a native and citizen of Mexico. He entered the United\nStates unlawfully in 1988, when he was five years old. He currently lives in\nOklahoma and has four U.S. citizen children. In January 2004, Flores Abarca\npleaded guilty to the Oklahoma misdemeanor offense of transporting a loaded\nfirearm in a motor vehicle. See OKLA. STAT. tit. 21 § 1289.13. In May 2015,\nthe Department of Homeland Security initiated removal proceedings against\nFlores Abarca, alleging that he was present in the United States without\nhaving been admitted or paroled. The Notice to Appear was personally served\non Flores Abarca and instructed him to appear before an immigration judge in\nDallas at a date and time to be set. Flores Abarca later received a notice of\nhearing with a specific date and time, and he personally appeared in Dallas\nimmigration court on October 19, 2015. At this hearing, Flores Abarca\nacknowledged receipt of the Notice to Appear, conceded his removability, and\nstated that he wished to seek cancellation of removal.\n Cancellation of removal is a form of relief available to certain otherwise\nremovable aliens. See 8 U.S.C. § 1229b. To be eligible for this relief, a\nnonpermanent resident such as Flores Abarca must (1) have been continuously\nphysically present in the United States for at least 10 years; (2) demonstrate\ngood moral character during this period; (3) not be convicted of an offense\nunder 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3); and (4) “establish[]\nthat removal would result in exceptional and extremely unusual hardship to\nthe alien’s spouse, parent, or child, who is a citizen of the United States or an\nalien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1).\n Flores Abarca requested cancellation of removal based on hardship to his\nfour young children and his ailing lawful permanent resident parents. The\nimmigration judge asked for the government’s views regarding Flores Abarca’s\neligibility in light of his firearm transportation conviction. The government\n 2\n\f Case: 17-60236 Document: 00515080419 Page: 3 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\nstated that it believed Flores Abarca was eligible for cancellation of removal,\nand that it did not believe that his firearm transportation conviction fell under\nthe statute’s firearms provision. The immigration judge nonetheless expressed\nconcern about this conviction and ordered further briefing on the issue. In its\nbrief, the government revised its original position and argued that Flores\nAbarca is ineligible for cancellation of removal because of his firearm\ntransportation conviction.\n\n After considering the parties’ briefs, the immigration judge held that\nFlores Abarca’s conviction for transporting a loaded firearm is a firearms\noffense described under 8 U.S.C. § 1227(a)(2)(C) and renders him ineligible for\ncancellation of removal as a matter of law. Flores Abarca appealed his order of\nremoval to the BIA. On March 3, 2017, the BIA affirmed the immigration court\nin a published and precedential opinion. See Matter of Flores-Abarca, 26 I & N\nDec. 922 (B.I.A. 2017). Flores Abarca timely moved for reconsideration. While\nhis motion for reconsideration was pending, Flores Abarca filed a motion to\nremand to the immigration court to permit him to apply for adjustment of\nstatus. The BIA denied both motions. Flores Abarca now petitions for review\nof the BIA’s decisions.\n II.\n For the first time on appeal, Flores Abarca seeks to challenge alleged\ndefects in his Notice to Appear (NTA). This court generally lacks jurisdiction\nto consider issues that were not first presented to the BIA. See Omari v. Holder,\n562 F.3d 314, 318–19 (5th Cir. 2009); see also 8 U.S.C. § 1252(d) (“A court may\nreview a final order of removal only if – (1) the alien has exhausted all\nadministrative remedies available to the alien as of right”). Flores Abarca\nnonetheless contends that he can raise this issue at any time because defects\nin the NTA undermine the immigration court’s subject matter jurisdiction.\nThis argument is foreclosed by our precedent. See Pierre-Paul v. Barr, 930 F.3d\n 3\n\f Case: 17-60236 Document: 00515080419 Page: 4 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\n684, 693 (5th Cir. 2019) (holding that 8 C.F.R. § 1003.14 is a non-jurisdictional\nclaim processing rule, defects in which are waivable). Because Flores Abarca\ndid not properly exhaust this issue, we lack jurisdiction to consider it. We\ntherefore turn to the merits.\n III.\n The BIA held that Flores Abarca is ineligible for cancellation of removal\nas a matter of law because “the crime of transporting a loaded firearm under\nOklahoma law is categorically a firearms offense under” 8 U.S.C.\n§ 1227(a)(2)(C). Flores-Abarca, 26 I & N Dec. at 924. Because the BIA reached\nan independent legal conclusion on this question, “our review is confined to the\nBIA’s analysis and reasoning.” Enrique-Gutierrez v. Holder, 612 F.3d 400, 407\n(5th Cir. 2010). With limited exceptions, we may “only affirm the BIA on the\nbasis of its stated rationale for ordering an alien removed from the United\nStates.” Id. The sole issue before us is therefore the purely legal question of\nwhether Flores Abarca’s Oklahoma firearm transportation conviction is\ncategorically a disqualifying firearms offense under § 1227(a)(2)(C). We have\njurisdiction to consider this legal issue. See 8 U.S.C. § 1252(a)(2)(D).\n A.\n We first review the relevant statutory framework. A nonpermanent\nresident does not qualify for cancellation of removal if he has “been convicted\nof an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)” of Title 8 of the\nU.S. Code. 8 U.S.C. § 1229b(b)(1)(C). The specific provision at issue in this case\nis § 1227(a)(2)(C), which renders deportable “[a]ny alien who at any time after\nadmission is convicted” of certain firearms offenses. As a threshold matter,\n\n\n\n\n 4\n\f Case: 17-60236 Document: 00515080419 Page: 5 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\nFlores Abarca contends that § 1227(a)(2)(C) does not apply to him because he\nwas never admitted to the United States. 1\n This argument is foreclosed by our precedent. Flores Abarca was not\ncharged with being removable under § 1227(a)(2)(C). This provision is relevant\nto this case only because it is cross-referenced in the cancellation of removal\nstatute. See § 1229b(b)(1)(C). We have held that this statutory cross-reference\nsimply “identif[ies] the kinds of offenses that will make an alien ineligible for\ncancellation of removal.” Nino v. Holder, 690 F.3d 691, 697 (5th Cir. 2012)\n(emphasis added). “For purposes of that ineligibility, it does not matter when\nthe offense occurred in relation to the alien’s admission.” Id. at 697–98; see also\nAleman v. Holder, 541 F. App’x 457, 459 (5th Cir. 2013) (“Nino v. Holder held\nthe plain language of § 1229b(b)(1)(C) unambiguously refers to the elements of\nthe offenses set forth in the three statutes and does not refer to any aspects of\nimmigration law.”).\n Flores Abarca is therefore ineligible for cancellation of removal if he was\nconvicted of an offense listed in § 1227(a)(2)(C), regardless of whether he had\nbeen admitted to the United States at the time of conviction. This provision\nreads in full:\n (C) Certain firearm offenses\n\n Any alien who at any time after admission is convicted under any\n law of purchasing, selling, offering for sale, exchanging, using,\n owning, possessing, or carrying, or of attempting or conspiring to\n purchase, sell, offer for sale, exchange, use, own, possess, or carry,\n any weapon, part, or accessory which is a firearm or destructive\n device (as defined in section 921(a) of Title 18) in violation of any\n law is deportable.\n\n\n 1 We note that Flores Abarca failed to properly exhaust this issue before the BIA.\nSee Omari, 562 F.3d at 319. Yet, as the government recognizes, exhaustion is not required\nwhen the BIA has no power to grant the requested relief because of binding circuit precedent.\nSee Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir. 2007). That is the case here.\n 5\n\f Case: 17-60236 Document: 00515080419 Page: 6 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\n8 U.S.C. § 1227(a)(2)(C).\n The list of offenses in the statute does not include a conviction for\n“transporting” a firearm in violation of any law.\n The BIA reasoned, however, that “[a] plain reading of the statute makes\n‘clear that Congress intended [it] to embrace the entire panoply of firearms\noffenses.’” Flores-Abarca, 26 I & N Dec. at 923 (quoting Valerio-Ochoa v. INS,\n241 F.3d 1092, 1095 (9th Cir. 2001)). The BIA further held that Flores Abarca\n“necessarily had constructive ‘possession’ of the firearm for purposes of”\n§ 1227(a)(2)(C) when he violated the Oklahoma firearm transportation statute.\nId. Finally, the BIA opined that “it would be illogical to hold that unlawful\npossession of a loaded firearm would fall within the scope of [§ 1227(a)(2)(C)]\nbut that unlawfully transporting the same weapon would not.” Id. at 924. We\naddress each rationale in turn.\n B.\n The government urges us to hold that a plain reading of the statute\ndemonstrates that Congress intended § 1227(a)(2)(C) “to apply broadly to any\ntype of firearm offense.” Alternatively, the government asks us to accord\nChevron deference to the BIA’s view that the statute encompasses “firearms\noffenses of any type.” Although this expansive reading would certainly simplify\nour analysis, we decline the government’s invitation to rewrite the statutory\ntext.\n We review the BIA’s “legal conclusions de novo unless a conclusion\nembodies the Board’s interpretation of an ambiguous provision of a statute\nthat it administers.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). In\nthe latter situation, a precedential decision by the BIA “is entitled to the\ndeference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense\nCouncil, 467 U.S. 837 (1984).” Ali v. Lynch, 814 F.3d 306, 309 (5th Cir. 2016)\n(cleaned up). “If Congress has explicitly left a gap for the agency to fill, there\n 6\n\f Case: 17-60236 Document: 00515080419 Page: 7 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\nis an express delegation of authority to the agency to elucidate a specific\nprovision of the statute by regulation.” Orellana-Monson v. Holder, 685 F.3d\n511, 517 (5th Cir. 2012) (quoting Chevron, 467 U.S. at 843–44). Before\naccording an agency Chevron deference, however, the “court must determine\nfirst whether Congress has directly spoken to the question at issue.” Id. “If so,\nthe court, as well as the agency, must give effect to the unambiguously\nexpressed intent of Congress.” Id.\n The BIA’s decision in this case is published and precedential, and thus\neligible for Chevron deference. See Flores-Abarca, 26 I & N Dec. 922. But\nneither the BIA nor the government on appeal identify any ambiguity in the\nfirearms offense provision. The BIA instead relied on its “plain reading of the\nstatute.” Id. at 923. “Chevron deference must be reflective, not reflexive.”\nForrest Gen. Hosp. v. Azar, 926 F.3d 221, 228 (5th Cir. 2019). Absent statutory\nambiguity, the government may not invoke Chevron to shield agency reasoning\nfrom judicial scrutiny. Id.; Orellana-Monson, 685 F.3d at 517.\n The text of § 1227(a)(2)(C) is neither vague nor unclear. Rather, it\nunambiguously renders a large number of firearms convictions grounds for\ndeportation. The provision applies to any alien, including legal permanent\nresidents, convicted of “purchasing, selling, offering for sale, exchanging,\nusing, owning, possessing, or carrying . . . a firearm or destructive device,” or\n“of attempting or conspiring” to commit any of these offenses. 8 U.S.C.\n§ 1227(a)(2)(C). Contrary to the government’s position, however, the statute\ndoes not state that “any type of firearm offense” is a basis for deportation. Nor\ndoes the statute on its face reach “the entire panoply of firearms offenses.’”\nFlores-Abarca, 26 I & N Dec. at 923 (quotation omitted). If that were Congress’s\nintent, it could easily have said so. The same statute, for example, renders\ndeportable any alien convicted of violating “any law or regulation of a State,\nthe United States, or a foreign country relating to a controlled substance (as\n 7\n\f Case: 17-60236 Document: 00515080419 Page: 8 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\ndefined in section 802 of Title 21),” with a narrow exception for personal\nmarijuana possession. 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).\n Congress could have used the same language to render deportable any\nalien convicted of violating any law “relating to” a firearm. Instead, Congress\nchose to enumerate a list of offenses. See Dep’t of Homeland Security v.\nMacLean, 135 S. Ct. 913, 919 (2015) (explaining that “Congress generally acts\nintentionally when it uses particular language in one section of a statute but\nomits it in another”). Reflecting that choice, the provision is titled “Certain\nfirearm offenses.” See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)\n(explaining that while “headings are not commanding, they supply cues” as to\nthe intended scope of a statute).\n Notably, despite the expansive language of the controlled substance\nprovision, the Supreme Court has declined to hold that Congress intended to\ndeport every alien convicted of a drug offense. In Mellouli v. Lynch, the\ngovernment argued that “aliens who commit drug crimes in States whose drug\nschedules substantially overlap the federal schedules are removable, for state\nstatutes that criminalize hundreds of federally controlled drugs and a handful\nof similar substances, are laws relating to federally controlled substances.” 135\nS. Ct. 1980, 1989 (2015) (quotation omitted). The Court rejected this\nconstruction of § 1227(a)(2)(B)(i), explaining that “[t]his sweeping\ninterpretation departs so sharply from the statute’s text and history that it\ncannot be considered a permissible reading.” Id. at 1990. The Court also\nrefused to adopt the BIA’s view that the statute covers all drug paraphernalia\nconvictions on the grounds that drug paraphernalia statutes relate to “the drug\ntrade in general.” Id. at 1988–89. The Court instead held that, “to trigger\nremoval under § 1227(a)(2)(B)(i), the Government must connect an element of\nthe alien’s conviction to a drug ‘defined in [§ 802].’” Id. at 1991.\n\n\n 8\n\f Case: 17-60236 Document: 00515080419 Page: 9 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\n The same logic applies here. A firearm conviction cannot trigger\ndeportation or ineligibility for cancellation of removal under § 1227(a)(2)(C)\nunless it fits within one of the statutorily enumerated offenses. This\nconstruction is consistent with our prior applications of this statute, as well as\nthat of other circuits. See Segovia-Rivas v. Lynch, 643 F. App’x 367, 369 (5th\nCir. 2016) (holding that a conviction for “Attempted Deadly Conduct—\nDischarge of a Firearm” is categorically an offense covered by § 1227(a)(2)(C)\nbecause “[d]ischarging a firearm clearly involves use of a firearm”) (emphasis\nadded); Aybar-Alejo v. INS, 230 F.3d 487, 488–89 (1st Cir. 2000) (explaining\nthat a conviction for firearm possession under Rhode Island law is not broader\nthan possession under federal law); Lopez-Amaro v. INS, 25 F.3d 986, 989–90\n(11th Cir. 1994) (holding that “first degree murder with a pistol” qualifies as\n“using a firearm in violation of any law”).\n The government contends that several other circuits have interpreted\n§ 1227(a)(2)(C) more expansively to “embrace the entire panoply of firearms\noffenses.” Valerio-Ochoa, 241 F.3d at 1095; see also Kuhali v. Reno, 266 F.3d\n93, 103 (2d Cir. 2001); Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999). The cases\ncited do include some broad language regarding the scope of the firearms\nprovision. But our sister circuits took care to locate the petitioner’s particular\nconviction within one of the enumerated offenses. See Valerio-Ochoa, 241 F.3d\nat 1095–96 (explaining that a conviction for “willfully discharg[ing] a firearm”\nclearly “qualifies as ‘using’ a firearm under 8 U.S.C. § 1227(a)(2)(C)”); Kuhali,\n266 F.3d at 105 (finding that exporting firearms without a license involves\n“possessing” a firearm because “the power to send or take a commodity out of\nthe country necessarily implies—because of the exercise of dominion or\ncontrol—at least constructive possession”); Hall, 167 F.3d at 856 (holding that\na conviction for making false statements in connection with the acquisition of\na firearm was a conviction for “purchasing or attempting to purchase” a firearm\n 9\n\f Case: 17-60236 Document: 00515080419 Page: 10 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\nunder § 1227(a)(2)(C) because the petitioner “participated in and enabled an\nunlawful purchase of a firearm”). These cases do not stand for the proposition\nthat either the BIA or the courts are free to disregard the statute’s list of\nenumerated offenses.\n Despite its own broad language, the BIA similarly went on to consider\nwhether Flores Abarca’s firearm transportation offense is a conviction for\n“possessing” a firearm under § 1227(a)(2)(C). See Flores-Abarca, 26 I & N Dec.\nat 923. We now review that determination.\n C.\n Flores Abarca is ineligible for cancellation of removal if he was “convicted\nunder any law of . . . possessing . . . a firearm or destructive device.” 8 U.S.C.\n§ 1227(a)(2)(C). The BIA held that Flores Abarca “necessarily had constructive\n‘possession’ of the firearm” when he “knowingly and willfully transported” it in\nhis vehicle, and “conclude[d] that the crime of transporting a loaded firearm\nunder Oklahoma law is categorically a firearms offense under the Act.” Flores-\nAbarca, 26 I&N Dec. at 923–24. Our analysis of federal and Oklahoma law\ncompels a different conclusion.\n Like the BIA, we must analyze Flores Abarca’s conviction under the\ncategorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 192 (2013);\nSegovia-Rivas, 643 F. App’x at 369. “Because Congress predicated deportation\non convictions, not conduct, the approach looks to the statutory definition of\nthe offense of conviction, not to the particulars of an alien’s behavior.” Mellouli,\n135 S. Ct. at 1986 (quotation omitted). “[A] state offense is a categorical match\nwith a generic federal offense only if a conviction of the state offense\nnecessarily involved facts equating to the generic federal offense.” Moncrieffe,\n569 U.S. at 190 (cleaned up). “[W]e are to look to the conviction itself as our\nstarting place, not to what might have or could have been charged.” Carachuri-\nRosendo v. Holder, 560 U.S. 563, 576 (2010). In the context of a guilty plea, a\n 10\n\f Case: 17-60236 Document: 00515080419 Page: 11 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\nconviction is a categorical match “only if the defendant ‘necessarily admitted\n[the] elements of the generic offense.’” Descamps v. United States, 570 U.S. 254,\n262 (2013) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).\n Because we find that § 1227(a)(2)(C) “is unambiguous according to its\nplain language with respect to the question presented,” we review the BIA’s\nlegal conclusions de novo. Miresles-Zuniga v. Holder, 743 F.3d 110, 112 (5th\nCir. 2014). We also review de novo the BIA’s interpretation of Flores Abarca’s\nOklahoma offense, as “[d]etermining a particular federal or state crime’s\nelements lies beyond the scope of the BIA’s delegated power or accumulated\nexpertise.” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002); see also\nSarmientos v. Holder, 742 F.3d 624, 627 (5th Cir. 2014) (“[N]o deference is\nafforded in reviewing the BIA’s interpretation of state criminal law.”).\n We first outline the elements of the generic federal offense of unlawful\nfirearm possession. Under federal law, “possession” includes constructive\npossession. See Henderson v. United States, 135 S. Ct. 1780, 1784 (2015); see\nalso Aybar-Alejo, 230 F.3d at 488–89 (collecting cases). “Actual possession\nexists when a person has direct physical control over a thing,” whereas\n“[c]onstructive possession is established when a person, though lacking such\nphysical custody, still has the power and intent to exercise control over the\nobject.” Henderson, 135 S. Ct. at 1784. Yet mere possession of a firearm is not\na criminal offense. 2 See District of Columbia v. Heller, 554 U.S. 570, 636 (2008).\n“Assuming compliance with ordinary licensing requirements, the possession of\na gun can be entirely innocent.” Rehaif v. United States, 139 S. Ct. 2191, 2197\n(2019). The plain meaning of “possessing . . . a firearm . . . in violation of any\n\n\n\n\n 2 Although Congress has restricted the rights of unlawfully present aliens to\npossess firearms, the offenses listed in § 1227(a)(2)(C) apply to any alien, including legal\npermanent residents. See, e.g., Valerio-Ochoa, 241 F.3d at 1094.\n 11\n\f Case: 17-60236 Document: 00515080419 Page: 12 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\nlaw” under § 1227(a)(2)(C) therefore requires that the possession be in some\nrespect unlawful.\n The parties agree that the elements of Flores Abarca’s Oklahoma offense\nare: (1) knowingly; (2) willfully; (3) transporting; (4) a specified firearm; (5)\nthat is loaded; (6) in the interior/(locked exterior compartment)/trunk; (7) of a\nmotor vehicle; (8) on a public highway or roadway. See Okla. Unif. Jury Instr.\nCR 6-37A; see also Flores-Abarca, 26 I & N Dec. at 923. These elements do not\ninclude possession, much less unlawful possession. 3 On its face, the statute is\ntherefore not a categorical match to the generic federal offense of unlawful\nfirearm possession. See Moncrieffe, 569 U.S. at 190.\n To resist this conclusion, the government argues that Flores Abarca’s act\nof transporting a loaded firearm necessarily encompassed the possession or\nconstructive possession of a firearm. The parties have not briefed the issue of\nwhether an element of possession is sufficient to transform a conviction for a\ndifferent firearms offense into a conviction for possessing a firearm within the\nmeaning of § 1227(a)(2)(C). We have some doubts about this assumption. 4 Even\naccepting the government’s framing of the issue, however, it is not the case\nthat the Oklahoma offense of transporting a loaded firearm requires that the\ndefendant actually or constructively possess a firearm.\n\n\n\n\n 3 Oklahoma law recognizes separate offenses of unlawful firearm possession.\nSee, e.g., OKLA. STAT. tit. 21 § 1280.1 (possession of a firearm on school property); § 1283\n(possession of a firearm by a convicted felon). A conviction for one of these offenses does\nrequire proof of possession. See Okla. Unif. Jury Instr. CR 6-37 (outlining the elements of\n“unlawful possession of a firearm” as (1) knowing; (2) willful; (3) possession of/having under\none’s immediate control; (4) a specified firearm; and (5) the specific ground for unlawfulness).\n 4 We note that construing a conviction for “possessing” a firearm under\n§ 1227(a)(2)(C) to include firearm convictions involving lawful possession plus an illegal act\nmight render superfluous many of the other enumerated offenses, including “using,” and\n“carrying” a firearm. See Bailey v. United States, 516 U.S. 137, 146 (1995) (adopting a limited\nreading of “use” of a firearm to avoid creating redundancy with the term “carry”).\n 12\n\f Case: 17-60236 Document: 00515080419 Page: 13 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\n The term “transport” does not necessarily imply possession. The driver\nof a vehicle can transport passengers and their possessions without having the\n“power and intent to exercise control over” every object in the vehicle.\nHenderson, 135 S. Ct. at 1784. As we have been clear, “dominion over the\nvehicle . . . alone cannot establish constructive possession of a weapon found in\nthe vehicle, particularly in the face of evidence that strongly suggests that\nsomebody else exercised dominion and control over the weapon.” United States\nv. Wright, 24 F.3d 732, 735 (5th Cir. 1994); see also United States v. Melancon,\n662 F.3d 708, 713 (5th Cir. 2011) (“Where two people jointly occupy a space,\ndominion over the space is not enough by itself to establish constructive\npossession.”). Although knowledge of a firearm’s presence may be evidence of\npossession, knowing transportation does not conclusively establish\nconstructive possession as a matter of law. See Wright, 24 F.3d at 735\n(explaining that “whether constructive possession exists is not a scientific\ninquiry” and requires “a common sense, fact-specific approach”); United States\nv. Crain, 33 F.3d 480, 486–87 (5th Cir. 1994) (finding insufficient evidence that\ndefendant driver exercised constructive possession over drugs found in the\nvehicle).\n Oklahoma’s criminal prohibition against transporting loaded firearms in\nvehicles clearly extends to firearms possessed by passengers. At the time of\nFlores Abarca’s offense, the relevant statute read as follows:\n Except as otherwise provided by . . . another provision of law\n of this state, it shall be unlawful to transport a loaded pistol, rifle,\n or shotgun in any landborne motor vehicle over a public highway\n or roadway. However, a rifle or shotgun may be transported when\n clip or magazine loaded and not chamber loaded when transported\n in an exterior locked compartment of the vehicle or trunk of the\n vehicle.\n\n Any person convicted of a violation of this section shall be\n punished as provided in Section 1289.15 of this title.\n 13\n\f Case: 17-60236 Document: 00515080419 Page: 14 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\n\n\n Any person who is the operator of a vehicle or is a passenger\n in any vehicle wherein another person who is licensed pursuant to\n the Oklahoma Self-Defense Act, Sections 1 through 25 of this act,\n to carry a concealed handgun and is carrying a concealed handgun\n or has concealed the handgun in such vehicle, shall not be deemed\n in violation of the provisions of this section provided the licensee\n is in or near the vehicle.\n\nOKLA. STAT. tit. 21 § 1289.13 (2003).\n The statute’s final paragraph protects a driver from liability if his\npassenger has a concealed carry license. But a driver would have no such safe\nharbor if he knowingly gave a ride to an armed passenger who lacked a\nconcealed carry license. Even in cases where a defendant does have possession\nof a firearm as a factual matter, Oklahoma is never required to prove\npossession or constructive possession to obtain a conviction under this statute.\nFlores Abarca thus did not “necessarily admit[] the elements of the generic\noffense” of unlawful firearm possession by pleading guilty to this Oklahoma\ntransportation offense. Descamps, 570 U.S. at 262 (quotation omitted).\n The BIA’s contrary conclusion relied on a statement in United States v.\nBass, that “virtually all transportations, whether interstate or intrastate,\ninvolve an accompanying possession or receipt.” 404 U.S. 336, 340 (1971);\nFlores-Abarca, 26 I & N Dec. at 924. This factual observation regarding the\nfrequent overlap between transportation and possession offenses does not alter\nour analysis. The question presented in Bass was whether the federal\nprohibition on felons possessing, receiving, or transporting firearms requires\nproof of a connection to interstate commerce in every case. 404 U.S. at 339. The\nCourt held that “the phrase ‘in commerce or affecting commerce’ is part of all\nthree offenses” rather than modifying only the transport offense. Id. at 347.\nThe Supreme Court did not hold that the prohibition against felons\ntransporting a firearm is redundant of the prohibition against possession, nor\n 14\n\f Case: 17-60236 Document: 00515080419 Page: 15 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\nthat all federal transportation offenses require proof of possession. 5 Such\nholdings would have been consequential for federal criminal law, increasing\nthe government’s burden of proof in transportation prosecutions and\nintroducing redundancy in the federal criminal code. See, e.g., 18 U.S.C.\n§ 922(g), (h)(1), (k). But that was not the issue presented in Bass, and it is not\nthe issue the Court decided.\n Importantly, the Supreme Court’s later decision in Muscarello v. United\nStates, 524 U.S. 125 (1998), makes clear that transportation offenses remain\ndistinct from possession offenses. The Court in Muscarello held that the phrase\n“carries a firearm” in 18 U.S.C. § 924(c)(1) “applies to a person who knowingly\npossesses and conveys firearms in a vehicle, including in the locked glove\ncompartment or trunk of a car, which the person accompanies.” Id. at 126–27.\nIn a dissenting opinion, Justice Ginsburg argued that this definition better\ndescribes the term “transport” than the term “carry.” Id. at 146–48. 6 She noted\nthat other federal statutes use the term “transport” rather than “carry” to\n“describe[e] when and how a person may travel in a vehicle that contains his\nfirearms.” Id. at 146–47 (citing 18 U.S.C §§ 925(a)(2)(B) and 926A). A majority\nof the Court disagreed, explaining that its “definition does not equate ‘carry’\nand ‘transport.’” Id. at 134. “‘Carry’ implies personal agency and some degree\n\n\n\n 5 We were not aided by the government’s briefing on this point, which incorrectly\nattributed language from Malilia v. Holder, 632 F.3d 598, 604 (9th Cir. 2011) to Bass itself.\nThis inaccurate citation was inquired into, but not corrected, at oral argument. We should\nnot need to remind the government that, although we are bound by the precedent of the\nSupreme Court, we are not bound by another circuit’s interpretation of that precedent. In\nany event, we do not find support in Bass for the proposition that “establishing that a firearm\ntraveled interstate necessarily requires some element of possession.” Malilia, 632 F.3d at\n604. We similarly part ways with the Second Circuit’s interpretation of Bass to imply an\nelement of possession in transportation offenses. See Kuhali, 266 F.3d at 105.\n 6 The Eleventh Circuit expressed a similar view in a case predating Muscarello.\nSee United States v. Richards, 967 F.2d 1189, 1195 (8th Cir. 1992) (construing “the ordinary\nmeaning of the term ‘transport’ . . . as involving an element of possession and an element of\nmovement”).\n 15\n\f Case: 17-60236 Document: 00515080419 Page: 16 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\nof possession, whereas ‘transport’ does not have such a limited connotation and,\nin addition, implies the movement of goods in bulk over great distances.” Id.\n(emphasis added).\n This distinction is fully consistent with our construction of the Oklahoma\nstatute at issue in this case. Although carrying a firearm requires “some degree\nof possession,” transporting a firearm does not. Id. The government attempts\nto distinguish Muscarello by arguing that the Supreme Court understood\n“transport” to refer only to the “movement of goods in bulk,” whereas Flores\nAbarca’s Oklahoma transportation offense is more akin to “carrying.” Id. This\nargument is unavailing. The Supreme Court discussed several statutes that\napply the term “transport” to single firearms. See id. at 134–36; see also 18\nU.S.C § 924(b) (imposing criminal penalties on someone who “transports . . . a\nfirearm” with intent to commit a felony). Notably, the statute most central to\nthe disagreement between the majority and the dissent, 18 U.S.C. § 926A, uses\nthe term “transport” in precisely the same context as the Oklahoma statute at\nissue here. See id. (providing that individuals are “entitled to transport a\nfirearm for any lawful purpose,” so long as “during such transportation the\nfirearm is unloaded” and not “directly accessible from the passenger\ncompartment of such transporting vehicle”). The Court specifically addressed\n§ 926A and reiterated its conclusion that “the word ‘transport’ is broader than\nthe word ‘carry.’” Muscarello, 524 U.S. at 135. We have no basis to conclude\nthat the term “transport” has a different meaning under Oklahoma law than\nunder federal law. 7\n\n\n\n 7 The government represented at oral argument that its briefing and the BIA’s\nopinion had relied on Oklahoma caselaw interpreting transportation to require an element\nof constructive possession. As the government commendably acknowledged in a post-\nargument letter to the court, this representation was mistaken. The government’s letter\nbelatedly points us to a decision from the Oklahoma Court of Criminal Appeals, Allen v. State,\n871 P.2d 79 (Okla. Crim. App. 1994), as support for its position. We emphasize that “[t]he\n 16\n\f Case: 17-60236 Document: 00515080419 Page: 17 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\n We acknowledge that our analysis is in tension with the outcome reached\nby the Eighth Circuit in Awad v. Gonzales, 494 F.3d 723 (8th Cir. 2007). Awad,\na legal permanent resident and “a sport hunter lawfully hunting,” was cited\nfor transporting a loaded hunting rifle in his vehicle. Id. at 724. The BIA held\nthat this misdemeanor game and fish law violation rendered Awad deportable\nunder § 1227(a)(2)(C). Id. at 724–25. Awad petitioned for review, arguing that\nhis hunting rifle fell within an exception to the federal definition of a firearm.\nId. at 725. The court rejected this argument and affirmed. Id. at 726–27. The\nissue of whether § 1227(a)(2)(C) encompasses transportation offenses was\napparently not raised before the Eighth Circuit, and the court did not squarely\naddress it. Instead, the court deferred to the BIA without examining the\nspecific offenses enumerated in § 1227(a)(2)(C) or identifying any ambiguity in\nthe statutory language. Id. at 725. We therefore do not find Awad persuasive\nas to the question presented in this appeal.\n In sum, we hold that Flores Abarca’s misdemeanor conviction for\nunlawfully transporting a loaded firearm in a motor vehicle does not include\nunlawful possession as a necessary element and does not categorically match\nan offense listed under 8 U.S.C. § 1227(a)(2)(C).\n\n\n\n\nproper time to closely examine the record and develop legal defenses is before the completion\nof briefing,” not after oral argument. United States v. Arellano-Banuelos, 912 F.3d 862, 865\nn.2 (5th Cir. 2019). Even if the government’s new argument were properly before us, it would\nnot affect our conclusion. The defendant in Allen was charged with “carrying a loaded\nfirearm.” 871 P.2d at 102. The Oklahoma Court of Criminal Appeals reversed this conviction,\nexplaining that simple possession of a firearm is not a crime. Id. at 103. To constitute a crime,\nthe “carrying” must be unlawful in some additional way, such as “carrying a loaded firearm\nin a vehicle” or “carrying any firearm after conviction of a felony.” Id. The Oklahoma court\ndid not, however, hold that “carrying” a firearm is the only means to commit the offense of\nunlawful transportation of a firearm in a motor vehicle. Rather, its decision is consistent with\nthe proposition that “‘transport’ is a broader category that includes ‘carry’ but also\nencompasses other activity.” Muscarello, 524 U.S. at 135.\n 17\n\f Case: 17-60236 Document: 00515080419 Page: 18 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\n D.\n Finally, we address the BIA’s view that omitting firearm transportation\noffenses from the scope of § 1227(a)(2)(C) is “illogical” and inconsistent with\nlegislative history. Flores-Abarca, 26 I&N Dec. at 924. The BIA observes that,\nin the original version of the statute, “only the crimes of ‘possessing or carrying’\na firearm were a basis for deportation.” Id. “Subsequent legislation expanded\nthe deportable offenses to the current extensive list of crimes, as well as\nattempts and conspiracies to commit them.” Id. This history, however, can be\nread in multiple ways. On the one hand, Congress may have wished to expand\nthe reach of § 1227(a)(2)(C) to cover all firearms offenses, and simply neglected\nto include the term “transporting” when amending the statute. Such an\noversight would be somewhat surprising, as federal criminal law extensively\nregulates the transportation of firearms. See, e.g., 18 U.S.C. § 922(a)(1)–(5), (i),\n(n), § 924(b). On the other hand, Congress may have made a deliberate choice\nto add some firearms offenses but not others. Regardless, “[w]e cannot replace\nthe actual text with speculation as to Congress’ intent.” Magwood v. Patterson,\n561 U.S. 320, 334 (2010).\n Nor can we substitute either the BIA’s policy views or our own judgment\nfor that of Congress. See Rodriguez v. United States, 480 U.S. 522, 525–26\n(1987). Congress clearly intended to render deportable most aliens convicted of\ngun crimes, but it chose to effectuate this goal by specifying a list of offenses.\n“Legislation is, after all, the art of compromise, the limitations expressed in\nstatutory terms often the price of passage, and no statute yet known pursues\nits stated purpose at all costs.” Henson v. Santander Consumer USA Inc., 137\nS. Ct. 1718, 1725 (2017) (cleaned up). We must therefore “presume that a\nlegislature says in a statute what it means and means in a statute what it says\nthere.” Connecticut National Bank v. Germain, 503 U.S. 249, 253–54 (1992).\n\n\n 18\n\f Case: 17-60236 Document: 00515080419 Page: 19 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\n “[W]hen the statute’s language is plain, the sole function of the courts—\nat least where the disposition required by the text is not absurd—is to enforce\nit according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters\nBank, N.A., 530 U.S. 1, 6 (2000) (cleaned up). Here, a plain reading of the\nstatute produces no absurd results. The BIA maintains that it would be\n“illogical to hold that unlawful possession of a loaded firearm would fall within\nthe scope of [§ 1227(a)(2)(C)] but that unlawfully transporting the same\nweapon would not.” Flores-Abarca, 26 I&N Dec. at 924. We disagree. As\npreviously emphasized, firearms are not inherently illicit. An individual can\ncommit a transportation offense even if transporting a legally-owned firearm\nfrom one lawful location to another, for an entirely lawful purpose. See, e.g.,\nAwad, 494 F.3d at 724 (noting that Awad was “a sport hunter lawfully hunting”\nwhen he was cited for transporting a loaded hunting rifle). Moreover, mere\ntransportation lacks the elements of unlawful possession or use that can make\nfirearm offenses particularly dangerous. See, e.g., Muscarello, 524 U.S. at 135–\n36 (noting that Congress “impose[d] a less strict sentencing regime” on firearm\ntransport offenses under 18 U.S.C. § 924(b) than firearm carrying offenses\nunder § 924(c)).\n It is thus rational for Congress to treat unlawful firearm transportation\ndifferently from unlawful possession. We also note that § 1227(a)(2)(C) is not\nthe sole removal provision applicable to firearms offenses. Congress has\nseparately designated certain serious firearm transportation offenses as\naggravated felonies, including transporting a firearm with the intent to\ncommit a felony. See 8 U.S.C. § 1101(43)(E)(ii); see also 18 U.S.C. § 922(g)(1)–\n(5); § 922(n); § 924(b). An alien convicted of one of these offenses is deportable\nunder § 1227(a)(2)(A)(iii), notwithstanding our construction of § 1227(a)(2)(C).\nThe statutory scheme as a whole does not create any illogical gaps in\nimmigration enforcement.\n 19\n\f Case: 17-60236 Document: 00515080419 Page: 20 Date Filed: 08/16/2019\n\n\n\n No. 17-60236\n IV.\n Flores Abarca’s Oklahoma firearm transportation conviction is not an\noffense under 8 U.S.C. § 1227(a)(2)(C) and does not render him statutorily\nineligible for cancellation of removal. In light of this holding, we need not reach\nthe question of whether the BIA abused its discretion in denying Flores\nAbarca’s motions for reconsideration and remand.\n We GRANT the petition for review, VACATE the decision of the BIA,\nand REMAND for further proceedings not inconsistent with this opinion.\n\n\n\n\n 20\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Rogelio Flores-Abarca v. William Barr, U. S. Atty\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-60236 Document: 00515080419 Page: 1 Date Filed: 08/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 17-60236\\n FILED\\n August 16, 2019\\n Lyle W. Cayce\\nROGELIO FLORES-ABARCA, Clerk\\n\\n Petitioner\\n\\nv.\\n\\nWILLIAM P. BARR, U. S. ATTORNEY GENERAL,\\n\\n Respondent\\n\\n\\n\\n\\n Petitions for Review of an Order of the\\n Board of Immigration Appeals\\n\\n\\nBefore DAVIS, HIGGINSON, and WILLETT, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n Rogelio Flores Abarca seeks review of a Board of Immigration Appeals\\n(BIA) decision holding that he is statutorily ineligible for cancellation of\\nremoval because of a 2004 firearm transportation conviction. We first conclude\\nthat Flores Abarca failed to exhaust his challenge to the immigration court’s\\njurisdiction based on alleged defects in his Notice to Appear. On the merits, we\\nhold that the Oklahoma misdemeanor of transporting a loaded firearm in a\\nmotor vehicle is not one of the firearms offenses listed under 8 U.S.C.\\n§ 1227(a)(2)(C). Accordingly, this conviction does not disqualify Flores Abarca\\nfrom seeking cancellation of removal. We grant the petition for review, vacate\\nthe BIA’s order, and remand for further proceedings.\\n\\f Case: 17-60236 Document: 00515080419 Page: 2 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n I.\\n Flores Abarca is a native and citizen of Mexico. He entered the United\\nStates unlawfully in 1988, when he was five years old. He currently lives in\\nOklahoma and has four U.S. citizen children. In January 2004, Flores Abarca\\npleaded guilty to the Oklahoma misdemeanor offense of transporting a loaded\\nfirearm in a motor vehicle. See OKLA. STAT. tit. 21 § 1289.13. In May 2015,\\nthe Department of Homeland Security initiated removal proceedings against\\nFlores Abarca, alleging that he was present in the United States without\\nhaving been admitted or paroled. The Notice to Appear was personally served\\non Flores Abarca and instructed him to appear before an immigration judge in\\nDallas at a date and time to be set. Flores Abarca later received a notice of\\nhearing with a specific date and time, and he personally appeared in Dallas\\nimmigration court on October 19, 2015. At this hearing, Flores Abarca\\nacknowledged receipt of the Notice to Appear, conceded his removability, and\\nstated that he wished to seek cancellation of removal.\\n Cancellation of removal is a form of relief available to certain otherwise\\nremovable aliens. See 8 U.S.C. § 1229b. To be eligible for this relief, a\\nnonpermanent resident such as Flores Abarca must (1) have been continuously\\nphysically present in the United States for at least 10 years; (2) demonstrate\\ngood moral character during this period; (3) not be convicted of an offense\\nunder 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3); and (4) “establish[]\\nthat removal would result in exceptional and extremely unusual hardship to\\nthe alien’s spouse, parent, or child, who is a citizen of the United States or an\\nalien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1).\\n Flores Abarca requested cancellation of removal based on hardship to his\\nfour young children and his ailing lawful permanent resident parents. The\\nimmigration judge asked for the government’s views regarding Flores Abarca’s\\neligibility in light of his firearm transportation conviction. The government\\n 2\\n\\f Case: 17-60236 Document: 00515080419 Page: 3 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nstated that it believed Flores Abarca was eligible for cancellation of removal,\\nand that it did not believe that his firearm transportation conviction fell under\\nthe statute’s firearms provision. The immigration judge nonetheless expressed\\nconcern about this conviction and ordered further briefing on the issue. In its\\nbrief, the government revised its original position and argued that Flores\\nAbarca is ineligible for cancellation of removal because of his firearm\\ntransportation conviction.\\n\\n After considering the parties’ briefs, the immigration judge held that\\nFlores Abarca’s conviction for transporting a loaded firearm is a firearms\\noffense described under 8 U.S.C. § 1227(a)(2)(C) and renders him ineligible for\\ncancellation of removal as a matter of law. Flores Abarca appealed his order of\\nremoval to the BIA. On March 3, 2017, the BIA affirmed the immigration court\\nin a published and precedential opinion. See Matter of Flores-Abarca, 26 I & N\\nDec. 922 (B.I.A. 2017). Flores Abarca timely moved for reconsideration. While\\nhis motion for reconsideration was pending, Flores Abarca filed a motion to\\nremand to the immigration court to permit him to apply for adjustment of\\nstatus. The BIA denied both motions. Flores Abarca now petitions for review\\nof the BIA’s decisions.\\n II.\\n For the first time on appeal, Flores Abarca seeks to challenge alleged\\ndefects in his Notice to Appear (NTA). This court generally lacks jurisdiction\\nto consider issues that were not first presented to the BIA. See Omari v. Holder,\\n562 F.3d 314, 318–19 (5th Cir. 2009); see also 8 U.S.C. § 1252(d) (“A court may\\nreview a final order of removal only if – (1) the alien has exhausted all\\nadministrative remedies available to the alien as of right”). Flores Abarca\\nnonetheless contends that he can raise this issue at any time because defects\\nin the NTA undermine the immigration court’s subject matter jurisdiction.\\nThis argument is foreclosed by our precedent. See Pierre-Paul v. Barr, 930 F.3d\\n 3\\n\\f Case: 17-60236 Document: 00515080419 Page: 4 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n684, 693 (5th Cir. 2019) (holding that 8 C.F.R. § 1003.14 is a non-jurisdictional\\nclaim processing rule, defects in which are waivable). Because Flores Abarca\\ndid not properly exhaust this issue, we lack jurisdiction to consider it. We\\ntherefore turn to the merits.\\n III.\\n The BIA held that Flores Abarca is ineligible for cancellation of removal\\nas a matter of law because “the crime of transporting a loaded firearm under\\nOklahoma law is categorically a firearms offense under” 8 U.S.C.\\n§ 1227(a)(2)(C). Flores-Abarca, 26 I & N Dec. at 924. Because the BIA reached\\nan independent legal conclusion on this question, “our review is confined to the\\nBIA’s analysis and reasoning.” Enrique-Gutierrez v. Holder, 612 F.3d 400, 407\\n(5th Cir. 2010). With limited exceptions, we may “only affirm the BIA on the\\nbasis of its stated rationale for ordering an alien removed from the United\\nStates.” Id. The sole issue before us is therefore the purely legal question of\\nwhether Flores Abarca’s Oklahoma firearm transportation conviction is\\ncategorically a disqualifying firearms offense under § 1227(a)(2)(C). We have\\njurisdiction to consider this legal issue. See 8 U.S.C. § 1252(a)(2)(D).\\n A.\\n We first review the relevant statutory framework. A nonpermanent\\nresident does not qualify for cancellation of removal if he has “been convicted\\nof an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)” of Title 8 of the\\nU.S. Code. 8 U.S.C. § 1229b(b)(1)(C). The specific provision at issue in this case\\nis § 1227(a)(2)(C), which renders deportable “[a]ny alien who at any time after\\nadmission is convicted” of certain firearms offenses. As a threshold matter,\\n\\n\\n\\n\\n 4\\n\\f Case: 17-60236 Document: 00515080419 Page: 5 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nFlores Abarca contends that § 1227(a)(2)(C) does not apply to him because he\\nwas never admitted to the United States. 1\\n This argument is foreclosed by our precedent. Flores Abarca was not\\ncharged with being removable under § 1227(a)(2)(C). This provision is relevant\\nto this case only because it is cross-referenced in the cancellation of removal\\nstatute. See § 1229b(b)(1)(C). We have held that this statutory cross-reference\\nsimply “identif[ies] the kinds of offenses that will make an alien ineligible for\\ncancellation of removal.” Nino v. Holder, 690 F.3d 691, 697 (5th Cir. 2012)\\n(emphasis added). “For purposes of that ineligibility, it does not matter when\\nthe offense occurred in relation to the alien’s admission.” Id. at 697–98; see also\\nAleman v. Holder, 541 F. App’x 457, 459 (5th Cir. 2013) (“Nino v. Holder held\\nthe plain language of § 1229b(b)(1)(C) unambiguously refers to the elements of\\nthe offenses set forth in the three statutes and does not refer to any aspects of\\nimmigration law.”).\\n Flores Abarca is therefore ineligible for cancellation of removal if he was\\nconvicted of an offense listed in § 1227(a)(2)(C), regardless of whether he had\\nbeen admitted to the United States at the time of conviction. This provision\\nreads in full:\\n (C) Certain firearm offenses\\n\\n Any alien who at any time after admission is convicted under any\\n law of purchasing, selling, offering for sale, exchanging, using,\\n owning, possessing, or carrying, or of attempting or conspiring to\\n purchase, sell, offer for sale, exchange, use, own, possess, or carry,\\n any weapon, part, or accessory which is a firearm or destructive\\n device (as defined in section 921(a) of Title 18) in violation of any\\n law is deportable.\\n\\n\\n 1 We note that Flores Abarca failed to properly exhaust this issue before the BIA.\\nSee Omari, 562 F.3d at 319. Yet, as the government recognizes, exhaustion is not required\\nwhen the BIA has no power to grant the requested relief because of binding circuit precedent.\\nSee Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir. 2007). That is the case here.\\n 5\\n\\f Case: 17-60236 Document: 00515080419 Page: 6 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n8 U.S.C. § 1227(a)(2)(C).\\n The list of offenses in the statute does not include a conviction for\\n“transporting” a firearm in violation of any law.\\n The BIA reasoned, however, that “[a] plain reading of the statute makes\\n‘clear that Congress intended [it] to embrace the entire panoply of firearms\\noffenses.’” Flores-Abarca, 26 I & N Dec. at 923 (quoting Valerio-Ochoa v. INS,\\n241 F.3d 1092, 1095 (9th Cir. 2001)). The BIA further held that Flores Abarca\\n“necessarily had constructive ‘possession’ of the firearm for purposes of”\\n§ 1227(a)(2)(C) when he violated the Oklahoma firearm transportation statute.\\nId. Finally, the BIA opined that “it would be illogical to hold that unlawful\\npossession of a loaded firearm would fall within the scope of [§ 1227(a)(2)(C)]\\nbut that unlawfully transporting the same weapon would not.” Id. at 924. We\\naddress each rationale in turn.\\n B.\\n The government urges us to hold that a plain reading of the statute\\ndemonstrates that Congress intended § 1227(a)(2)(C) “to apply broadly to any\\ntype of firearm offense.” Alternatively, the government asks us to accord\\nChevron deference to the BIA’s view that the statute encompasses “firearms\\noffenses of any type.” Although this expansive reading would certainly simplify\\nour analysis, we decline the government’s invitation to rewrite the statutory\\ntext.\\n We review the BIA’s “legal conclusions de novo unless a conclusion\\nembodies the Board’s interpretation of an ambiguous provision of a statute\\nthat it administers.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). In\\nthe latter situation, a precedential decision by the BIA “is entitled to the\\ndeference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense\\nCouncil, 467 U.S. 837 (1984).” Ali v. Lynch, 814 F.3d 306, 309 (5th Cir. 2016)\\n(cleaned up). “If Congress has explicitly left a gap for the agency to fill, there\\n 6\\n\\f Case: 17-60236 Document: 00515080419 Page: 7 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nis an express delegation of authority to the agency to elucidate a specific\\nprovision of the statute by regulation.” Orellana-Monson v. Holder, 685 F.3d\\n511, 517 (5th Cir. 2012) (quoting Chevron, 467 U.S. at 843–44). Before\\naccording an agency Chevron deference, however, the “court must determine\\nfirst whether Congress has directly spoken to the question at issue.” Id. “If so,\\nthe court, as well as the agency, must give effect to the unambiguously\\nexpressed intent of Congress.” Id.\\n The BIA’s decision in this case is published and precedential, and thus\\neligible for Chevron deference. See Flores-Abarca, 26 I & N Dec. 922. But\\nneither the BIA nor the government on appeal identify any ambiguity in the\\nfirearms offense provision. The BIA instead relied on its “plain reading of the\\nstatute.” Id. at 923. “Chevron deference must be reflective, not reflexive.”\\nForrest Gen. Hosp. v. Azar, 926 F.3d 221, 228 (5th Cir. 2019). Absent statutory\\nambiguity, the government may not invoke Chevron to shield agency reasoning\\nfrom judicial scrutiny. Id.; Orellana-Monson, 685 F.3d at 517.\\n The text of § 1227(a)(2)(C) is neither vague nor unclear. Rather, it\\nunambiguously renders a large number of firearms convictions grounds for\\ndeportation. The provision applies to any alien, including legal permanent\\nresidents, convicted of “purchasing, selling, offering for sale, exchanging,\\nusing, owning, possessing, or carrying . . . a firearm or destructive device,” or\\n“of attempting or conspiring” to commit any of these offenses. 8 U.S.C.\\n§ 1227(a)(2)(C). Contrary to the government’s position, however, the statute\\ndoes not state that “any type of firearm offense” is a basis for deportation. Nor\\ndoes the statute on its face reach “the entire panoply of firearms offenses.’”\\nFlores-Abarca, 26 I & N Dec. at 923 (quotation omitted). If that were Congress’s\\nintent, it could easily have said so. The same statute, for example, renders\\ndeportable any alien convicted of violating “any law or regulation of a State,\\nthe United States, or a foreign country relating to a controlled substance (as\\n 7\\n\\f Case: 17-60236 Document: 00515080419 Page: 8 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\ndefined in section 802 of Title 21),” with a narrow exception for personal\\nmarijuana possession. 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).\\n Congress could have used the same language to render deportable any\\nalien convicted of violating any law “relating to” a firearm. Instead, Congress\\nchose to enumerate a list of offenses. See Dep’t of Homeland Security v.\\nMacLean, 135 S. Ct. 913, 919 (2015) (explaining that “Congress generally acts\\nintentionally when it uses particular language in one section of a statute but\\nomits it in another”). Reflecting that choice, the provision is titled “Certain\\nfirearm offenses.” See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)\\n(explaining that while “headings are not commanding, they supply cues” as to\\nthe intended scope of a statute).\\n Notably, despite the expansive language of the controlled substance\\nprovision, the Supreme Court has declined to hold that Congress intended to\\ndeport every alien convicted of a drug offense. In Mellouli v. Lynch, the\\ngovernment argued that “aliens who commit drug crimes in States whose drug\\nschedules substantially overlap the federal schedules are removable, for state\\nstatutes that criminalize hundreds of federally controlled drugs and a handful\\nof similar substances, are laws relating to federally controlled substances.” 135\\nS. Ct. 1980, 1989 (2015) (quotation omitted). The Court rejected this\\nconstruction of § 1227(a)(2)(B)(i), explaining that “[t]his sweeping\\ninterpretation departs so sharply from the statute’s text and history that it\\ncannot be considered a permissible reading.” Id. at 1990. The Court also\\nrefused to adopt the BIA’s view that the statute covers all drug paraphernalia\\nconvictions on the grounds that drug paraphernalia statutes relate to “the drug\\ntrade in general.” Id. at 1988–89. The Court instead held that, “to trigger\\nremoval under § 1227(a)(2)(B)(i), the Government must connect an element of\\nthe alien’s conviction to a drug ‘defined in [§ 802].’” Id. at 1991.\\n\\n\\n 8\\n\\f Case: 17-60236 Document: 00515080419 Page: 9 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n The same logic applies here. A firearm conviction cannot trigger\\ndeportation or ineligibility for cancellation of removal under § 1227(a)(2)(C)\\nunless it fits within one of the statutorily enumerated offenses. This\\nconstruction is consistent with our prior applications of this statute, as well as\\nthat of other circuits. See Segovia-Rivas v. Lynch, 643 F. App’x 367, 369 (5th\\nCir. 2016) (holding that a conviction for “Attempted Deadly Conduct—\\nDischarge of a Firearm” is categorically an offense covered by § 1227(a)(2)(C)\\nbecause “[d]ischarging a firearm clearly involves use of a firearm”) (emphasis\\nadded); Aybar-Alejo v. INS, 230 F.3d 487, 488–89 (1st Cir. 2000) (explaining\\nthat a conviction for firearm possession under Rhode Island law is not broader\\nthan possession under federal law); Lopez-Amaro v. INS, 25 F.3d 986, 989–90\\n(11th Cir. 1994) (holding that “first degree murder with a pistol” qualifies as\\n“using a firearm in violation of any law”).\\n The government contends that several other circuits have interpreted\\n§ 1227(a)(2)(C) more expansively to “embrace the entire panoply of firearms\\noffenses.” Valerio-Ochoa, 241 F.3d at 1095; see also Kuhali v. Reno, 266 F.3d\\n93, 103 (2d Cir. 2001); Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999). The cases\\ncited do include some broad language regarding the scope of the firearms\\nprovision. But our sister circuits took care to locate the petitioner’s particular\\nconviction within one of the enumerated offenses. See Valerio-Ochoa, 241 F.3d\\nat 1095–96 (explaining that a conviction for “willfully discharg[ing] a firearm”\\nclearly “qualifies as ‘using’ a firearm under 8 U.S.C. § 1227(a)(2)(C)”); Kuhali,\\n266 F.3d at 105 (finding that exporting firearms without a license involves\\n“possessing” a firearm because “the power to send or take a commodity out of\\nthe country necessarily implies—because of the exercise of dominion or\\ncontrol—at least constructive possession”); Hall, 167 F.3d at 856 (holding that\\na conviction for making false statements in connection with the acquisition of\\na firearm was a conviction for “purchasing or attempting to purchase” a firearm\\n 9\\n\\f Case: 17-60236 Document: 00515080419 Page: 10 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nunder § 1227(a)(2)(C) because the petitioner “participated in and enabled an\\nunlawful purchase of a firearm”). These cases do not stand for the proposition\\nthat either the BIA or the courts are free to disregard the statute’s list of\\nenumerated offenses.\\n Despite its own broad language, the BIA similarly went on to consider\\nwhether Flores Abarca’s firearm transportation offense is a conviction for\\n“possessing” a firearm under § 1227(a)(2)(C). See Flores-Abarca, 26 I & N Dec.\\nat 923. We now review that determination.\\n C.\\n Flores Abarca is ineligible for cancellation of removal if he was “convicted\\nunder any law of . . . possessing . . . a firearm or destructive device.” 8 U.S.C.\\n§ 1227(a)(2)(C). The BIA held that Flores Abarca “necessarily had constructive\\n‘possession’ of the firearm” when he “knowingly and willfully transported” it in\\nhis vehicle, and “conclude[d] that the crime of transporting a loaded firearm\\nunder Oklahoma law is categorically a firearms offense under the Act.” Flores-\\nAbarca, 26 I&N Dec. at 923–24. Our analysis of federal and Oklahoma law\\ncompels a different conclusion.\\n Like the BIA, we must analyze Flores Abarca’s conviction under the\\ncategorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 192 (2013);\\nSegovia-Rivas, 643 F. App’x at 369. “Because Congress predicated deportation\\non convictions, not conduct, the approach looks to the statutory definition of\\nthe offense of conviction, not to the particulars of an alien’s behavior.” Mellouli,\\n135 S. Ct. at 1986 (quotation omitted). “[A] state offense is a categorical match\\nwith a generic federal offense only if a conviction of the state offense\\nnecessarily involved facts equating to the generic federal offense.” Moncrieffe,\\n569 U.S. at 190 (cleaned up). “[W]e are to look to the conviction itself as our\\nstarting place, not to what might have or could have been charged.” Carachuri-\\nRosendo v. Holder, 560 U.S. 563, 576 (2010). In the context of a guilty plea, a\\n 10\\n\\f Case: 17-60236 Document: 00515080419 Page: 11 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nconviction is a categorical match “only if the defendant ‘necessarily admitted\\n[the] elements of the generic offense.’” Descamps v. United States, 570 U.S. 254,\\n262 (2013) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).\\n Because we find that § 1227(a)(2)(C) “is unambiguous according to its\\nplain language with respect to the question presented,” we review the BIA’s\\nlegal conclusions de novo. Miresles-Zuniga v. Holder, 743 F.3d 110, 112 (5th\\nCir. 2014). We also review de novo the BIA’s interpretation of Flores Abarca’s\\nOklahoma offense, as “[d]etermining a particular federal or state crime’s\\nelements lies beyond the scope of the BIA’s delegated power or accumulated\\nexpertise.” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002); see also\\nSarmientos v. Holder, 742 F.3d 624, 627 (5th Cir. 2014) (“[N]o deference is\\nafforded in reviewing the BIA’s interpretation of state criminal law.”).\\n We first outline the elements of the generic federal offense of unlawful\\nfirearm possession. Under federal law, “possession” includes constructive\\npossession. See Henderson v. United States, 135 S. Ct. 1780, 1784 (2015); see\\nalso Aybar-Alejo, 230 F.3d at 488–89 (collecting cases). “Actual possession\\nexists when a person has direct physical control over a thing,” whereas\\n“[c]onstructive possession is established when a person, though lacking such\\nphysical custody, still has the power and intent to exercise control over the\\nobject.” Henderson, 135 S. Ct. at 1784. Yet mere possession of a firearm is not\\na criminal offense. 2 See District of Columbia v. Heller, 554 U.S. 570, 636 (2008).\\n“Assuming compliance with ordinary licensing requirements, the possession of\\na gun can be entirely innocent.” Rehaif v. United States, 139 S. Ct. 2191, 2197\\n(2019). The plain meaning of “possessing . . . a firearm . . . in violation of any\\n\\n\\n\\n\\n 2 Although Congress has restricted the rights of unlawfully present aliens to\\npossess firearms, the offenses listed in § 1227(a)(2)(C) apply to any alien, including legal\\npermanent residents. See, e.g., Valerio-Ochoa, 241 F.3d at 1094.\\n 11\\n\\f Case: 17-60236 Document: 00515080419 Page: 12 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nlaw” under § 1227(a)(2)(C) therefore requires that the possession be in some\\nrespect unlawful.\\n The parties agree that the elements of Flores Abarca’s Oklahoma offense\\nare: (1) knowingly; (2) willfully; (3) transporting; (4) a specified firearm; (5)\\nthat is loaded; (6) in the interior/(locked exterior compartment)/trunk; (7) of a\\nmotor vehicle; (8) on a public highway or roadway. See Okla. Unif. Jury Instr.\\nCR 6-37A; see also Flores-Abarca, 26 I & N Dec. at 923. These elements do not\\ninclude possession, much less unlawful possession. 3 On its face, the statute is\\ntherefore not a categorical match to the generic federal offense of unlawful\\nfirearm possession. See Moncrieffe, 569 U.S. at 190.\\n To resist this conclusion, the government argues that Flores Abarca’s act\\nof transporting a loaded firearm necessarily encompassed the possession or\\nconstructive possession of a firearm. The parties have not briefed the issue of\\nwhether an element of possession is sufficient to transform a conviction for a\\ndifferent firearms offense into a conviction for possessing a firearm within the\\nmeaning of § 1227(a)(2)(C). We have some doubts about this assumption. 4 Even\\naccepting the government’s framing of the issue, however, it is not the case\\nthat the Oklahoma offense of transporting a loaded firearm requires that the\\ndefendant actually or constructively possess a firearm.\\n\\n\\n\\n\\n 3 Oklahoma law recognizes separate offenses of unlawful firearm possession.\\nSee, e.g., OKLA. STAT. tit. 21 § 1280.1 (possession of a firearm on school property); § 1283\\n(possession of a firearm by a convicted felon). A conviction for one of these offenses does\\nrequire proof of possession. See Okla. Unif. Jury Instr. CR 6-37 (outlining the elements of\\n“unlawful possession of a firearm” as (1) knowing; (2) willful; (3) possession of/having under\\none’s immediate control; (4) a specified firearm; and (5) the specific ground for unlawfulness).\\n 4 We note that construing a conviction for “possessing” a firearm under\\n§ 1227(a)(2)(C) to include firearm convictions involving lawful possession plus an illegal act\\nmight render superfluous many of the other enumerated offenses, including “using,” and\\n“carrying” a firearm. See Bailey v. United States, 516 U.S. 137, 146 (1995) (adopting a limited\\nreading of “use” of a firearm to avoid creating redundancy with the term “carry”).\\n 12\\n\\f Case: 17-60236 Document: 00515080419 Page: 13 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n The term “transport” does not necessarily imply possession. The driver\\nof a vehicle can transport passengers and their possessions without having the\\n“power and intent to exercise control over” every object in the vehicle.\\nHenderson, 135 S. Ct. at 1784. As we have been clear, “dominion over the\\nvehicle . . . alone cannot establish constructive possession of a weapon found in\\nthe vehicle, particularly in the face of evidence that strongly suggests that\\nsomebody else exercised dominion and control over the weapon.” United States\\nv. Wright, 24 F.3d 732, 735 (5th Cir. 1994); see also United States v. Melancon,\\n662 F.3d 708, 713 (5th Cir. 2011) (“Where two people jointly occupy a space,\\ndominion over the space is not enough by itself to establish constructive\\npossession.”). Although knowledge of a firearm’s presence may be evidence of\\npossession, knowing transportation does not conclusively establish\\nconstructive possession as a matter of law. See Wright, 24 F.3d at 735\\n(explaining that “whether constructive possession exists is not a scientific\\ninquiry” and requires “a common sense, fact-specific approach”); United States\\nv. Crain, 33 F.3d 480, 486–87 (5th Cir. 1994) (finding insufficient evidence that\\ndefendant driver exercised constructive possession over drugs found in the\\nvehicle).\\n Oklahoma’s criminal prohibition against transporting loaded firearms in\\nvehicles clearly extends to firearms possessed by passengers. At the time of\\nFlores Abarca’s offense, the relevant statute read as follows:\\n Except as otherwise provided by . . . another provision of law\\n of this state, it shall be unlawful to transport a loaded pistol, rifle,\\n or shotgun in any landborne motor vehicle over a public highway\\n or roadway. However, a rifle or shotgun may be transported when\\n clip or magazine loaded and not chamber loaded when transported\\n in an exterior locked compartment of the vehicle or trunk of the\\n vehicle.\\n\\n Any person convicted of a violation of this section shall be\\n punished as provided in Section 1289.15 of this title.\\n 13\\n\\f Case: 17-60236 Document: 00515080419 Page: 14 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n\\n\\n Any person who is the operator of a vehicle or is a passenger\\n in any vehicle wherein another person who is licensed pursuant to\\n the Oklahoma Self-Defense Act, Sections 1 through 25 of this act,\\n to carry a concealed handgun and is carrying a concealed handgun\\n or has concealed the handgun in such vehicle, shall not be deemed\\n in violation of the provisions of this section provided the licensee\\n is in or near the vehicle.\\n\\nOKLA. STAT. tit. 21 § 1289.13 (2003).\\n The statute’s final paragraph protects a driver from liability if his\\npassenger has a concealed carry license. But a driver would have no such safe\\nharbor if he knowingly gave a ride to an armed passenger who lacked a\\nconcealed carry license. Even in cases where a defendant does have possession\\nof a firearm as a factual matter, Oklahoma is never required to prove\\npossession or constructive possession to obtain a conviction under this statute.\\nFlores Abarca thus did not “necessarily admit[] the elements of the generic\\noffense” of unlawful firearm possession by pleading guilty to this Oklahoma\\ntransportation offense. Descamps, 570 U.S. at 262 (quotation omitted).\\n The BIA’s contrary conclusion relied on a statement in United States v.\\nBass, that “virtually all transportations, whether interstate or intrastate,\\ninvolve an accompanying possession or receipt.” 404 U.S. 336, 340 (1971);\\nFlores-Abarca, 26 I & N Dec. at 924. This factual observation regarding the\\nfrequent overlap between transportation and possession offenses does not alter\\nour analysis. The question presented in Bass was whether the federal\\nprohibition on felons possessing, receiving, or transporting firearms requires\\nproof of a connection to interstate commerce in every case. 404 U.S. at 339. The\\nCourt held that “the phrase ‘in commerce or affecting commerce’ is part of all\\nthree offenses” rather than modifying only the transport offense. Id. at 347.\\nThe Supreme Court did not hold that the prohibition against felons\\ntransporting a firearm is redundant of the prohibition against possession, nor\\n 14\\n\\f Case: 17-60236 Document: 00515080419 Page: 15 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nthat all federal transportation offenses require proof of possession. 5 Such\\nholdings would have been consequential for federal criminal law, increasing\\nthe government’s burden of proof in transportation prosecutions and\\nintroducing redundancy in the federal criminal code. See, e.g., 18 U.S.C.\\n§ 922(g), (h)(1), (k). But that was not the issue presented in Bass, and it is not\\nthe issue the Court decided.\\n Importantly, the Supreme Court’s later decision in Muscarello v. United\\nStates, 524 U.S. 125 (1998), makes clear that transportation offenses remain\\ndistinct from possession offenses. The Court in Muscarello held that the phrase\\n“carries a firearm” in 18 U.S.C. § 924(c)(1) “applies to a person who knowingly\\npossesses and conveys firearms in a vehicle, including in the locked glove\\ncompartment or trunk of a car, which the person accompanies.” Id. at 126–27.\\nIn a dissenting opinion, Justice Ginsburg argued that this definition better\\ndescribes the term “transport” than the term “carry.” Id. at 146–48. 6 She noted\\nthat other federal statutes use the term “transport” rather than “carry” to\\n“describe[e] when and how a person may travel in a vehicle that contains his\\nfirearms.” Id. at 146–47 (citing 18 U.S.C §§ 925(a)(2)(B) and 926A). A majority\\nof the Court disagreed, explaining that its “definition does not equate ‘carry’\\nand ‘transport.’” Id. at 134. “‘Carry’ implies personal agency and some degree\\n\\n\\n\\n 5 We were not aided by the government’s briefing on this point, which incorrectly\\nattributed language from Malilia v. Holder, 632 F.3d 598, 604 (9th Cir. 2011) to Bass itself.\\nThis inaccurate citation was inquired into, but not corrected, at oral argument. We should\\nnot need to remind the government that, although we are bound by the precedent of the\\nSupreme Court, we are not bound by another circuit’s interpretation of that precedent. In\\nany event, we do not find support in Bass for the proposition that “establishing that a firearm\\ntraveled interstate necessarily requires some element of possession.” Malilia, 632 F.3d at\\n604. We similarly part ways with the Second Circuit’s interpretation of Bass to imply an\\nelement of possession in transportation offenses. See Kuhali, 266 F.3d at 105.\\n 6 The Eleventh Circuit expressed a similar view in a case predating Muscarello.\\nSee United States v. Richards, 967 F.2d 1189, 1195 (8th Cir. 1992) (construing “the ordinary\\nmeaning of the term ‘transport’ . . . as involving an element of possession and an element of\\nmovement”).\\n 15\\n\\f Case: 17-60236 Document: 00515080419 Page: 16 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\nof possession, whereas ‘transport’ does not have such a limited connotation and,\\nin addition, implies the movement of goods in bulk over great distances.” Id.\\n(emphasis added).\\n This distinction is fully consistent with our construction of the Oklahoma\\nstatute at issue in this case. Although carrying a firearm requires “some degree\\nof possession,” transporting a firearm does not. Id. The government attempts\\nto distinguish Muscarello by arguing that the Supreme Court understood\\n“transport” to refer only to the “movement of goods in bulk,” whereas Flores\\nAbarca’s Oklahoma transportation offense is more akin to “carrying.” Id. This\\nargument is unavailing. The Supreme Court discussed several statutes that\\napply the term “transport” to single firearms. See id. at 134–36; see also 18\\nU.S.C § 924(b) (imposing criminal penalties on someone who “transports . . . a\\nfirearm” with intent to commit a felony). Notably, the statute most central to\\nthe disagreement between the majority and the dissent, 18 U.S.C. § 926A, uses\\nthe term “transport” in precisely the same context as the Oklahoma statute at\\nissue here. See id. (providing that individuals are “entitled to transport a\\nfirearm for any lawful purpose,” so long as “during such transportation the\\nfirearm is unloaded” and not “directly accessible from the passenger\\ncompartment of such transporting vehicle”). The Court specifically addressed\\n§ 926A and reiterated its conclusion that “the word ‘transport’ is broader than\\nthe word ‘carry.’” Muscarello, 524 U.S. at 135. We have no basis to conclude\\nthat the term “transport” has a different meaning under Oklahoma law than\\nunder federal law. 7\\n\\n\\n\\n 7 The government represented at oral argument that its briefing and the BIA’s\\nopinion had relied on Oklahoma caselaw interpreting transportation to require an element\\nof constructive possession. As the government commendably acknowledged in a post-\\nargument letter to the court, this representation was mistaken. The government’s letter\\nbelatedly points us to a decision from the Oklahoma Court of Criminal Appeals, Allen v. State,\\n871 P.2d 79 (Okla. Crim. App. 1994), as support for its position. We emphasize that “[t]he\\n 16\\n\\f Case: 17-60236 Document: 00515080419 Page: 17 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n We acknowledge that our analysis is in tension with the outcome reached\\nby the Eighth Circuit in Awad v. Gonzales, 494 F.3d 723 (8th Cir. 2007). Awad,\\na legal permanent resident and “a sport hunter lawfully hunting,” was cited\\nfor transporting a loaded hunting rifle in his vehicle. Id. at 724. The BIA held\\nthat this misdemeanor game and fish law violation rendered Awad deportable\\nunder § 1227(a)(2)(C). Id. at 724–25. Awad petitioned for review, arguing that\\nhis hunting rifle fell within an exception to the federal definition of a firearm.\\nId. at 725. The court rejected this argument and affirmed. Id. at 726–27. The\\nissue of whether § 1227(a)(2)(C) encompasses transportation offenses was\\napparently not raised before the Eighth Circuit, and the court did not squarely\\naddress it. Instead, the court deferred to the BIA without examining the\\nspecific offenses enumerated in § 1227(a)(2)(C) or identifying any ambiguity in\\nthe statutory language. Id. at 725. We therefore do not find Awad persuasive\\nas to the question presented in this appeal.\\n In sum, we hold that Flores Abarca’s misdemeanor conviction for\\nunlawfully transporting a loaded firearm in a motor vehicle does not include\\nunlawful possession as a necessary element and does not categorically match\\nan offense listed under 8 U.S.C. § 1227(a)(2)(C).\\n\\n\\n\\n\\nproper time to closely examine the record and develop legal defenses is before the completion\\nof briefing,” not after oral argument. United States v. Arellano-Banuelos, 912 F.3d 862, 865\\nn.2 (5th Cir. 2019). Even if the government’s new argument were properly before us, it would\\nnot affect our conclusion. The defendant in Allen was charged with “carrying a loaded\\nfirearm.” 871 P.2d at 102. The Oklahoma Court of Criminal Appeals reversed this conviction,\\nexplaining that simple possession of a firearm is not a crime. Id. at 103. To constitute a crime,\\nthe “carrying” must be unlawful in some additional way, such as “carrying a loaded firearm\\nin a vehicle” or “carrying any firearm after conviction of a felony.” Id. The Oklahoma court\\ndid not, however, hold that “carrying” a firearm is the only means to commit the offense of\\nunlawful transportation of a firearm in a motor vehicle. Rather, its decision is consistent with\\nthe proposition that “‘transport’ is a broader category that includes ‘carry’ but also\\nencompasses other activity.” Muscarello, 524 U.S. at 135.\\n 17\\n\\f Case: 17-60236 Document: 00515080419 Page: 18 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n D.\\n Finally, we address the BIA’s view that omitting firearm transportation\\noffenses from the scope of § 1227(a)(2)(C) is “illogical” and inconsistent with\\nlegislative history. Flores-Abarca, 26 I&N Dec. at 924. The BIA observes that,\\nin the original version of the statute, “only the crimes of ‘possessing or carrying’\\na firearm were a basis for deportation.” Id. “Subsequent legislation expanded\\nthe deportable offenses to the current extensive list of crimes, as well as\\nattempts and conspiracies to commit them.” Id. This history, however, can be\\nread in multiple ways. On the one hand, Congress may have wished to expand\\nthe reach of § 1227(a)(2)(C) to cover all firearms offenses, and simply neglected\\nto include the term “transporting” when amending the statute. Such an\\noversight would be somewhat surprising, as federal criminal law extensively\\nregulates the transportation of firearms. See, e.g., 18 U.S.C. § 922(a)(1)–(5), (i),\\n(n), § 924(b). On the other hand, Congress may have made a deliberate choice\\nto add some firearms offenses but not others. Regardless, “[w]e cannot replace\\nthe actual text with speculation as to Congress’ intent.” Magwood v. Patterson,\\n561 U.S. 320, 334 (2010).\\n Nor can we substitute either the BIA’s policy views or our own judgment\\nfor that of Congress. See Rodriguez v. United States, 480 U.S. 522, 525–26\\n(1987). Congress clearly intended to render deportable most aliens convicted of\\ngun crimes, but it chose to effectuate this goal by specifying a list of offenses.\\n“Legislation is, after all, the art of compromise, the limitations expressed in\\nstatutory terms often the price of passage, and no statute yet known pursues\\nits stated purpose at all costs.” Henson v. Santander Consumer USA Inc., 137\\nS. Ct. 1718, 1725 (2017) (cleaned up). We must therefore “presume that a\\nlegislature says in a statute what it means and means in a statute what it says\\nthere.” Connecticut National Bank v. Germain, 503 U.S. 249, 253–54 (1992).\\n\\n\\n 18\\n\\f Case: 17-60236 Document: 00515080419 Page: 19 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n “[W]hen the statute’s language is plain, the sole function of the courts—\\nat least where the disposition required by the text is not absurd—is to enforce\\nit according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters\\nBank, N.A., 530 U.S. 1, 6 (2000) (cleaned up). Here, a plain reading of the\\nstatute produces no absurd results. The BIA maintains that it would be\\n“illogical to hold that unlawful possession of a loaded firearm would fall within\\nthe scope of [§ 1227(a)(2)(C)] but that unlawfully transporting the same\\nweapon would not.” Flores-Abarca, 26 I&N Dec. at 924. We disagree. As\\npreviously emphasized, firearms are not inherently illicit. An individual can\\ncommit a transportation offense even if transporting a legally-owned firearm\\nfrom one lawful location to another, for an entirely lawful purpose. See, e.g.,\\nAwad, 494 F.3d at 724 (noting that Awad was “a sport hunter lawfully hunting”\\nwhen he was cited for transporting a loaded hunting rifle). Moreover, mere\\ntransportation lacks the elements of unlawful possession or use that can make\\nfirearm offenses particularly dangerous. See, e.g., Muscarello, 524 U.S. at 135–\\n36 (noting that Congress “impose[d] a less strict sentencing regime” on firearm\\ntransport offenses under 18 U.S.C. § 924(b) than firearm carrying offenses\\nunder § 924(c)).\\n It is thus rational for Congress to treat unlawful firearm transportation\\ndifferently from unlawful possession. We also note that § 1227(a)(2)(C) is not\\nthe sole removal provision applicable to firearms offenses. Congress has\\nseparately designated certain serious firearm transportation offenses as\\naggravated felonies, including transporting a firearm with the intent to\\ncommit a felony. See 8 U.S.C. § 1101(43)(E)(ii); see also 18 U.S.C. § 922(g)(1)–\\n(5); § 922(n); § 924(b). An alien convicted of one of these offenses is deportable\\nunder § 1227(a)(2)(A)(iii), notwithstanding our construction of § 1227(a)(2)(C).\\nThe statutory scheme as a whole does not create any illogical gaps in\\nimmigration enforcement.\\n 19\\n\\f Case: 17-60236 Document: 00515080419 Page: 20 Date Filed: 08/16/2019\\n\\n\\n\\n No. 17-60236\\n IV.\\n Flores Abarca’s Oklahoma firearm transportation conviction is not an\\noffense under 8 U.S.C. § 1227(a)(2)(C) and does not render him statutorily\\nineligible for cancellation of removal. In light of this holding, we need not reach\\nthe question of whether the BIA abused its discretion in denying Flores\\nAbarca’s motions for reconsideration and remand.\\n We GRANT the petition for review, VACATE the decision of the BIA,\\nand REMAND for further proceedings not inconsistent with this opinion.\\n\\n\\n\\n\\n 20\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3675,"cells":{"id":{"kind":"number","value":4649205,"string":"4,649,205"},"name":{"kind":"string","value":"Estella MARTINEZ, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Rogelio Martinez, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Jamal Saih, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Olivia Longoria; Rogelio Longoria, Plaintiffs - Appellants v. WALGREEN COMPANY, Defendant - Appellee"},"name_abbreviation":{"kind":"string","value":"Estella Martinez v. Walgreen Company"},"decision_date":{"kind":"string","value":"2019-08-16"},"docket_number":{"kind":"string","value":"18-40636"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Higginbotham, Jones, Costa\", \"parties\": \"\", \"opinions\": [{\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-40636 Document: 00515079849 Page: 1 Date Filed: 08/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 16, 2019\\n No. 18-40636\\n Lyle W. Cayce\\n Clerk\\nESTELLA MARTINEZ, Individually and as sole heirs of the estate of Claudia\\nMartinez, Deceased; ROGELIO MARTINEZ, Individually and as sole heirs of\\nthe estate of Claudia Martinez, Deceased; JAMAL SAIH, Individually and as\\nsole heirs of the estate of Claudia Martinez, Deceased; OLIVIA LONGORIA;\\nROGELIO LONGORIA,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nWALGREEN COMPANY,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n This case requires us to decide whether, under Texas law, a pharmacy\\nowes a duty of care to third parties injured on the road by a customer who was\\nnegligently given someone else’s prescription. Concluding that the Texas\\nSupreme Court would not recognize this tort duty, we affirm the district court’s\\ngrant of summary judgment to Walgreens.\\n\\f Case: 18-40636 Document: 00515079849 Page: 2 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\n I\\n Two sets of plaintiffs, Claudia Martinez’s next of kin and Olivia and\\nRogelio Longoria, allege that a Walgreens pharmacy negligently gave Elias\\nGamboa Mesa a medication prescribed for another patient rather than the one\\nassociated with his own prescription. Walgreens allegedly gave Gamboa\\nglyburide metformin, a medication used to treat diabetes—but which can cause\\nhypoglycemia, or low blood pressure, in non-diabetics. Symptoms include\\ncognitive impairment, behavioral changes, and psychomotor abnormalities.\\n The plaintiffs allege that ingesting the drug caused Gamboa to\\nexperience severe hypoglycemia and drive erratically on a road in McAllen,\\nTexas. First, he rear-ended the Longorias’ car. Then, failing to stop after the\\nfirst collision, he crossed the center lane and crashed head-on into Martinez’s\\ncar, fatally injuring her. Finally, Gamboa struck three other vehicles in an\\nintersection before his own vehicle burst into flames. After Gamboa died from\\nhis injuries, an autopsy revealed that he had detectable amounts of glyburide\\nmetformin in his system at the time of the accident.\\n Gamboa’s son sued Walgreens in Texas state court and Walgreens\\nremoved to federal court. The Martinez plaintiffs and the Longorias moved to\\nintervene; while the motion was pending, they filed this lawsuit in the same\\ncourt. Gamboa’s son and Walgreens ultimately settled, leaving only this\\nlawsuit between the injured third parties and Walgreens.\\n On Walgreens’s motion for summary judgment, the district court made\\nan Erie guess that under Texas law, a medical professional such as a\\npharmacist does not owe a duty of care to “unconnected” third parties like\\nMartinez and the Longorias. It also rejected the plaintiffs’ argument that\\nWalgreens was liable under a theory of negligence per se. Concluding that the\\nplaintiffs had no viable theory of liability, it granted Walgreens summary\\njudgment. The plaintiffs now urge us to reverse the district court’s\\n 2\\n\\f Case: 18-40636 Document: 00515079849 Page: 3 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\ndetermination that under Texas law, Walgreens did not owe them a duty of\\ncare—or, alternatively, to certify this issue to the Texas Supreme Court.\\n II\\n We review the district court’s grant of summary judgment de novo,\\n“viewing the evidence in the light most favorable to the non-moving [parties]\\nand drawing all reasonable inferences in the nonmovant[s’] favor.” 1 “The\\nmovant prevails by showing ‘that there is no genuine dispute as to any material\\nfact and the movant is entitled to judgment as a matter of law.’” 2\\n In a diversity case like this one, when no Texas Supreme Court case\\n“precisely” resolves the legal issue, we “must make an Erie guess and\\ndetermine as best we can what the Supreme Court of Texas would decide.” 3\\nThis requires us to use “the sources of law that the state’s highest court would\\nlook to, including intermediate state appellate court decisions, the general rule\\non the issue, decisions from other jurisdictions, and general policy concerns.” 4\\nUltimately, however, “it is not for us to adopt innovative theories of recovery\\nunder state law” without strong reason to believe that those theories would be\\nadopted if the Texas Supreme Court had the opportunity. 5\\n III\\n Texas law instructs that “[a] negligence cause of action has three\\nelements: 1) a legal duty; 2) breach of that duty; and 3) damages proximately\\nresulting from the breach.” 6 The district court stopped its analysis at the first\\nstep, concluding that Walgreens owed no legal duty to the plaintiffs.\\n\\n\\n\\n 1 E.g., Wease v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 992 (5th Cir. 2019).\\n 2 Id. (quoting Fed. R. Civ. P. 56(a)).\\n 3 Hays v. HCA Holdings, Inc., 838 F.3d 605, 611 (5th Cir. 2016) (quoting Harris Cty.\\n\\nv. MERSCORP Inc., 791 F.3d 545, 551 (5th Cir. 2015)).\\n 4 Id. (internal quotation marks and citation omitted).\\n 5 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018) (quoting Mayo v. Hyatt Corp.,\\n\\n898 F.2d 47, 49 (5th Cir. 1990)).\\n 6 Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).\\n\\n 3\\n\\f Case: 18-40636 Document: 00515079849 Page: 4 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\n The Texas Supreme Court has settled that “the existence of duty is a\\nquestion of law for the court to decide from the facts surrounding the\\noccurrence in question.” 7 “When a duty has not been recognized in particular\\ncircumstances, the question is whether one should be.” 8 We conclude that the\\ndistrict court did not err in declining to recognize a duty between Walgreens\\nand the plaintiffs in this case.\\n A\\n First, we consider whether the Texas Supreme Court has already spoken\\non the existence—or nonexistence—of a duty between a pharmacy and third\\nparties injured as the result of an allegedly mis-filled prescription. Walgreens\\nurges that this case can straightforwardly be resolved by caselaw holding that\\na healthcare provider owes no duty to third-party nonpatients for negligent\\ntreatment or misdiagnosis of patients. The Texas Supreme Court has\\nrepeatedly recognized that “[a]ny duty of reasonable care on [the part of the\\nhealthcare provider] to avoid such negligence originates solely through the\\nrelationship with, and flows only to, his patient.” 9 It has also stated that “there\\nis generally no relationship between [a] doctor and patient that would provide\\nthe type of control necessary to create a duty to third persons.” 10\\n\\n\\n\\n 7 Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017) (quoting Greater\\nHous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)).\\n 8 Id.\\n 9 Van Horn, 970 S.W.2d at 545 (holding that a treating physician did not owe a duty\\n\\nto hospital employees who were killed or injured when trying to subdue a violent patient);\\nsee also Thapar v. Zezulka, 994 S.W.2d 635, 636–38 (Tex. 1999) (holding that a psychiatrist\\nowed no duty to a third party for negligent misdiagnosis or treatment even where the patient\\nhad previously told the psychiatrist that he “[felt] like killing” the third party); Krishnan v.\\nSepulveda, 916 S.W.2d 478, 482 (Tex. 1995) (holding that a doctor owed no duty to a woman’s\\nhusband when it allegedly provided her with negligent prenatal care that caused her to\\nmiscarry); Bird v. W.C.W., 868 S.W.2d 767 (Tex.. 1994) (holding that a psychologist had no\\nduty to a third party not to negligently misdiagnose a child’s condition as stemming from the\\nthird party’s abuse).\\n 10 Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 35–36 (Tex. 2002) (emphasis added).\\n\\nIn Peavy, however, the Texas Supreme Court held that a medical provider did potentially\\n 4\\n\\f Case: 18-40636 Document: 00515079849 Page: 5 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\n Walgreens’s argument that this line of cases “definitively” resolves the\\nissue goes a step too far. The Texas Supreme Court has not yet addressed\\nwhether a pharmacy’s duty of care is limited to that pharmacy’s own patients.\\nIts negligent-treatment and negligent-misdiagnosis caselaw disfavors\\nimposing a duty between healthcare providers and third parties due in part to\\nwell-founded concerns about interfering with medical professionals’ judgment\\nand discretion. 11 Although pharmacists are treated as healthcare providers\\nunder Texas law, 12 the filling of an existing prescription arguably does not\\nrequire the same degree of judgment and discretion as an initial diagnosis or\\nplan for treatment. 13 We therefore are not convinced that the Texas Supreme\\nCourt has already squarely decided this issue in favor of Walgreens, and\\ncannot comfortably end our analysis here.\\n B\\n Acknowledging that the Texas Supreme Court has also not spoken in\\ntheir favor regarding this issue, the plaintiffs instead ask us to extrapolate a\\n\\n\\n\\n\\nhave a duty of care to third parties when it allegedly failed to control a patient who was under\\nan unusually high degree of court-mandated supervision. See id.\\n 11 The seminal case on the duty of a health-care professional to third parties, W.C.W.\\n\\nv. Bird, emphasized the need for mental health professionals to be “allowed to exercise their\\nprofessional judgment in diagnosing sexual abuse of a child without the judicial imposition\\nof a countervailing duty to third parties.” 868 S.W.2d at 769.\\n 12 See Tex. Civ. Prac. & Rem. § 74.001(a)(12)(A).\\n 13 Walgreens cites an unpublished intermediate appellate decision, Davis v. Eckerd\\n\\nHoldings II, Inc., extending the Texas Supreme Court’s negligent-treatment and negligent-\\nmisdiagnosis caselaw to pharmacists. No. 05-96-01413-CV, 1999 WL 605590 (Tex. App—\\nDallas, 1999, no pet.). That case addressed whether a pharmacist owed a tort duty to the\\nparents of an infant who suffered a drug overdose after having been given syrup that was\\none thousand times more powerful than the prescribed medication. See id. at *1. The Court\\nof Appeals concluded that because pharmacists qualify as healthcare providers under Texas\\nlaw, the Texas Supreme Court’s negligent-treatment and negligent-misdiagnosis cases were\\n“instructive” in concluding that the pharmacist owed the parents no duty of care separate\\nfrom a duty to their infant child. Id. at *3. Standing alone, Davis does not allow us to conclude\\neither that the Texas Supreme Court has definitively established that pharmacies owe no\\ntort duties to third parties or that it would do so if given the opportunity.\\n 5\\n\\f Case: 18-40636 Document: 00515079849 Page: 6 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nduty from other areas of Texas tort law. 14 They rely heavily on Gooden v. Tips,\\nan intermediate appellate case holding that where a doctor had prescribed a\\npatient Quaaludes without warning her about the risks of driving under their\\ninfluence, the doctor owed a duty of care to a third party who was struck by the\\npatient. 15 It is unlikely that Gooden reflects the Texas Supreme Court’s view\\non a healthcare provider’s duty to third parties to warn patients of the risk of\\nprescribed medication. It was decided before the line of cases addressing\\nhealthcare providers’ duties to third parties, and the Texas Supreme Court\\nsubsequently rejected a duty on the part of a doctor to warn an epileptic patient\\nabout the risk of driving. 16 A concurring opinion in that case faulted the\\nmajority for failing to make clearer that Gooden is not good law in light of the\\ncases limiting health care professionals’ duty to their own patients. 17\\n Regardless, to the extent that Gooden represents how the Texas\\nSupreme Court would resolve the question of whether a health care\\nprofessional has a duty to third parties to warn a patient of the risks of\\nprescribed medication, Gooden’s framework does not apply here. The plaintiffs\\n\\n\\n\\n 14 The plaintiffs also argue that Walgreens has liability under the Texas Wrongful\\nDeath Act, Tex. Civ. Prac. & Rem. Code § 71.002 et seq., and that the district court’s decision\\ndenied them their right to open courts under the Texas Constitution, Tex. Const. Art. I, § 13.\\nThese arguments fail because they are predicated on the assumption that Walgreens owed\\nthe plaintiffs—in the case of the Wrongful Death Act, only Martinez—a duty of care. They\\ncannot support liability absent an accompanying duty. See Tex. Civ. Prac. & Rem. Code §\\n71.003(a) (providing a cause of action under the Wrongful Death Act “only if the individual\\ninjured would have been entitled to bring an action for the injury if the individual had lived”);\\nBurlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 360 (5th Cir. 2005)\\n(explaining that the “open courts” provision does not create new rights, but rather protects\\nthe ability to pursue remedies “for such wrongs as are recognized by the law of the land”\\n(citation omitted)).\\n 15 651 S.W.2d 364, 365–72 (Tex. App.—Tyler, 1983, no writ); see also Flynn v. Hous.\\n\\nEmergicare, Inc., 869 S.W.2d 403, 405–06 (Tex. App.—Houston [1st Dist.] 1993, writ denied)\\n(distinguishing Gooden as a case where a doctor had a duty to third parties because the doctor\\ngave the patient the medication that caused her impairment).\\n 16 See Praesel v. Johnson, 967 S.W.2d 391, 398 (Tex. 1998).\\n 17 See id. at 399 (Enoch, J., concurring).\\n\\n 6\\n\\f Case: 18-40636 Document: 00515079849 Page: 7 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\ndo not contend that the medication given to Gamboa was unaccompanied by\\nproper warnings and directions for its use. Nor do we think that the theory\\nunderlying Gooden maps neatly onto the facts of this case. As we will explain,\\nforeseeability is paramount to the duty analysis, and there are relevant\\ndifferences between failing to warn a patient of the risks of medication that the\\nhealthcare professional knows the patient will take, on the one hand, and\\ngiving a patient a bottle of prescription medication intended for someone else,\\non the other.\\n Taking a different tack, the plaintiffs also argue that tort liability here\\nis simply an analogue of “dram shop” liability under Texas law. El Chico Corp.\\nv. Poole held that an alcoholic beverage licensee had a duty of care to third\\nparties not to serve alcohol to a customer the licensee knew or should have\\nknown was intoxicated and who later injured others by driving under the\\ninfluence. 18 The Texas Supreme Court reasoned that because “[t]he risk and\\nlikelihood of injury from serving alcohol to an intoxicated person whom the\\nlicensee knows will probably drive a car is . . . readily foreseen,” a duty of care\\nowed by licensees to third parties is “merely the application of the general duty\\nto exercise reasonable care to avoid foreseeable injury to others.” 19 The\\nplaintiffs argue that where a pharmacy gives a customer a medication with the\\npotential to cause side effects similar to intoxication, it should bear a similar\\nduty to injured third parties.\\n The analogy to dram-shop liability fails for two reasons. First, one week\\nafter El Chico was decided, the Texas legislature enacted the Dram Shop Act\\nto supplant judicially created liability with a statutory remedy, limiting\\n\\n\\n\\n\\n 18 732 S.W.2d 306 (Tex. 1987).\\n 19 Id. at 311.\\n 7\\n\\f Case: 18-40636 Document: 00515079849 Page: 8 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nliability for alcoholic beverage providers in the process. 20 The legislature’s\\nresponse strongly suggests that creating liability between providers of\\npotentially dangerous substances and injured third parties involves delicate\\npolicy determinations. Unsurprisingly, “Texas courts have not expanded the\\nduty in El Chico to cover the sale of other potentially harmful products.” 21\\nSecond, and relatedly, this case presents different public policy considerations\\nfrom where a licensee provides alcohol to an already intoxicated person: the\\nsocial value of pharmacy work is higher than the social value of dram shops,\\nand the foreseeability of the harm that occurred in this case pales in\\ncomparison to the foreseeable harm caused by serving alcohol to intoxicated\\nbar patrons who will then drive. It does not follow that because the Texas\\nSupreme Court recognized a duty of care between a licensee and third parties\\nforeseeably injured by drunk driving—in a move promptly superseded by\\nstatute—it would recognize a duty between pharmacies and third parties\\ninjured as the result of mis-filled prescriptions.\\n C\\n This brings us to the core of the duty analysis under Texas law. When\\nthe Texas Supreme Court has neither established nor foreclosed the possibility\\nof a tort duty in “particular circumstances,” Texas courts ask whether such a\\nduty “should be” recognized. 22 This involves “social, economic, and political\\nquestions and their application to the facts at hand,” and involves weighing\\n“the risk, foreseeability, and likelihood of injury against the social utility of the\\n\\n\\n\\n\\n 20 See Tex. Alco. Bev. Code §§ 2.02–03 (granting a statutory cause of action against\\nalcoholic beverage providers and making it the exclusive remedy); Graff v. Beard, 858 S.W.2d\\n918, 919–20 (Tex. 1993) (explaining that “[t]he statutory duty established by the legislature\\nalso placed a less onerous burden on commercial providers and a correspondingly higher\\nburden of proof on injured parties than the common-law duty created by the court”).\\n 21 Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 179–80 (5th Cir. 2018).\\n 22 Pagayon, 536 S.W.3d at 503.\\n\\n 8\\n\\f Case: 18-40636 Document: 00515079849 Page: 9 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nactor’s conduct, the magnitude of the burden of guarding against the injury,\\nand the consequences of placing the burden on the defendant,” along with\\nconsidering “whether one party would generally have superior knowledge of\\nthe risk or a right to control the actor who caused the harm.” 23\\n We have little difficulty concluding that the Texas Supreme Court would\\nnot impose a tort duty between pharmacies and third parties of the type the\\nplaintiffs here advocate. The Texas Supreme Court has “described\\nforeseeability as the ‘foremost and dominant consideration’ in the duty\\nanalysis,” 24 and we agree with Walgreens that the harm caused to Martinez\\nand the Longorias was not a foreseeable consequence of Walgreens’s alleged\\nconduct. Most importantly, it was not sufficiently foreseeable that a pharmacy\\ncustomer would take the medication in a bottle intended for someone else,\\nnotwithstanding that the label listed someone else’s name and a different\\nmedication. 25 To be sure, the foreseeability inquiry does not require Walgreens\\nto have foreseen the precise harm to third parties that in fact resulted from\\ngiving Gamboa someone else’s prescription. 26 But where Texas courts have\\n\\n\\n\\n\\n 23 Id. (quoting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex.\\n2004)).\\n E.g., Peavy, 89 S.W.3d at 36.\\n 24\\n\\n It is also unclear that it was foreseeable that a customer who took someone else’s\\n 25\\n\\nprescription drug would experience the type of reaction that would impair his cognitive and\\nmotor skills while driving. The plaintiffs’ own summary judgment evidence indicates that\\nglyburide metformin does not necessarily cause hypoglycemia in non-diabetics, and that\\nGamboa’s age and impaired kidney function made him more susceptible to the condition as\\na result of taking the medication. This distinguishes this case from, for example, Gooden,\\nwhere the drug was likely to impair the ability to safely drive in anyone who took it. See\\nGooden, 651 S.W.2d at 369–70.\\n 26 See Austin v. Kroger, 864 F.3d 326, 333 (5th Cir. 2017) (per curiam) (“Texas courts\\n\\nhave consistently held that foreseeability turns on the existence of general danger, not\\nawareness of the exact sequence of events that produced the harm.” (internal quotation\\nmarks omitted)).\\n 9\\n\\f Case: 18-40636 Document: 00515079849 Page: 10 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nfound the risk of harm to a third party to have been foreseeable, the possibility\\nof harm was significantly less attenuated. 27\\n Foreseeability aside, the Texas legislature has shown itself to be both\\nwilling and able to undertake the public policy balancing inherent in extensive\\nregulation of pharmacies’ treatment of prescription drugs. For example, Texas\\nlaw allows pharmacies to dispense dangerous drugs—including any drug that\\nrequires a prescription, such as glyburide metformin—only to those with valid\\nprescriptions. 28 It sets forth extensive labeling requirements, including that\\nthe label be easily readable and include the name of the patient and the drug’s\\nbrand name or generic name. 29 Further, it imposes criminal liability on\\npharmacists who dispense dangerous drugs without prescriptions or fail to\\ncomply with labeling requirements, 30 and imposes civil penalties on those who\\nunlawfully engage in the practice of pharmacy. 31 That is, the legislature has\\ndetailed other protections against the risk, and a tort duty to third parties\\nwould be in tension with this extensive regulatory scheme. 32 This bolsters our\\n\\n\\n 27 See Peavy, 89 S.W.3d at 36–39 (rejecting summary judgment due to genuine issues\\nof material fact over whether it was foreseeable to a care facility for the mentally disabled\\nthat a resident with an extensive history of violence would pose a threat to strangers when\\nallowed outside the facility); Bird, 868 S.W.2d at 769 (recognizing the foreseeable harm to a\\nparent who was accused of sexual abuse due to allegedly negligent mental health treatment\\nprovided to the child, though ultimately concluding that the mental health professional still\\ndid not owe a duty of care to the parent); El Chico, 732 S.W.2d at 313–14 (emphasizing the\\nforeseeability of harm specifically where an alcoholic beverage purveyor sold alcohol to a\\ncustomer who was already intoxicated and who the purveyor knew or should have known was\\nlikely to drive after leaving the establishment); Gooden, 651 S.W.2d at 368 (recognizing a\\nforeseeable risk of harm where a doctor prescribed a patient Quaaludes and could have\\nexpected that she would take those drugs before driving without a warning to the contrary).\\n 28 See Tex. Health & Safety Code § 483.021(a); Tex. Occ. Code §§ 562.056, 562.112.\\n 29 See Tex. Occ. Code § 562.006.\\n 30 See Tex. Health & Safety Code § 483.042.\\n 31 See Tex. Occ. Code § 566.101.\\n 32 See Ritchie v. Rupe, 443 S.W.3d 856, 891 (Tex. 2014) (declining to create a new cause\\n\\nof action, in part because the legislature had already created a “detailed and extensive”\\nstatutory scheme, “reflecting legislative policy judgments about when the government should\\nstep in to impose rights and obligations on the parties and when the parties should be free to\\ndictate their own rights and obligations vis-à-vis each other”).\\n 10\\n\\f Case: 18-40636 Document: 00515079849 Page: 11 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nconclusion that the Texas Supreme Court would not recognize a duty of care\\nowed by Walgreens to the plaintiffs in this case.\\n The plaintiffs suggest that this degree of legislative involvement actually\\ncuts in their favor, in particular the statutory prohibitions on distributing\\nprescription drugs to someone without a prescription. They disclaim reliance\\non statute to create tort liability where none would otherwise exist, arguing\\nsolely that statutory prohibitions help to more clearly define the standard of\\ncare Walgreens owed. But their reliance on statute begs the question of\\nwhether Walgreens owed a preexisting duty of care to the plaintiffs as non-\\npatient third parties.\\n To the extent that Texas courts are willing to infer a new tort duty from\\nlegislation—a rare, but not unheard-of, phenomenon 33—we disagree that the\\nstatutory prohibitions the plaintiffs cite point to a duty here. The Texas\\nSupreme Court has settled that “[t]he threshold questions in every negligence\\nper se case are whether the plaintiff belongs to the class that the statute was\\nintended to protect and whether the plaintiff’s injury is of a type that the\\nstatute was designed to prevent.” 34 We do not doubt that legislative regulation\\nof pharmacies was intended to protect “the public health, safety, and\\nwelfare.” 35 The plaintiffs argue that as members of the public, they are\\ntherefore within the class of persons that the legislature aimed to protect by\\nprohibiting the distribution of a prescription drug to someone without a\\nprescription for that drug. Nothing suggests, however, that this statutory\\n\\n\\n\\n\\n 33 See Perry v. S.N., 973 S.W.2d 301, 305–08 (Tex. 1998) (observing that the Texas\\nSupreme Court has “created a new duty by applying negligence per se on only one occasion”);\\nsee also Allen, 907 F.3d at 180 (after declining to recognize a common-law duty under Texas\\nlaw, observing that “[t]ellingly, Texas courts rarely imply a civil tort duty from a criminal\\nstatute”).\\n 34 Perry, 973 S.W.2d at 305.\\n 35 See Tex. Occ. Code § 551.002.\\n\\n 11\\n\\f Case: 18-40636 Document: 00515079849 Page: 12 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nprohibition intended to prevent the type of harm that the plaintiffs\\nexperienced—rather than preventing harm to the members of the public who\\ningest potentially dangerous prescription drugs and suffer harm as a result. 36\\nWe therefore cannot infer from Walgreens’s alleged violation of its statutory\\nobligations that its tort duty of care extends to the third-party plaintiffs in this\\ncase.\\n ***\\n In sum, looking to the factors the Texas Supreme Court would consider—\\nin particular, the foreseeability of the harm, the presence of other protections,\\nand the danger of interference with the legislature’s balancing of public\\npolicies—we conclude that the Texas Supreme Court would not recognize a\\nduty between a pharmacy and third parties injured as a result of a customer\\ntaking the incorrect prescription. Mindful that we should not “lightly abdicate\\nour mandate to decide issues of state law when sitting in diversity,” we decline\\nto exercise our discretion to certify this issue to the Texas Supreme Court. 37\\n IV\\n We affirm the district court’s grant of summary judgment to Walgreens.\\n\\n\\n\\n\\n 36For example, this case is unlike Praesel v. Johnson, which considered whether a\\ndoctor’s violation of reporting requirements to the Texas Department of Public Safety\\ngenerated a duty of care between the doctor and a third party who was injured when the\\npatient had a seizure while driving. Praesel, 967 S.W.2d at 394–96. There, although the Texas\\nSupreme Court ultimately did not recognize a duty based on this statutory requirement, it\\nobserved that the “general public” was plainly within the class of persons protected by such\\na requirement. See id. at 395.\\n 37 In re Deepwater Horizon, 807 F.3d 689, 698 (5th Cir. 2015) (quoting Jefferson v.\\n\\nLead Indus. Ass’n, Inc., 106 F.3d 1245, 1248 (5th Cir. 1997)); see also Patterson v. Mobile Oil\\nCorp., 335 F.3d 476, 487 (5th Cir. 2003) (“As a general rule, we do not use certification as a\\npanacea for resolution of those complex or difficult state law questions which have not been\\nanswered by the highest court of the state.” (internal quotation marks omitted)).\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426458/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"JONES"},"judge3":{"kind":"string","value":"COSTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4649205/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Estella MARTINEZ, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Rogelio Martinez, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Jamal Saih, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Olivia Longoria; Rogelio Longoria, Plaintiffs - Appellants v. WALGREEN COMPANY, Defendant - Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-40636 Document: 00515079849 Page: 1 Date Filed: 08/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n August 16, 2019\n No. 18-40636\n Lyle W. Cayce\n Clerk\nESTELLA MARTINEZ, Individually and as sole heirs of the estate of Claudia\nMartinez, Deceased; ROGELIO MARTINEZ, Individually and as sole heirs of\nthe estate of Claudia Martinez, Deceased; JAMAL SAIH, Individually and as\nsole heirs of the estate of Claudia Martinez, Deceased; OLIVIA LONGORIA;\nROGELIO LONGORIA,\n\n Plaintiffs - Appellants\n\nv.\n\nWALGREEN COMPANY,\n\n Defendant - Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\n This case requires us to decide whether, under Texas law, a pharmacy\nowes a duty of care to third parties injured on the road by a customer who was\nnegligently given someone else’s prescription. Concluding that the Texas\nSupreme Court would not recognize this tort duty, we affirm the district court’s\ngrant of summary judgment to Walgreens.\n\f Case: 18-40636 Document: 00515079849 Page: 2 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\n I\n Two sets of plaintiffs, Claudia Martinez’s next of kin and Olivia and\nRogelio Longoria, allege that a Walgreens pharmacy negligently gave Elias\nGamboa Mesa a medication prescribed for another patient rather than the one\nassociated with his own prescription. Walgreens allegedly gave Gamboa\nglyburide metformin, a medication used to treat diabetes—but which can cause\nhypoglycemia, or low blood pressure, in non-diabetics. Symptoms include\ncognitive impairment, behavioral changes, and psychomotor abnormalities.\n The plaintiffs allege that ingesting the drug caused Gamboa to\nexperience severe hypoglycemia and drive erratically on a road in McAllen,\nTexas. First, he rear-ended the Longorias’ car. Then, failing to stop after the\nfirst collision, he crossed the center lane and crashed head-on into Martinez’s\ncar, fatally injuring her. Finally, Gamboa struck three other vehicles in an\nintersection before his own vehicle burst into flames. After Gamboa died from\nhis injuries, an autopsy revealed that he had detectable amounts of glyburide\nmetformin in his system at the time of the accident.\n Gamboa’s son sued Walgreens in Texas state court and Walgreens\nremoved to federal court. The Martinez plaintiffs and the Longorias moved to\nintervene; while the motion was pending, they filed this lawsuit in the same\ncourt. Gamboa’s son and Walgreens ultimately settled, leaving only this\nlawsuit between the injured third parties and Walgreens.\n On Walgreens’s motion for summary judgment, the district court made\nan Erie guess that under Texas law, a medical professional such as a\npharmacist does not owe a duty of care to “unconnected” third parties like\nMartinez and the Longorias. It also rejected the plaintiffs’ argument that\nWalgreens was liable under a theory of negligence per se. Concluding that the\nplaintiffs had no viable theory of liability, it granted Walgreens summary\njudgment. The plaintiffs now urge us to reverse the district court’s\n 2\n\f Case: 18-40636 Document: 00515079849 Page: 3 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\ndetermination that under Texas law, Walgreens did not owe them a duty of\ncare—or, alternatively, to certify this issue to the Texas Supreme Court.\n II\n We review the district court’s grant of summary judgment de novo,\n“viewing the evidence in the light most favorable to the non-moving [parties]\nand drawing all reasonable inferences in the nonmovant[s’] favor.” 1 “The\nmovant prevails by showing ‘that there is no genuine dispute as to any material\nfact and the movant is entitled to judgment as a matter of law.’” 2\n In a diversity case like this one, when no Texas Supreme Court case\n“precisely” resolves the legal issue, we “must make an Erie guess and\ndetermine as best we can what the Supreme Court of Texas would decide.” 3\nThis requires us to use “the sources of law that the state’s highest court would\nlook to, including intermediate state appellate court decisions, the general rule\non the issue, decisions from other jurisdictions, and general policy concerns.” 4\nUltimately, however, “it is not for us to adopt innovative theories of recovery\nunder state law” without strong reason to believe that those theories would be\nadopted if the Texas Supreme Court had the opportunity. 5\n III\n Texas law instructs that “[a] negligence cause of action has three\nelements: 1) a legal duty; 2) breach of that duty; and 3) damages proximately\nresulting from the breach.” 6 The district court stopped its analysis at the first\nstep, concluding that Walgreens owed no legal duty to the plaintiffs.\n\n\n\n 1 E.g., Wease v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 992 (5th Cir. 2019).\n 2 Id. (quoting Fed. R. Civ. P. 56(a)).\n 3 Hays v. HCA Holdings, Inc., 838 F.3d 605, 611 (5th Cir. 2016) (quoting Harris Cty.\n\nv. MERSCORP Inc., 791 F.3d 545, 551 (5th Cir. 2015)).\n 4 Id. (internal quotation marks and citation omitted).\n 5 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018) (quoting Mayo v. Hyatt Corp.,\n\n898 F.2d 47, 49 (5th Cir. 1990)).\n 6 Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).\n\n 3\n\f Case: 18-40636 Document: 00515079849 Page: 4 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\n The Texas Supreme Court has settled that “the existence of duty is a\nquestion of law for the court to decide from the facts surrounding the\noccurrence in question.” 7 “When a duty has not been recognized in particular\ncircumstances, the question is whether one should be.” 8 We conclude that the\ndistrict court did not err in declining to recognize a duty between Walgreens\nand the plaintiffs in this case.\n A\n First, we consider whether the Texas Supreme Court has already spoken\non the existence—or nonexistence—of a duty between a pharmacy and third\nparties injured as the result of an allegedly mis-filled prescription. Walgreens\nurges that this case can straightforwardly be resolved by caselaw holding that\na healthcare provider owes no duty to third-party nonpatients for negligent\ntreatment or misdiagnosis of patients. The Texas Supreme Court has\nrepeatedly recognized that “[a]ny duty of reasonable care on [the part of the\nhealthcare provider] to avoid such negligence originates solely through the\nrelationship with, and flows only to, his patient.” 9 It has also stated that “there\nis generally no relationship between [a] doctor and patient that would provide\nthe type of control necessary to create a duty to third persons.” 10\n\n\n\n 7 Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017) (quoting Greater\nHous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)).\n 8 Id.\n 9 Van Horn, 970 S.W.2d at 545 (holding that a treating physician did not owe a duty\n\nto hospital employees who were killed or injured when trying to subdue a violent patient);\nsee also Thapar v. Zezulka, 994 S.W.2d 635, 636–38 (Tex. 1999) (holding that a psychiatrist\nowed no duty to a third party for negligent misdiagnosis or treatment even where the patient\nhad previously told the psychiatrist that he “[felt] like killing” the third party); Krishnan v.\nSepulveda, 916 S.W.2d 478, 482 (Tex. 1995) (holding that a doctor owed no duty to a woman’s\nhusband when it allegedly provided her with negligent prenatal care that caused her to\nmiscarry); Bird v. W.C.W., 868 S.W.2d 767 (Tex.. 1994) (holding that a psychologist had no\nduty to a third party not to negligently misdiagnose a child’s condition as stemming from the\nthird party’s abuse).\n 10 Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 35–36 (Tex. 2002) (emphasis added).\n\nIn Peavy, however, the Texas Supreme Court held that a medical provider did potentially\n 4\n\f Case: 18-40636 Document: 00515079849 Page: 5 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\n Walgreens’s argument that this line of cases “definitively” resolves the\nissue goes a step too far. The Texas Supreme Court has not yet addressed\nwhether a pharmacy’s duty of care is limited to that pharmacy’s own patients.\nIts negligent-treatment and negligent-misdiagnosis caselaw disfavors\nimposing a duty between healthcare providers and third parties due in part to\nwell-founded concerns about interfering with medical professionals’ judgment\nand discretion. 11 Although pharmacists are treated as healthcare providers\nunder Texas law, 12 the filling of an existing prescription arguably does not\nrequire the same degree of judgment and discretion as an initial diagnosis or\nplan for treatment. 13 We therefore are not convinced that the Texas Supreme\nCourt has already squarely decided this issue in favor of Walgreens, and\ncannot comfortably end our analysis here.\n B\n Acknowledging that the Texas Supreme Court has also not spoken in\ntheir favor regarding this issue, the plaintiffs instead ask us to extrapolate a\n\n\n\n\nhave a duty of care to third parties when it allegedly failed to control a patient who was under\nan unusually high degree of court-mandated supervision. See id.\n 11 The seminal case on the duty of a health-care professional to third parties, W.C.W.\n\nv. Bird, emphasized the need for mental health professionals to be “allowed to exercise their\nprofessional judgment in diagnosing sexual abuse of a child without the judicial imposition\nof a countervailing duty to third parties.” 868 S.W.2d at 769.\n 12 See Tex. Civ. Prac. & Rem. § 74.001(a)(12)(A).\n 13 Walgreens cites an unpublished intermediate appellate decision, Davis v. Eckerd\n\nHoldings II, Inc., extending the Texas Supreme Court’s negligent-treatment and negligent-\nmisdiagnosis caselaw to pharmacists. No. 05-96-01413-CV, 1999 WL 605590 (Tex. App—\nDallas, 1999, no pet.). That case addressed whether a pharmacist owed a tort duty to the\nparents of an infant who suffered a drug overdose after having been given syrup that was\none thousand times more powerful than the prescribed medication. See id. at *1. The Court\nof Appeals concluded that because pharmacists qualify as healthcare providers under Texas\nlaw, the Texas Supreme Court’s negligent-treatment and negligent-misdiagnosis cases were\n“instructive” in concluding that the pharmacist owed the parents no duty of care separate\nfrom a duty to their infant child. Id. at *3. Standing alone, Davis does not allow us to conclude\neither that the Texas Supreme Court has definitively established that pharmacies owe no\ntort duties to third parties or that it would do so if given the opportunity.\n 5\n\f Case: 18-40636 Document: 00515079849 Page: 6 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\nduty from other areas of Texas tort law. 14 They rely heavily on Gooden v. Tips,\nan intermediate appellate case holding that where a doctor had prescribed a\npatient Quaaludes without warning her about the risks of driving under their\ninfluence, the doctor owed a duty of care to a third party who was struck by the\npatient. 15 It is unlikely that Gooden reflects the Texas Supreme Court’s view\non a healthcare provider’s duty to third parties to warn patients of the risk of\nprescribed medication. It was decided before the line of cases addressing\nhealthcare providers’ duties to third parties, and the Texas Supreme Court\nsubsequently rejected a duty on the part of a doctor to warn an epileptic patient\nabout the risk of driving. 16 A concurring opinion in that case faulted the\nmajority for failing to make clearer that Gooden is not good law in light of the\ncases limiting health care professionals’ duty to their own patients. 17\n Regardless, to the extent that Gooden represents how the Texas\nSupreme Court would resolve the question of whether a health care\nprofessional has a duty to third parties to warn a patient of the risks of\nprescribed medication, Gooden’s framework does not apply here. The plaintiffs\n\n\n\n 14 The plaintiffs also argue that Walgreens has liability under the Texas Wrongful\nDeath Act, Tex. Civ. Prac. & Rem. Code § 71.002 et seq., and that the district court’s decision\ndenied them their right to open courts under the Texas Constitution, Tex. Const. Art. I, § 13.\nThese arguments fail because they are predicated on the assumption that Walgreens owed\nthe plaintiffs—in the case of the Wrongful Death Act, only Martinez—a duty of care. They\ncannot support liability absent an accompanying duty. See Tex. Civ. Prac. & Rem. Code §\n71.003(a) (providing a cause of action under the Wrongful Death Act “only if the individual\ninjured would have been entitled to bring an action for the injury if the individual had lived”);\nBurlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 360 (5th Cir. 2005)\n(explaining that the “open courts” provision does not create new rights, but rather protects\nthe ability to pursue remedies “for such wrongs as are recognized by the law of the land”\n(citation omitted)).\n 15 651 S.W.2d 364, 365–72 (Tex. App.—Tyler, 1983, no writ); see also Flynn v. Hous.\n\nEmergicare, Inc., 869 S.W.2d 403, 405–06 (Tex. App.—Houston [1st Dist.] 1993, writ denied)\n(distinguishing Gooden as a case where a doctor had a duty to third parties because the doctor\ngave the patient the medication that caused her impairment).\n 16 See Praesel v. Johnson, 967 S.W.2d 391, 398 (Tex. 1998).\n 17 See id. at 399 (Enoch, J., concurring).\n\n 6\n\f Case: 18-40636 Document: 00515079849 Page: 7 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\ndo not contend that the medication given to Gamboa was unaccompanied by\nproper warnings and directions for its use. Nor do we think that the theory\nunderlying Gooden maps neatly onto the facts of this case. As we will explain,\nforeseeability is paramount to the duty analysis, and there are relevant\ndifferences between failing to warn a patient of the risks of medication that the\nhealthcare professional knows the patient will take, on the one hand, and\ngiving a patient a bottle of prescription medication intended for someone else,\non the other.\n Taking a different tack, the plaintiffs also argue that tort liability here\nis simply an analogue of “dram shop” liability under Texas law. El Chico Corp.\nv. Poole held that an alcoholic beverage licensee had a duty of care to third\nparties not to serve alcohol to a customer the licensee knew or should have\nknown was intoxicated and who later injured others by driving under the\ninfluence. 18 The Texas Supreme Court reasoned that because “[t]he risk and\nlikelihood of injury from serving alcohol to an intoxicated person whom the\nlicensee knows will probably drive a car is . . . readily foreseen,” a duty of care\nowed by licensees to third parties is “merely the application of the general duty\nto exercise reasonable care to avoid foreseeable injury to others.” 19 The\nplaintiffs argue that where a pharmacy gives a customer a medication with the\npotential to cause side effects similar to intoxication, it should bear a similar\nduty to injured third parties.\n The analogy to dram-shop liability fails for two reasons. First, one week\nafter El Chico was decided, the Texas legislature enacted the Dram Shop Act\nto supplant judicially created liability with a statutory remedy, limiting\n\n\n\n\n 18 732 S.W.2d 306 (Tex. 1987).\n 19 Id. at 311.\n 7\n\f Case: 18-40636 Document: 00515079849 Page: 8 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\nliability for alcoholic beverage providers in the process. 20 The legislature’s\nresponse strongly suggests that creating liability between providers of\npotentially dangerous substances and injured third parties involves delicate\npolicy determinations. Unsurprisingly, “Texas courts have not expanded the\nduty in El Chico to cover the sale of other potentially harmful products.” 21\nSecond, and relatedly, this case presents different public policy considerations\nfrom where a licensee provides alcohol to an already intoxicated person: the\nsocial value of pharmacy work is higher than the social value of dram shops,\nand the foreseeability of the harm that occurred in this case pales in\ncomparison to the foreseeable harm caused by serving alcohol to intoxicated\nbar patrons who will then drive. It does not follow that because the Texas\nSupreme Court recognized a duty of care between a licensee and third parties\nforeseeably injured by drunk driving—in a move promptly superseded by\nstatute—it would recognize a duty between pharmacies and third parties\ninjured as the result of mis-filled prescriptions.\n C\n This brings us to the core of the duty analysis under Texas law. When\nthe Texas Supreme Court has neither established nor foreclosed the possibility\nof a tort duty in “particular circumstances,” Texas courts ask whether such a\nduty “should be” recognized. 22 This involves “social, economic, and political\nquestions and their application to the facts at hand,” and involves weighing\n“the risk, foreseeability, and likelihood of injury against the social utility of the\n\n\n\n\n 20 See Tex. Alco. Bev. Code §§ 2.02–03 (granting a statutory cause of action against\nalcoholic beverage providers and making it the exclusive remedy); Graff v. Beard, 858 S.W.2d\n918, 919–20 (Tex. 1993) (explaining that “[t]he statutory duty established by the legislature\nalso placed a less onerous burden on commercial providers and a correspondingly higher\nburden of proof on injured parties than the common-law duty created by the court”).\n 21 Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 179–80 (5th Cir. 2018).\n 22 Pagayon, 536 S.W.3d at 503.\n\n 8\n\f Case: 18-40636 Document: 00515079849 Page: 9 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\nactor’s conduct, the magnitude of the burden of guarding against the injury,\nand the consequences of placing the burden on the defendant,” along with\nconsidering “whether one party would generally have superior knowledge of\nthe risk or a right to control the actor who caused the harm.” 23\n We have little difficulty concluding that the Texas Supreme Court would\nnot impose a tort duty between pharmacies and third parties of the type the\nplaintiffs here advocate. The Texas Supreme Court has “described\nforeseeability as the ‘foremost and dominant consideration’ in the duty\nanalysis,” 24 and we agree with Walgreens that the harm caused to Martinez\nand the Longorias was not a foreseeable consequence of Walgreens’s alleged\nconduct. Most importantly, it was not sufficiently foreseeable that a pharmacy\ncustomer would take the medication in a bottle intended for someone else,\nnotwithstanding that the label listed someone else’s name and a different\nmedication. 25 To be sure, the foreseeability inquiry does not require Walgreens\nto have foreseen the precise harm to third parties that in fact resulted from\ngiving Gamboa someone else’s prescription. 26 But where Texas courts have\n\n\n\n\n 23 Id. (quoting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex.\n2004)).\n E.g., Peavy, 89 S.W.3d at 36.\n 24\n\n It is also unclear that it was foreseeable that a customer who took someone else’s\n 25\n\nprescription drug would experience the type of reaction that would impair his cognitive and\nmotor skills while driving. The plaintiffs’ own summary judgment evidence indicates that\nglyburide metformin does not necessarily cause hypoglycemia in non-diabetics, and that\nGamboa’s age and impaired kidney function made him more susceptible to the condition as\na result of taking the medication. This distinguishes this case from, for example, Gooden,\nwhere the drug was likely to impair the ability to safely drive in anyone who took it. See\nGooden, 651 S.W.2d at 369–70.\n 26 See Austin v. Kroger, 864 F.3d 326, 333 (5th Cir. 2017) (per curiam) (“Texas courts\n\nhave consistently held that foreseeability turns on the existence of general danger, not\nawareness of the exact sequence of events that produced the harm.” (internal quotation\nmarks omitted)).\n 9\n\f Case: 18-40636 Document: 00515079849 Page: 10 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\nfound the risk of harm to a third party to have been foreseeable, the possibility\nof harm was significantly less attenuated. 27\n Foreseeability aside, the Texas legislature has shown itself to be both\nwilling and able to undertake the public policy balancing inherent in extensive\nregulation of pharmacies’ treatment of prescription drugs. For example, Texas\nlaw allows pharmacies to dispense dangerous drugs—including any drug that\nrequires a prescription, such as glyburide metformin—only to those with valid\nprescriptions. 28 It sets forth extensive labeling requirements, including that\nthe label be easily readable and include the name of the patient and the drug’s\nbrand name or generic name. 29 Further, it imposes criminal liability on\npharmacists who dispense dangerous drugs without prescriptions or fail to\ncomply with labeling requirements, 30 and imposes civil penalties on those who\nunlawfully engage in the practice of pharmacy. 31 That is, the legislature has\ndetailed other protections against the risk, and a tort duty to third parties\nwould be in tension with this extensive regulatory scheme. 32 This bolsters our\n\n\n 27 See Peavy, 89 S.W.3d at 36–39 (rejecting summary judgment due to genuine issues\nof material fact over whether it was foreseeable to a care facility for the mentally disabled\nthat a resident with an extensive history of violence would pose a threat to strangers when\nallowed outside the facility); Bird, 868 S.W.2d at 769 (recognizing the foreseeable harm to a\nparent who was accused of sexual abuse due to allegedly negligent mental health treatment\nprovided to the child, though ultimately concluding that the mental health professional still\ndid not owe a duty of care to the parent); El Chico, 732 S.W.2d at 313–14 (emphasizing the\nforeseeability of harm specifically where an alcoholic beverage purveyor sold alcohol to a\ncustomer who was already intoxicated and who the purveyor knew or should have known was\nlikely to drive after leaving the establishment); Gooden, 651 S.W.2d at 368 (recognizing a\nforeseeable risk of harm where a doctor prescribed a patient Quaaludes and could have\nexpected that she would take those drugs before driving without a warning to the contrary).\n 28 See Tex. Health & Safety Code § 483.021(a); Tex. Occ. Code §§ 562.056, 562.112.\n 29 See Tex. Occ. Code § 562.006.\n 30 See Tex. Health & Safety Code § 483.042.\n 31 See Tex. Occ. Code § 566.101.\n 32 See Ritchie v. Rupe, 443 S.W.3d 856, 891 (Tex. 2014) (declining to create a new cause\n\nof action, in part because the legislature had already created a “detailed and extensive”\nstatutory scheme, “reflecting legislative policy judgments about when the government should\nstep in to impose rights and obligations on the parties and when the parties should be free to\ndictate their own rights and obligations vis-à-vis each other”).\n 10\n\f Case: 18-40636 Document: 00515079849 Page: 11 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\nconclusion that the Texas Supreme Court would not recognize a duty of care\nowed by Walgreens to the plaintiffs in this case.\n The plaintiffs suggest that this degree of legislative involvement actually\ncuts in their favor, in particular the statutory prohibitions on distributing\nprescription drugs to someone without a prescription. They disclaim reliance\non statute to create tort liability where none would otherwise exist, arguing\nsolely that statutory prohibitions help to more clearly define the standard of\ncare Walgreens owed. But their reliance on statute begs the question of\nwhether Walgreens owed a preexisting duty of care to the plaintiffs as non-\npatient third parties.\n To the extent that Texas courts are willing to infer a new tort duty from\nlegislation—a rare, but not unheard-of, phenomenon 33—we disagree that the\nstatutory prohibitions the plaintiffs cite point to a duty here. The Texas\nSupreme Court has settled that “[t]he threshold questions in every negligence\nper se case are whether the plaintiff belongs to the class that the statute was\nintended to protect and whether the plaintiff’s injury is of a type that the\nstatute was designed to prevent.” 34 We do not doubt that legislative regulation\nof pharmacies was intended to protect “the public health, safety, and\nwelfare.” 35 The plaintiffs argue that as members of the public, they are\ntherefore within the class of persons that the legislature aimed to protect by\nprohibiting the distribution of a prescription drug to someone without a\nprescription for that drug. Nothing suggests, however, that this statutory\n\n\n\n\n 33 See Perry v. S.N., 973 S.W.2d 301, 305–08 (Tex. 1998) (observing that the Texas\nSupreme Court has “created a new duty by applying negligence per se on only one occasion”);\nsee also Allen, 907 F.3d at 180 (after declining to recognize a common-law duty under Texas\nlaw, observing that “[t]ellingly, Texas courts rarely imply a civil tort duty from a criminal\nstatute”).\n 34 Perry, 973 S.W.2d at 305.\n 35 See Tex. Occ. Code § 551.002.\n\n 11\n\f Case: 18-40636 Document: 00515079849 Page: 12 Date Filed: 08/16/2019\n\n\n\n No. 18-40636\nprohibition intended to prevent the type of harm that the plaintiffs\nexperienced—rather than preventing harm to the members of the public who\ningest potentially dangerous prescription drugs and suffer harm as a result. 36\nWe therefore cannot infer from Walgreens’s alleged violation of its statutory\nobligations that its tort duty of care extends to the third-party plaintiffs in this\ncase.\n ***\n In sum, looking to the factors the Texas Supreme Court would consider—\nin particular, the foreseeability of the harm, the presence of other protections,\nand the danger of interference with the legislature’s balancing of public\npolicies—we conclude that the Texas Supreme Court would not recognize a\nduty between a pharmacy and third parties injured as a result of a customer\ntaking the incorrect prescription. Mindful that we should not “lightly abdicate\nour mandate to decide issues of state law when sitting in diversity,” we decline\nto exercise our discretion to certify this issue to the Texas Supreme Court. 37\n IV\n We affirm the district court’s grant of summary judgment to Walgreens.\n\n\n\n\n 36For example, this case is unlike Praesel v. Johnson, which considered whether a\ndoctor’s violation of reporting requirements to the Texas Department of Public Safety\ngenerated a duty of care between the doctor and a third party who was injured when the\npatient had a seizure while driving. Praesel, 967 S.W.2d at 394–96. There, although the Texas\nSupreme Court ultimately did not recognize a duty based on this statutory requirement, it\nobserved that the “general public” was plainly within the class of persons protected by such\na requirement. See id. at 395.\n 37 In re Deepwater Horizon, 807 F.3d 689, 698 (5th Cir. 2015) (quoting Jefferson v.\n\nLead Indus. Ass’n, Inc., 106 F.3d 1245, 1248 (5th Cir. 1997)); see also Patterson v. Mobile Oil\nCorp., 335 F.3d 476, 487 (5th Cir. 2003) (“As a general rule, we do not use certification as a\npanacea for resolution of those complex or difficult state law questions which have not been\nanswered by the highest court of the state.” (internal quotation marks omitted)).\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Estella MARTINEZ, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Rogelio Martinez, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Jamal Saih, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Olivia Longoria; Rogelio Longoria, Plaintiffs - Appellants v. WALGREEN COMPANY, Defendant - Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-40636 Document: 00515079849 Page: 1 Date Filed: 08/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 16, 2019\\n No. 18-40636\\n Lyle W. Cayce\\n Clerk\\nESTELLA MARTINEZ, Individually and as sole heirs of the estate of Claudia\\nMartinez, Deceased; ROGELIO MARTINEZ, Individually and as sole heirs of\\nthe estate of Claudia Martinez, Deceased; JAMAL SAIH, Individually and as\\nsole heirs of the estate of Claudia Martinez, Deceased; OLIVIA LONGORIA;\\nROGELIO LONGORIA,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nWALGREEN COMPANY,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n This case requires us to decide whether, under Texas law, a pharmacy\\nowes a duty of care to third parties injured on the road by a customer who was\\nnegligently given someone else’s prescription. Concluding that the Texas\\nSupreme Court would not recognize this tort duty, we affirm the district court’s\\ngrant of summary judgment to Walgreens.\\n\\f Case: 18-40636 Document: 00515079849 Page: 2 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\n I\\n Two sets of plaintiffs, Claudia Martinez’s next of kin and Olivia and\\nRogelio Longoria, allege that a Walgreens pharmacy negligently gave Elias\\nGamboa Mesa a medication prescribed for another patient rather than the one\\nassociated with his own prescription. Walgreens allegedly gave Gamboa\\nglyburide metformin, a medication used to treat diabetes—but which can cause\\nhypoglycemia, or low blood pressure, in non-diabetics. Symptoms include\\ncognitive impairment, behavioral changes, and psychomotor abnormalities.\\n The plaintiffs allege that ingesting the drug caused Gamboa to\\nexperience severe hypoglycemia and drive erratically on a road in McAllen,\\nTexas. First, he rear-ended the Longorias’ car. Then, failing to stop after the\\nfirst collision, he crossed the center lane and crashed head-on into Martinez’s\\ncar, fatally injuring her. Finally, Gamboa struck three other vehicles in an\\nintersection before his own vehicle burst into flames. After Gamboa died from\\nhis injuries, an autopsy revealed that he had detectable amounts of glyburide\\nmetformin in his system at the time of the accident.\\n Gamboa’s son sued Walgreens in Texas state court and Walgreens\\nremoved to federal court. The Martinez plaintiffs and the Longorias moved to\\nintervene; while the motion was pending, they filed this lawsuit in the same\\ncourt. Gamboa’s son and Walgreens ultimately settled, leaving only this\\nlawsuit between the injured third parties and Walgreens.\\n On Walgreens’s motion for summary judgment, the district court made\\nan Erie guess that under Texas law, a medical professional such as a\\npharmacist does not owe a duty of care to “unconnected” third parties like\\nMartinez and the Longorias. It also rejected the plaintiffs’ argument that\\nWalgreens was liable under a theory of negligence per se. Concluding that the\\nplaintiffs had no viable theory of liability, it granted Walgreens summary\\njudgment. The plaintiffs now urge us to reverse the district court’s\\n 2\\n\\f Case: 18-40636 Document: 00515079849 Page: 3 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\ndetermination that under Texas law, Walgreens did not owe them a duty of\\ncare—or, alternatively, to certify this issue to the Texas Supreme Court.\\n II\\n We review the district court’s grant of summary judgment de novo,\\n“viewing the evidence in the light most favorable to the non-moving [parties]\\nand drawing all reasonable inferences in the nonmovant[s’] favor.” 1 “The\\nmovant prevails by showing ‘that there is no genuine dispute as to any material\\nfact and the movant is entitled to judgment as a matter of law.’” 2\\n In a diversity case like this one, when no Texas Supreme Court case\\n“precisely” resolves the legal issue, we “must make an Erie guess and\\ndetermine as best we can what the Supreme Court of Texas would decide.” 3\\nThis requires us to use “the sources of law that the state’s highest court would\\nlook to, including intermediate state appellate court decisions, the general rule\\non the issue, decisions from other jurisdictions, and general policy concerns.” 4\\nUltimately, however, “it is not for us to adopt innovative theories of recovery\\nunder state law” without strong reason to believe that those theories would be\\nadopted if the Texas Supreme Court had the opportunity. 5\\n III\\n Texas law instructs that “[a] negligence cause of action has three\\nelements: 1) a legal duty; 2) breach of that duty; and 3) damages proximately\\nresulting from the breach.” 6 The district court stopped its analysis at the first\\nstep, concluding that Walgreens owed no legal duty to the plaintiffs.\\n\\n\\n\\n 1 E.g., Wease v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 992 (5th Cir. 2019).\\n 2 Id. (quoting Fed. R. Civ. P. 56(a)).\\n 3 Hays v. HCA Holdings, Inc., 838 F.3d 605, 611 (5th Cir. 2016) (quoting Harris Cty.\\n\\nv. MERSCORP Inc., 791 F.3d 545, 551 (5th Cir. 2015)).\\n 4 Id. (internal quotation marks and citation omitted).\\n 5 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018) (quoting Mayo v. Hyatt Corp.,\\n\\n898 F.2d 47, 49 (5th Cir. 1990)).\\n 6 Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).\\n\\n 3\\n\\f Case: 18-40636 Document: 00515079849 Page: 4 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\n The Texas Supreme Court has settled that “the existence of duty is a\\nquestion of law for the court to decide from the facts surrounding the\\noccurrence in question.” 7 “When a duty has not been recognized in particular\\ncircumstances, the question is whether one should be.” 8 We conclude that the\\ndistrict court did not err in declining to recognize a duty between Walgreens\\nand the plaintiffs in this case.\\n A\\n First, we consider whether the Texas Supreme Court has already spoken\\non the existence—or nonexistence—of a duty between a pharmacy and third\\nparties injured as the result of an allegedly mis-filled prescription. Walgreens\\nurges that this case can straightforwardly be resolved by caselaw holding that\\na healthcare provider owes no duty to third-party nonpatients for negligent\\ntreatment or misdiagnosis of patients. The Texas Supreme Court has\\nrepeatedly recognized that “[a]ny duty of reasonable care on [the part of the\\nhealthcare provider] to avoid such negligence originates solely through the\\nrelationship with, and flows only to, his patient.” 9 It has also stated that “there\\nis generally no relationship between [a] doctor and patient that would provide\\nthe type of control necessary to create a duty to third persons.” 10\\n\\n\\n\\n 7 Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017) (quoting Greater\\nHous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)).\\n 8 Id.\\n 9 Van Horn, 970 S.W.2d at 545 (holding that a treating physician did not owe a duty\\n\\nto hospital employees who were killed or injured when trying to subdue a violent patient);\\nsee also Thapar v. Zezulka, 994 S.W.2d 635, 636–38 (Tex. 1999) (holding that a psychiatrist\\nowed no duty to a third party for negligent misdiagnosis or treatment even where the patient\\nhad previously told the psychiatrist that he “[felt] like killing” the third party); Krishnan v.\\nSepulveda, 916 S.W.2d 478, 482 (Tex. 1995) (holding that a doctor owed no duty to a woman’s\\nhusband when it allegedly provided her with negligent prenatal care that caused her to\\nmiscarry); Bird v. W.C.W., 868 S.W.2d 767 (Tex.. 1994) (holding that a psychologist had no\\nduty to a third party not to negligently misdiagnose a child’s condition as stemming from the\\nthird party’s abuse).\\n 10 Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 35–36 (Tex. 2002) (emphasis added).\\n\\nIn Peavy, however, the Texas Supreme Court held that a medical provider did potentially\\n 4\\n\\f Case: 18-40636 Document: 00515079849 Page: 5 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\n Walgreens’s argument that this line of cases “definitively” resolves the\\nissue goes a step too far. The Texas Supreme Court has not yet addressed\\nwhether a pharmacy’s duty of care is limited to that pharmacy’s own patients.\\nIts negligent-treatment and negligent-misdiagnosis caselaw disfavors\\nimposing a duty between healthcare providers and third parties due in part to\\nwell-founded concerns about interfering with medical professionals’ judgment\\nand discretion. 11 Although pharmacists are treated as healthcare providers\\nunder Texas law, 12 the filling of an existing prescription arguably does not\\nrequire the same degree of judgment and discretion as an initial diagnosis or\\nplan for treatment. 13 We therefore are not convinced that the Texas Supreme\\nCourt has already squarely decided this issue in favor of Walgreens, and\\ncannot comfortably end our analysis here.\\n B\\n Acknowledging that the Texas Supreme Court has also not spoken in\\ntheir favor regarding this issue, the plaintiffs instead ask us to extrapolate a\\n\\n\\n\\n\\nhave a duty of care to third parties when it allegedly failed to control a patient who was under\\nan unusually high degree of court-mandated supervision. See id.\\n 11 The seminal case on the duty of a health-care professional to third parties, W.C.W.\\n\\nv. Bird, emphasized the need for mental health professionals to be “allowed to exercise their\\nprofessional judgment in diagnosing sexual abuse of a child without the judicial imposition\\nof a countervailing duty to third parties.” 868 S.W.2d at 769.\\n 12 See Tex. Civ. Prac. & Rem. § 74.001(a)(12)(A).\\n 13 Walgreens cites an unpublished intermediate appellate decision, Davis v. Eckerd\\n\\nHoldings II, Inc., extending the Texas Supreme Court’s negligent-treatment and negligent-\\nmisdiagnosis caselaw to pharmacists. No. 05-96-01413-CV, 1999 WL 605590 (Tex. App—\\nDallas, 1999, no pet.). That case addressed whether a pharmacist owed a tort duty to the\\nparents of an infant who suffered a drug overdose after having been given syrup that was\\none thousand times more powerful than the prescribed medication. See id. at *1. The Court\\nof Appeals concluded that because pharmacists qualify as healthcare providers under Texas\\nlaw, the Texas Supreme Court’s negligent-treatment and negligent-misdiagnosis cases were\\n“instructive” in concluding that the pharmacist owed the parents no duty of care separate\\nfrom a duty to their infant child. Id. at *3. Standing alone, Davis does not allow us to conclude\\neither that the Texas Supreme Court has definitively established that pharmacies owe no\\ntort duties to third parties or that it would do so if given the opportunity.\\n 5\\n\\f Case: 18-40636 Document: 00515079849 Page: 6 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nduty from other areas of Texas tort law. 14 They rely heavily on Gooden v. Tips,\\nan intermediate appellate case holding that where a doctor had prescribed a\\npatient Quaaludes without warning her about the risks of driving under their\\ninfluence, the doctor owed a duty of care to a third party who was struck by the\\npatient. 15 It is unlikely that Gooden reflects the Texas Supreme Court’s view\\non a healthcare provider’s duty to third parties to warn patients of the risk of\\nprescribed medication. It was decided before the line of cases addressing\\nhealthcare providers’ duties to third parties, and the Texas Supreme Court\\nsubsequently rejected a duty on the part of a doctor to warn an epileptic patient\\nabout the risk of driving. 16 A concurring opinion in that case faulted the\\nmajority for failing to make clearer that Gooden is not good law in light of the\\ncases limiting health care professionals’ duty to their own patients. 17\\n Regardless, to the extent that Gooden represents how the Texas\\nSupreme Court would resolve the question of whether a health care\\nprofessional has a duty to third parties to warn a patient of the risks of\\nprescribed medication, Gooden’s framework does not apply here. The plaintiffs\\n\\n\\n\\n 14 The plaintiffs also argue that Walgreens has liability under the Texas Wrongful\\nDeath Act, Tex. Civ. Prac. & Rem. Code § 71.002 et seq., and that the district court’s decision\\ndenied them their right to open courts under the Texas Constitution, Tex. Const. Art. I, § 13.\\nThese arguments fail because they are predicated on the assumption that Walgreens owed\\nthe plaintiffs—in the case of the Wrongful Death Act, only Martinez—a duty of care. They\\ncannot support liability absent an accompanying duty. See Tex. Civ. Prac. & Rem. Code §\\n71.003(a) (providing a cause of action under the Wrongful Death Act “only if the individual\\ninjured would have been entitled to bring an action for the injury if the individual had lived”);\\nBurlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 360 (5th Cir. 2005)\\n(explaining that the “open courts” provision does not create new rights, but rather protects\\nthe ability to pursue remedies “for such wrongs as are recognized by the law of the land”\\n(citation omitted)).\\n 15 651 S.W.2d 364, 365–72 (Tex. App.—Tyler, 1983, no writ); see also Flynn v. Hous.\\n\\nEmergicare, Inc., 869 S.W.2d 403, 405–06 (Tex. App.—Houston [1st Dist.] 1993, writ denied)\\n(distinguishing Gooden as a case where a doctor had a duty to third parties because the doctor\\ngave the patient the medication that caused her impairment).\\n 16 See Praesel v. Johnson, 967 S.W.2d 391, 398 (Tex. 1998).\\n 17 See id. at 399 (Enoch, J., concurring).\\n\\n 6\\n\\f Case: 18-40636 Document: 00515079849 Page: 7 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\ndo not contend that the medication given to Gamboa was unaccompanied by\\nproper warnings and directions for its use. Nor do we think that the theory\\nunderlying Gooden maps neatly onto the facts of this case. As we will explain,\\nforeseeability is paramount to the duty analysis, and there are relevant\\ndifferences between failing to warn a patient of the risks of medication that the\\nhealthcare professional knows the patient will take, on the one hand, and\\ngiving a patient a bottle of prescription medication intended for someone else,\\non the other.\\n Taking a different tack, the plaintiffs also argue that tort liability here\\nis simply an analogue of “dram shop” liability under Texas law. El Chico Corp.\\nv. Poole held that an alcoholic beverage licensee had a duty of care to third\\nparties not to serve alcohol to a customer the licensee knew or should have\\nknown was intoxicated and who later injured others by driving under the\\ninfluence. 18 The Texas Supreme Court reasoned that because “[t]he risk and\\nlikelihood of injury from serving alcohol to an intoxicated person whom the\\nlicensee knows will probably drive a car is . . . readily foreseen,” a duty of care\\nowed by licensees to third parties is “merely the application of the general duty\\nto exercise reasonable care to avoid foreseeable injury to others.” 19 The\\nplaintiffs argue that where a pharmacy gives a customer a medication with the\\npotential to cause side effects similar to intoxication, it should bear a similar\\nduty to injured third parties.\\n The analogy to dram-shop liability fails for two reasons. First, one week\\nafter El Chico was decided, the Texas legislature enacted the Dram Shop Act\\nto supplant judicially created liability with a statutory remedy, limiting\\n\\n\\n\\n\\n 18 732 S.W.2d 306 (Tex. 1987).\\n 19 Id. at 311.\\n 7\\n\\f Case: 18-40636 Document: 00515079849 Page: 8 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nliability for alcoholic beverage providers in the process. 20 The legislature’s\\nresponse strongly suggests that creating liability between providers of\\npotentially dangerous substances and injured third parties involves delicate\\npolicy determinations. Unsurprisingly, “Texas courts have not expanded the\\nduty in El Chico to cover the sale of other potentially harmful products.” 21\\nSecond, and relatedly, this case presents different public policy considerations\\nfrom where a licensee provides alcohol to an already intoxicated person: the\\nsocial value of pharmacy work is higher than the social value of dram shops,\\nand the foreseeability of the harm that occurred in this case pales in\\ncomparison to the foreseeable harm caused by serving alcohol to intoxicated\\nbar patrons who will then drive. It does not follow that because the Texas\\nSupreme Court recognized a duty of care between a licensee and third parties\\nforeseeably injured by drunk driving—in a move promptly superseded by\\nstatute—it would recognize a duty between pharmacies and third parties\\ninjured as the result of mis-filled prescriptions.\\n C\\n This brings us to the core of the duty analysis under Texas law. When\\nthe Texas Supreme Court has neither established nor foreclosed the possibility\\nof a tort duty in “particular circumstances,” Texas courts ask whether such a\\nduty “should be” recognized. 22 This involves “social, economic, and political\\nquestions and their application to the facts at hand,” and involves weighing\\n“the risk, foreseeability, and likelihood of injury against the social utility of the\\n\\n\\n\\n\\n 20 See Tex. Alco. Bev. Code §§ 2.02–03 (granting a statutory cause of action against\\nalcoholic beverage providers and making it the exclusive remedy); Graff v. Beard, 858 S.W.2d\\n918, 919–20 (Tex. 1993) (explaining that “[t]he statutory duty established by the legislature\\nalso placed a less onerous burden on commercial providers and a correspondingly higher\\nburden of proof on injured parties than the common-law duty created by the court”).\\n 21 Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 179–80 (5th Cir. 2018).\\n 22 Pagayon, 536 S.W.3d at 503.\\n\\n 8\\n\\f Case: 18-40636 Document: 00515079849 Page: 9 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nactor’s conduct, the magnitude of the burden of guarding against the injury,\\nand the consequences of placing the burden on the defendant,” along with\\nconsidering “whether one party would generally have superior knowledge of\\nthe risk or a right to control the actor who caused the harm.” 23\\n We have little difficulty concluding that the Texas Supreme Court would\\nnot impose a tort duty between pharmacies and third parties of the type the\\nplaintiffs here advocate. The Texas Supreme Court has “described\\nforeseeability as the ‘foremost and dominant consideration’ in the duty\\nanalysis,” 24 and we agree with Walgreens that the harm caused to Martinez\\nand the Longorias was not a foreseeable consequence of Walgreens’s alleged\\nconduct. Most importantly, it was not sufficiently foreseeable that a pharmacy\\ncustomer would take the medication in a bottle intended for someone else,\\nnotwithstanding that the label listed someone else’s name and a different\\nmedication. 25 To be sure, the foreseeability inquiry does not require Walgreens\\nto have foreseen the precise harm to third parties that in fact resulted from\\ngiving Gamboa someone else’s prescription. 26 But where Texas courts have\\n\\n\\n\\n\\n 23 Id. (quoting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex.\\n2004)).\\n E.g., Peavy, 89 S.W.3d at 36.\\n 24\\n\\n It is also unclear that it was foreseeable that a customer who took someone else’s\\n 25\\n\\nprescription drug would experience the type of reaction that would impair his cognitive and\\nmotor skills while driving. The plaintiffs’ own summary judgment evidence indicates that\\nglyburide metformin does not necessarily cause hypoglycemia in non-diabetics, and that\\nGamboa’s age and impaired kidney function made him more susceptible to the condition as\\na result of taking the medication. This distinguishes this case from, for example, Gooden,\\nwhere the drug was likely to impair the ability to safely drive in anyone who took it. See\\nGooden, 651 S.W.2d at 369–70.\\n 26 See Austin v. Kroger, 864 F.3d 326, 333 (5th Cir. 2017) (per curiam) (“Texas courts\\n\\nhave consistently held that foreseeability turns on the existence of general danger, not\\nawareness of the exact sequence of events that produced the harm.” (internal quotation\\nmarks omitted)).\\n 9\\n\\f Case: 18-40636 Document: 00515079849 Page: 10 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nfound the risk of harm to a third party to have been foreseeable, the possibility\\nof harm was significantly less attenuated. 27\\n Foreseeability aside, the Texas legislature has shown itself to be both\\nwilling and able to undertake the public policy balancing inherent in extensive\\nregulation of pharmacies’ treatment of prescription drugs. For example, Texas\\nlaw allows pharmacies to dispense dangerous drugs—including any drug that\\nrequires a prescription, such as glyburide metformin—only to those with valid\\nprescriptions. 28 It sets forth extensive labeling requirements, including that\\nthe label be easily readable and include the name of the patient and the drug’s\\nbrand name or generic name. 29 Further, it imposes criminal liability on\\npharmacists who dispense dangerous drugs without prescriptions or fail to\\ncomply with labeling requirements, 30 and imposes civil penalties on those who\\nunlawfully engage in the practice of pharmacy. 31 That is, the legislature has\\ndetailed other protections against the risk, and a tort duty to third parties\\nwould be in tension with this extensive regulatory scheme. 32 This bolsters our\\n\\n\\n 27 See Peavy, 89 S.W.3d at 36–39 (rejecting summary judgment due to genuine issues\\nof material fact over whether it was foreseeable to a care facility for the mentally disabled\\nthat a resident with an extensive history of violence would pose a threat to strangers when\\nallowed outside the facility); Bird, 868 S.W.2d at 769 (recognizing the foreseeable harm to a\\nparent who was accused of sexual abuse due to allegedly negligent mental health treatment\\nprovided to the child, though ultimately concluding that the mental health professional still\\ndid not owe a duty of care to the parent); El Chico, 732 S.W.2d at 313–14 (emphasizing the\\nforeseeability of harm specifically where an alcoholic beverage purveyor sold alcohol to a\\ncustomer who was already intoxicated and who the purveyor knew or should have known was\\nlikely to drive after leaving the establishment); Gooden, 651 S.W.2d at 368 (recognizing a\\nforeseeable risk of harm where a doctor prescribed a patient Quaaludes and could have\\nexpected that she would take those drugs before driving without a warning to the contrary).\\n 28 See Tex. Health & Safety Code § 483.021(a); Tex. Occ. Code §§ 562.056, 562.112.\\n 29 See Tex. Occ. Code § 562.006.\\n 30 See Tex. Health & Safety Code § 483.042.\\n 31 See Tex. Occ. Code § 566.101.\\n 32 See Ritchie v. Rupe, 443 S.W.3d 856, 891 (Tex. 2014) (declining to create a new cause\\n\\nof action, in part because the legislature had already created a “detailed and extensive”\\nstatutory scheme, “reflecting legislative policy judgments about when the government should\\nstep in to impose rights and obligations on the parties and when the parties should be free to\\ndictate their own rights and obligations vis-à-vis each other”).\\n 10\\n\\f Case: 18-40636 Document: 00515079849 Page: 11 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nconclusion that the Texas Supreme Court would not recognize a duty of care\\nowed by Walgreens to the plaintiffs in this case.\\n The plaintiffs suggest that this degree of legislative involvement actually\\ncuts in their favor, in particular the statutory prohibitions on distributing\\nprescription drugs to someone without a prescription. They disclaim reliance\\non statute to create tort liability where none would otherwise exist, arguing\\nsolely that statutory prohibitions help to more clearly define the standard of\\ncare Walgreens owed. But their reliance on statute begs the question of\\nwhether Walgreens owed a preexisting duty of care to the plaintiffs as non-\\npatient third parties.\\n To the extent that Texas courts are willing to infer a new tort duty from\\nlegislation—a rare, but not unheard-of, phenomenon 33—we disagree that the\\nstatutory prohibitions the plaintiffs cite point to a duty here. The Texas\\nSupreme Court has settled that “[t]he threshold questions in every negligence\\nper se case are whether the plaintiff belongs to the class that the statute was\\nintended to protect and whether the plaintiff’s injury is of a type that the\\nstatute was designed to prevent.” 34 We do not doubt that legislative regulation\\nof pharmacies was intended to protect “the public health, safety, and\\nwelfare.” 35 The plaintiffs argue that as members of the public, they are\\ntherefore within the class of persons that the legislature aimed to protect by\\nprohibiting the distribution of a prescription drug to someone without a\\nprescription for that drug. Nothing suggests, however, that this statutory\\n\\n\\n\\n\\n 33 See Perry v. S.N., 973 S.W.2d 301, 305–08 (Tex. 1998) (observing that the Texas\\nSupreme Court has “created a new duty by applying negligence per se on only one occasion”);\\nsee also Allen, 907 F.3d at 180 (after declining to recognize a common-law duty under Texas\\nlaw, observing that “[t]ellingly, Texas courts rarely imply a civil tort duty from a criminal\\nstatute”).\\n 34 Perry, 973 S.W.2d at 305.\\n 35 See Tex. Occ. Code § 551.002.\\n\\n 11\\n\\f Case: 18-40636 Document: 00515079849 Page: 12 Date Filed: 08/16/2019\\n\\n\\n\\n No. 18-40636\\nprohibition intended to prevent the type of harm that the plaintiffs\\nexperienced—rather than preventing harm to the members of the public who\\ningest potentially dangerous prescription drugs and suffer harm as a result. 36\\nWe therefore cannot infer from Walgreens’s alleged violation of its statutory\\nobligations that its tort duty of care extends to the third-party plaintiffs in this\\ncase.\\n ***\\n In sum, looking to the factors the Texas Supreme Court would consider—\\nin particular, the foreseeability of the harm, the presence of other protections,\\nand the danger of interference with the legislature’s balancing of public\\npolicies—we conclude that the Texas Supreme Court would not recognize a\\nduty between a pharmacy and third parties injured as a result of a customer\\ntaking the incorrect prescription. Mindful that we should not “lightly abdicate\\nour mandate to decide issues of state law when sitting in diversity,” we decline\\nto exercise our discretion to certify this issue to the Texas Supreme Court. 37\\n IV\\n We affirm the district court’s grant of summary judgment to Walgreens.\\n\\n\\n\\n\\n 36For example, this case is unlike Praesel v. Johnson, which considered whether a\\ndoctor’s violation of reporting requirements to the Texas Department of Public Safety\\ngenerated a duty of care between the doctor and a third party who was injured when the\\npatient had a seizure while driving. Praesel, 967 S.W.2d at 394–96. There, although the Texas\\nSupreme Court ultimately did not recognize a duty based on this statutory requirement, it\\nobserved that the “general public” was plainly within the class of persons protected by such\\na requirement. See id. at 395.\\n 37 In re Deepwater Horizon, 807 F.3d 689, 698 (5th Cir. 2015) (quoting Jefferson v.\\n\\nLead Indus. Ass’n, Inc., 106 F.3d 1245, 1248 (5th Cir. 1997)); see also Patterson v. Mobile Oil\\nCorp., 335 F.3d 476, 487 (5th Cir. 2003) (“As a general rule, we do not use certification as a\\npanacea for resolution of those complex or difficult state law questions which have not been\\nanswered by the highest court of the state.” (internal quotation marks omitted)).\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3676,"cells":{"id":{"kind":"number","value":4649206,"string":"4,649,206"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Chad Brackeen v. David Bernhardt"},"decision_date":{"kind":"string","value":"2019-08-16"},"docket_number":{"kind":"string","value":"18-11479"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WIENER, DENNIS, and OWEN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES L. DENNIS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"MODIFIED August 16, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 9, 2019\\n No. 18-11479\\n Lyle W. Cayce\\n Clerk\\nCHAD EVERET BRACKEEN; JENNIFER KAY BRACKEEN; STATE OF\\nTEXAS; ALTAGRACIA SOCORRO HERNANDEZ; STATE OF INDIANA;\\nJASON CLIFFORD; FRANK NICHOLAS LIBRETTI; STATE OF\\nLOUISIANA; HEATHER LYNN LIBRETTI; DANIELLE CLIFFORD,\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nDAVID BERNHARDT, SECRETARY, U.S. DEPARTMENT OF THE\\nINTERIOR; TARA SWEENEY, in her official capacity as Acting Assistant\\nSecretary for Indian Affairs; BUREAU OF INDIAN AFFAIRS; UNITED\\nSTATES DEPARTMENT OF INTERIOR; UNITED STATES OF AMERICA;\\nALEX AZAR, In his official capacity as Secretary of the United States\\nDepartment of Health and Human Services; UNITED STATES\\nDEPARTMENT OF HEALTH AND HUMAN SERVICES,\\n\\n Defendants - Appellants\\n\\n\\nCHEROKEE NATION; ONEIDA NATION; QUINAULT INDIAN NATION;\\nMORONGO BAND OF MISSION INDIANS,\\n\\n Intervenor Defendants - Appellants\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n\\n No. 18-11479\\nBefore WIENER, DENNIS, and OWEN, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n This case presents facial constitutional challenges to the Indian Child\\nWelfare Act of 1978 (ICWA) and statutory and constitutional challenges to the\\n2016 administrative rule (the Final Rule) that was promulgated by the\\nDepartment of the Interior to clarify provisions of ICWA. Plaintiffs are the\\nstates of Texas, Indiana, and Louisiana, and seven individuals seeking to adopt\\nIndian children. Defendants are the United States of America, several federal\\nagencies and officials in their official capacities, and five intervening Indian\\ntribes. Defendants moved to dismiss the complaint for lack of subject matter\\njurisdiction, but the district court denied the motion, concluding, as relevant\\nto this appeal, that Plaintiffs had Article III standing. The district court then\\ngranted summary judgment in favor of Plaintiffs, ruling that provisions of\\nICWA and the Final Rule violated equal protection, the Tenth Amendment,\\nthe nondelegation doctrine, and the Administrative Procedure Act.\\nDefendants appealed. Although we AFFIRM the district court’s ruling that\\nPlaintiffs had standing, we REVERSE the district court’s grant of summary\\njudgment to Plaintiffs and RENDER judgment in favor of Defendants.\\n BACKGROUND\\n I. The Indian Child Welfare Act (ICWA)\\n Congress enacted the Indian Child Welfare Act of 1978 (ICWA), 25\\nU.S.C. §§ 1901 et seq., to address rising concerns over “abusive child welfare\\npractices that resulted in the separation of large numbers of Indian children\\nfrom their families and tribes through adoption or foster care placement,\\nusually in non-Indian homes.” Miss. Band Choctaw Indians v. Holyfield, 490\\n\\n\\n\\n\\n 2\\n\\n No. 18-11479\\nU.S. 30, 32 (1989). Recognizing that a “special relationship” exists between the\\nUnited States and Indian tribes, Congress made the following findings:\\n Congress has plenary power over Indian affairs. 25 U.S.C. § 1901(1)\\n(citing U.S. CONST. art. I, section 8, cl. 3 (“The Congress shall have Power . . .\\nTo regulate Commerce . . . with the Indian Tribes.”)).\\n “[T]here is no resource that is more vital to the continued existence and\\nintegrity of Indian tribes than their children . . . .” Id. at § 1901(3).\\n “[A]n alarmingly high percentage of Indian families are broken up by the\\nremoval, often unwarranted, of their children from them by nontribal public\\nand private agencies and that an alarmingly high percentage of such children\\nare placed in non-Indian foster and adoptive homes and institutions.” Id. at\\n§ 1901(4).\\n “States exercising their recognized jurisdiction over Indian child custody\\nproceedings through administrative and judicial bodies, have often failed to\\nrecognize the essential tribal relations of Indian people and the cultural and\\nsocial standards prevailing in Indian communities and families.” Id. at\\n§ 1901(5).\\n In light of these findings, Congress declared that it was the policy of the\\nUnited States “to protect the best interests of Indian children and to promote\\nthe stability and security of Indian tribes and families by the establishment of\\nminimum Federal standards for the removal of Indian children from their\\nfamilies and the placement of such children in foster or adoptive homes which\\nwill reflect the unique values of Indian culture, and by providing for assistance\\nto Indian tribes in the operation of child and family service programs.” Id. at\\n§ 1902.\\n ICWA applies in state court child custody proceedings involving an\\n“Indian child,” defined as “any unmarried person who is under age eighteen\\nand is either (a) a member of an Indian tribe or (b) is eligible for membership\\n 3\\n\\n No. 18-11479\\nin an Indian tribe and is the biological child of a member of an Indian tribe.”\\nId. at § 1903(4). In proceedings for the foster care placement or termination of\\nparental rights, ICWA provides “the Indian custodian of the child and the\\nIndian child’s tribe [] a right to intervene at any point in the proceeding.” Id.\\nat § 1911(c). Where such proceedings are involuntary, ICWA requires that the\\nparent, the Indian custodian, the child’s tribe, or the Secretary of the United\\nStates Department of the Interior (Secretary or Secretary of the Interior) be\\nnotified of pending proceedings and of their right to intervene. Id. at § 1912.\\nIn voluntary proceedings for the termination of parental rights or adoptive\\nplacement of an Indian child, the parent can withdraw consent for any reason\\nprior to entry of a final decree of adoption or termination, and the child must\\nbe returned to the parent. Id. at § 1913(c). If consent was obtained through\\nfraud or duress, a parent may petition to withdraw consent within two years\\nafter the final decree of adoption and, upon a showing of fraud or duress, the\\ncourt must vacate the decree and return the child to the parent. Id. at\\n§ 1913(d). An Indian child, a parent or Indian custodian from whose custody\\nthe child was removed, or the child’s tribe may file a petition in any court of\\ncompetent jurisdiction to invalidate an action in state court for foster care\\nplacement or termination of parental rights if the action violated any provision\\nof ICWA §§ 1911–13. Id. at § 1914.\\n ICWA further sets forth placement preferences for foster care,\\npreadoptive, and adoptive proceedings involving Indian children. Section 1915\\nrequires that “[i]n any adoptive placement of an Indian child under State law,\\na preference shall be given, in the absence of good cause to the contrary, to a\\nplacement with: (1) a member of the child’s extended family; (2) other members\\nof the Indian child’s tribe; or (3) other Indian families.” Id. at § 1915(a).\\nSimilar requirements are set for foster care or preadoptive placements. Id. at\\n§ 1915(b). If a tribe establishes by resolution a different order of preferences,\\n 4\\n\\n No. 18-11479\\nthe state court or agency effecting the placement “shall follow [the tribe’s] order\\nso long as the placement is the least restrictive setting appropriate to the\\nparticular needs of the child.” Id. at § 1915(c).\\n The state in which an Indian child’s placement was made shall maintain\\nrecords of the placement, which shall be made available at any time upon\\nrequest by the Secretary or the child’s tribe. Id. at § 1915(e). A state court\\nentering a final decree in an adoptive placement “shall provide the Secretary\\nwith a copy of the decree or order” and information as necessary regarding “(1)\\nthe name and tribal affiliation of the child; (2) the names and addresses of the\\nbiological parents; (3) the names and addresses of the adoptive parents; and\\n(4) the identity of any agency having files or information relating to such\\nadoptive placement.” Id. at § 1951(a). ICWA’s severability clause provides\\nthat “[i]f any provision of this chapter or the applicability thereof is held\\ninvalid, the remaining provisions of this chapter shall not be affected thereby.”\\nId. at § 1963.\\n II. The Final Rule\\n ICWA provides that “the Secretary [of the Interior] shall promulgate\\nsuch rules and regulations as may be necessary to carry out [its] provisions.”\\n25 U.S.C. § 1952. In 1979, the Bureau of Indian Affairs (BIA) promulgated\\nguidelines (the “1979 Guidelines”) intended to assist state courts in\\nimplementing ICWA but without “binding legislative effect.” Guidelines for\\nState Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26,\\n1979). The 1979 Guidelines left the “primary responsibility” of interpreting\\ncertain language in ICWA “with the [state] courts that decide Indian child\\ncustody cases.” Id. However, in June 2016, the BIA promulgated the Final\\nRule to “clarify the minimum Federal standards governing implementation of\\n[ICWA]” and to ensure that it “is applied in all States consistent with the Act’s\\nexpress language, Congress’s intent in enacting the statute, and to promote\\n 5\\n\\n No. 18-11479\\nthe stability and security of Indian tribes and families.” 25 C.F.R. § 23.101;\\nIndian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,868 (June 14,\\n2016). The Final Rule explained that while the BIA “initially hoped that\\nbinding regulations would not be necessary to carry out [ICWA], a third of a\\ncentury of experience has confirmed the need for more uniformity in the\\ninterpretation and application of this important Federal law.” 81 Fed. Reg. at\\n38,782.\\n The Final Rule provides that states have the responsibility of\\ndetermining whether a child is an “Indian child” subject to ICWA’s\\nrequirements. 25 C.F.R. §§ 23.107–22; 81 Fed. Reg. at 38,778, 38,869–73. The\\nFinal Rule also sets forth notice and recordkeeping requirements for states, see\\n25 U.S.C. §§ 23.140–41; 81 Fed. Reg. at 38,778, 38,875–76, and requirements\\nfor states and individuals regarding voluntary proceedings and parental\\nwithdrawal of consent, see 25 C.F.R. §§ 23.124–28; 81 Fed. Reg. at 38,778,\\n38,873–74. The Final Rule also restates ICWA’s placement preferences and\\nclarifies when they apply and when states may depart from them. See 25\\nC.F.R. §§ 23.129–32; 81 Fed. Reg. at 38,778, 38,874–75.\\n III. The Instant Action\\n A. Parties\\n 1. Plaintiffs\\n Plaintiffs in this action are the states of Texas, Louisiana, and Indiana, 1\\n(collectively, the “State Plaintiffs”), and seven individual Plaintiffs—Chad and\\nJennifer Brackeen (the “Brackeens”), Nick and Heather Libretti (the\\n“Librettis”), Altagracia Socorro Hernandez (“Hernandez”), and Jason and\\n\\n\\n 1 There are three federally recognized tribes in Texas: the Yselta del Sur Pueblo, the\\nKickapoo Tribe, and the Alabama-Coushatta Tribe. There are four federally recognized\\ntribes in Louisiana: the Chitimacha Tribe, the Coushatta Tribe, the Tunica-Biloxi Tribe, and\\nthe Jena Band of Choctaw Indians. There is one federally recognized tribe in Indiana: the\\nPokagon Band of Potawatomi Indians.\\n 6\\n\\n No. 18-11479\\nDanielle Clifford (the “Cliffords”) (collectively, “Individual Plaintiffs”) (together\\nwith State Plaintiffs, “Plaintiffs”).\\n a. The Brackeens & A.L.M.\\n At the time their initial complaint was filed in the district court, the\\nBrackeens sought to adopt A.L.M., who falls within ICWA’s definition of an\\n“Indian Child.” His biological mother is an enrolled member of the Navajo\\nNation and his biological father is an enrolled member of the Cherokee Nation.\\nWhen A.L.M. was ten months old, Texas’s Child Protective Services (“CPS”)\\nremoved him from his paternal grandmother’s custody and placed him in foster\\ncare with the Brackeens. Both the Navajo Nation and the Cherokee Nation\\nwere notified pursuant to ICWA and the Final Rule. A.L.M. lived with the\\nBrackeens for more than sixteen months before they sought to adopt him with\\nthe support of his biological parents and paternal grandmother. In May 2017,\\na Texas court, in voluntary proceedings, terminated the parental rights of\\nA.L.M.’s biological parents, making him eligible for adoption under Texas law.\\nShortly thereafter, the Navajo Nation notified the state court that it had\\nlocated a potential alternative placement for A.L.M. with non-relatives in New\\nMexico, though this placement ultimately failed to materialize. In July 2017,\\nthe Brackeens filed an original petition for adoption, and the Cherokee Nation\\nand Navajo Nation were notified in compliance with ICWA. The Navajo Nation\\nand the Cherokee Nation reached an agreement whereby the Navajo Nation\\nwas designated as A.L.M.’s tribe for purposes of ICWA’s application in the state\\nproceedings. No one intervened in the Texas adoption proceeding or otherwise\\nformally sought to adopt A.L.M. The Brackeens entered into a settlement with\\nthe Texas state agency and A.L.M.’s guardian ad litem specifying that, because\\nno one else sought to adopt A.L.M., ICWA’s placement preferences did not\\napply. In January 2018, the Brackeens successfully petitioned to adopt A.L.M.\\nThe Brackeens initially alleged in their complaint that they would like to\\n 7\\n\\n No. 18-11479\\ncontinue to provide foster care for and possibly adopt additional children in\\nneed, but their experience adopting A.L.M. made them reluctant to provide\\nfoster care for other Indian children in the future. Since their complaint was\\nfiled, the Brackeens have sought to adopt A.L.M.’s sister, Y.R.J. in Texas state\\ncourt. Y.R.J., like her brother, is an Indian Child for purposes of ICWA. The\\nNavajo Nation contests the adoption. On February 2, 2019, the Texas court\\ngranted the Brackeens’ motion to declare ICWA inapplicable as a violation of\\nthe Texas constitution, but “conscientiously refrain[ed]” from ruling on the\\nBrackeens’ claims under the United States Constitution pending our\\nresolution of the instant appeal.\\n b. The Librettis & Baby O.\\n The Librettis live in Nevada and sought to adopt Baby O. when she was\\nborn in March 2016. Baby O.’s biological mother, Hernandez, wished to place\\nBaby O. for adoption at her birth, though Hernandez has continued to be a part\\nof Baby O.’s life and she and the Librettis visit each other regularly. Baby O.’s\\nbiological father, E.R.G., descends from members of the Ysleta del sur Pueblo\\nTribe (the “Pueblo Tribe”), located in El Paso, Texas, and was a registered\\nmember at the time Baby O. was born. The Pueblo Tribe intervened in the\\nNevada custody proceedings seeking to remove Baby O. from the Librettis.\\nOnce the Librettis joined the challenge to the constitutionality of the ICWA\\nand the Final Rule, the Pueblo Tribe indicated that it was willing settle. The\\nLibrettis agreed to a settlement with the tribe that would permit them to\\npetition for adoption of Baby O. The Pueblo Tribe agreed not to contest the\\nLibrettis’ adoption of Baby O., and on December 19, 2018, the Nevada state\\ncourt issued a decree of adoption, declaring that the Librettis were Baby O.’s\\nlawful parents. Like the Brackeens, the Librettis alleged that they intend to\\nprovide foster care for and possibly adopt additional children in need but are\\nreluctant to foster Indian children after this experience.\\n 8\\n\\n No. 18-11479\\n c. The Cliffords & Child P.\\n The Cliffords live in Minnesota and seek to adopt Child P., whose\\nmaternal grandmother is a registered member of the White Earth Band of\\nOjibwe Tribe (the “White Earth Band”). Child P. is a member of the White\\nEarth Band for purposes of ICWA’s application in the Minnesota state court\\nproceedings. Pursuant to ICWA section 1915’s placement preferences, county\\nofficials removed Child P. from the Cliffords’ custody and, in January 2018,\\nplaced her in the care of her maternal grandmother, whose foster license had\\nbeen revoked. Child P.’s guardian ad litem supports the Cliffords’ efforts to\\nadopt her and agrees that the adoption is in Child P.’s best interest. The\\nCliffords and Child P. remain separated, and the Cliffords face heightened\\nlegal barriers to adopting her. On January 17, 2019, the Minnesota court\\ndenied the Cliffords’ motion for adoptive placement.\\n 2. Defendants\\n Defendants are the United States of America; the United States\\nDepartment of the Interior and its Secretary Ryan Zinke, in his official\\ncapacity; the BIA and its Director Bryan Rice, in his official capacity; the BIA\\nPrincipal Assistant Secretary for Indian Affairs John Tahsuda III, in his\\nofficial capacity; and the Department of Health and Human Services (“HHS”)\\nand its Secretary Alex M. Azar II, in his official capacity (collectively the\\n“Federal Defendants”). Shortly after this case was filed in the district court,\\nthe Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo\\nBand of Mission Indians (collectively, the “Tribal Defendants”) moved to\\nintervene, and the district court granted the motion. On appeal, we granted\\n\\n\\n\\n\\n 9\\n\\n No. 18-11479\\nthe Navajo Nation’s motion to intervene as a defendant 2 (together with Federal\\nand Tribal Defendants, “Defendants”).\\n B. Procedural History\\n Plaintiffs filed the instant action against the Federal Defendants in\\nOctober 2017, alleging that the Final Rule and certain provisions of ICWA are\\nunconstitutional and seeking injunctive and declaratory relief. Plaintiffs\\nargued that ICWA and the Final Rule violated equal protection and\\nsubstantive due process under the Fifth Amendment and the\\nanticommandeering doctrine that arises from the Tenth Amendment.\\nPlaintiffs additionally sought a declaration that provisions of ICWA and the\\nFinal Rule violated the nondelegation doctrine and the Administrative\\nProcedure Act (APA). Defendants moved to dismiss, alleging that Plaintiffs\\nlacked standing. The district court denied the motion. All parties filed cross-\\nmotions for summary judgment. The district court granted Plaintiffs’ motion\\nfor summary judgment in part, concluding that ICWA and the Final Rule\\nviolated equal protection, the Tenth Amendment, and the nondelegation\\ndoctrine, and that the challenged portions of the Final Rule were invalid under\\nthe APA. 3 Defendants appealed. A panel of this court subsequently stayed the\\ndistrict court’s judgment pending further order of this court. In total, fourteen\\namicus briefs were filed in this court, including a brief in support of Plaintiffs\\nand affirmance filed by the state of Ohio; and a brief in support of Defendants\\nand reversal filed by the states of California, Alaska, Arizona, Colorado, Idaho,\\n\\n\\n\\n 2 The Navajo Nation had previously moved to intervene twice in the district court.\\nThe first motion was for the limited purpose of seeking dismissal pursuant to Rule 19, which\\nthe district court denied. The Navajo Nation filed a second motion to intervene for purposes\\nof appeal after the district court’s summary judgment order. The district court deferred\\ndecision on the motion pending further action by this court, at which time the Navajo Nation\\nfiled the motion directly with this court.\\n 3 The district court denied Plaintiffs’ substantive Due Process claim, from which\\n\\nPlaintiffs do not appeal.\\n 10\\n\\n No. 18-11479\\nIllinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi,\\nMontana, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Virginia,\\nWashington, and Wisconsin.\\n STANDARD OF REVIEW\\n We review a district court’s grant of summary judgment de novo. See\\nTexas v. United States, 497 F.3d 491, 495 (5th Cir. 2007). Summary judgment\\nis appropriate when the movant has demonstrated “that there is no genuine\\ndispute as to any material fact and the movant is entitled to judgment as a\\nmatter of law.” FED. R. CIV. P. 56(a). A genuine dispute of material fact exists\\n“if the evidence is such that a reasonable jury could return a verdict for the\\nnonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).\\n DISCUSSION\\n I. Article III Standing\\n Defendants first contend that Plaintiffs lack standing to challenge ICWA\\nand the Final Rule. The district court denied Defendants’ motion to dismiss\\non this basis, concluding that Individual Plaintiffs had standing to bring an\\nequal protection claim; State Plaintiffs had standing to challenge provisions of\\nICWA and the Final Rule on the grounds that they violated the Tenth\\nAmendment and the nondelegation doctrine; and all Plaintiffs had standing to\\nbring an APA claim challenging the validity of the Final Rule.\\n Article III limits the power of federal courts to “Cases” and\\n“Controversies.” See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing\\nU.S. CONST. art. III, § 2). “Standing to sue is a doctrine rooted in the traditional\\nunderstanding of a case or controversy.” Id. To meet the Article III standing\\nrequirement, plaintiffs must demonstrate “(1) an injury that is (2) fairly\\ntraceable to the defendant’s allegedly unlawful conduct and that is (3) likely to\\nbe redressed by the requested relief.” Lujan v. Defs. of Wildlife, 504 U.S. 555,\\n590 (1992) (internal quotations omitted). A plaintiff seeking equitable relief\\n 11\\n\\n No. 18-11479\\nmust demonstrate a likelihood of future injury in addition to past harm. See\\nCity of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). This injury must be\\n“concrete and particularized” and “actual or imminent, not conjectural or\\nhypothetical.” See Lujan, 504 U.S. at 560 (cleaned up). “[S]tanding is not\\ndispensed in gross,” and “a plaintiff must demonstrate standing for each claim\\nhe seeks to press and for each form of relief that is sought.” Town of Chester,\\nN.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. Fed.\\nElection Comm’n, 554 U.S. 724, 734 (2008)). “[T]he presence of one party with\\nstanding is sufficient to satisfy Article III’s case-or-controversy requirement.”\\nRumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2\\n(2006). “This court reviews questions of standing de novo.” Nat’l Rifle Ass’n of\\nAm., Inc. v. McCraw, 719 F.3d 338, 343 (5th Cir. 2013).\\n A. Standing to Bring Equal Protection Claim\\n Plaintiffs challenged ICWA sections 1915(a)–(b), 1913(d), and 1914 and\\nFinal Rule sections 23.129–32 on equal protection grounds, alleging that these\\nprovisions impose regulatory burdens on non-Indian families seeking to adopt\\nIndian children that are not similarly imposed on Indian families who seek to\\nadopt Indian children. The district court concluded that Individual Plaintiffs\\nsuffered and continued to suffer injuries when their efforts to adopt Indian\\nchildren were burdened by ICWA and the Final Rule; that their injuries were\\nfairly traceable to ICWA and the Final Rule because these authorities\\nmandated state compliance; and that these injuries were redressable because\\nif ICWA and the Final Rule were invalidated, then state courts would no longer\\nbe required to follow them. Defendants disagree, arguing that the Individual\\nPlaintiffs cannot demonstrate an injury in fact or redressability and thus lack\\nstanding to bring an equal protection claim. For the reasons below, we\\nconclude that the Brackeens have standing to assert an equal protection claim\\nas to ICWA sections 1915(a)–(b) and Final Rule sections 23.129–32, but as\\n 12\\n\\n No. 18-11479\\ndiscussed below, not as to ICWA sections 1913–14. Accordingly, because one\\nPlaintiff has standing, the “case-or-controversy requirement” is satisfied as to\\nthis claim, and we do not analyze whether any other Individual Plaintiff has\\nstanding to raise it. 4 See Rumsfeld, 547 U.S. at 53 n.2.\\n The district court concluded that ICWA section 1913(d), which allows a\\nparent to petition the court to vacate a final decree of adoption on the grounds\\nthat consent was obtained through fraud or duress, left the Brackeens’\\nadoption of A.L.M. vulnerable to collateral attack for two years. Defendants\\nargue that section 1914, 5 and not section 1913(d), applies to the Brackeens’\\nstate court proceedings and that, in any event, an injury premised on potential\\nfuture collateral attack under either provision is too speculative. We need not\\ndecide which provision applies here, as neither the Brackeens nor any of the\\nIndividual Plaintiffs havesuffered an injury under either provision. Plaintiffs\\ndo not assert that A.L.M.’s biological parents, the Navajo Nation, or any other\\nparty seeks to invalidate the Brackeens’ adoption of A.L.M. under either\\nprovision. Plaintiffs’ proffered injury under section 1913 or section 1914 is\\ntherefore too speculative to support standing. See Lujan, 504 U.S. at 560; see\\nalso Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (“[T]hreatened\\ninjury must be certainly impending to constitute injury in fact, and []\\n[a]llegations of possible future injury are not sufficient.” (cleaned up)). To the\\nextent Plaintiffs argue that an injury arises from their attempts to avoid\\n\\n\\n 4 State Plaintiffs argue that they have standing to bring an equal protection challenge\\nin parens patriae on behalf of their citizens. We disagree. See South Carolina v. Katzenbach,\\n383 U.S. 301, 324 (1966) (“[A] State [does not] have standing as the parent of its citizens to\\ninvoke [the Fifth Amendment Due Process Clause] against the Federal Government, the\\nultimate parens patriae of every American citizen.”).\\n 5 “Any Indian child who is the subject of any action for foster care placement or\\n\\ntermination of parental rights under State law, any parent or Indian custodian from whose\\ncustody such child was removed, and the Indian child’s tribe may petition any court of\\ncompetent jurisdiction to invalidate such action upon a showing that such action violated any\\nprovision of sections 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914.\\n 13\\n\\n No. 18-11479\\ncollateral attack under section 1914 by complying with sections 1911–13,\\n“costs incurred to avoid injury are insufficient to create standing” where the\\ninjury is not certainly impending. See Clapper, 568 U.S. at 417.\\n The district court also concluded that ICWA section 1915, and\\nsections 23.129–32 of the Final Rule, which clarify section 1915, gave rise to\\nan injury from an increased regulatory burden. We agree. Prior to the\\nfinalization of the Brackeens’ adoption of A.L.M., the Navajo Nation notified\\nthe state court that it had located a potential alternative placement for A.L.M.\\nin New Mexico. Though that alternative placement ultimately failed to\\nmaterialize, the regulatory burdens ICWA section 1915 and Final Rule\\nsections 23.129–32 imposed on the Brackeens in A.L.M.’s adoption\\nproceedings, which were ongoing at the time the complaint was filed, are\\nsufficient to demonstrate injury. See Contender Farms, L.L.P. v. U.S. Dep’t of\\nAgric., 779 F.3d 258, 266 (5th Cir. 2015) (“An increased regulatory burden\\ntypically satisfies the injury in fact requirement.”); see also Rockwell Int’l Corp.\\nv. United States, 549 U.S. 457, 473–74 (2007) (standing is assessed at the time\\nthe complaint was filed); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.\\n(TOC), Inc., 528 U.S. 167, 184 (2000) (discussing Lyons, 461 U.S. at 108, and\\nfinding the injury requirement satisfied where the alleged harmful conduct\\nwas occurring when the complaint was filed).\\n Defendants contend that the Brackeens’ challenge to section 1915 and\\nsections 23.129–32 is moot. They argue that, because the Brackeens’ adoption\\nof A.L.M. was finalized in January 2018 and the Navajo Nation will not seek\\nto challenge the adoption, section 1915’s placement preferences no longer\\napply in A.L.M.’s adoption proceedings. Plaintiffs argue that section 1915’s\\nplacement preferences impose on them the ongoing injury of increased\\nregulatory burdens in their proceedings to adopt A.L.M.’s sister, Y.R.J., which\\nthe Navajo Nation currently opposes in Texas state court.\\n 14\\n\\n No. 18-11479\\n “A corollary to this case-or-controversy requirement is that an actual\\ncontroversy must be extant at all stages of review, not merely at the time the\\ncomplaint is filed.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71\\n(2013). “[A] case is moot when the issues presented are no longer live or the\\nparties lack a legally cognizable interest in the outcome.” Powell v.\\nMcCormack, 395 U.S. 486, 496 (1969)(internal quotation marks omitted).\\nHowever, mootness will not render a case non-justiciable where the dispute is\\none that is “capable of repetition, yet evading review.” See Murphy v. Hunt,\\n455 U.S. 478, 482 (1982). “That exception applies where (1) the challenged\\naction is in its duration too short to be fully litigated prior to cessation or\\nexpiration, and (2) there is a reasonable expectation that the same complaining\\nparty will be subject to the same action again.” Davis v. Fed. Election Comm’n,\\n554 U.S. 724, 735 (2008) (internal citations and quotations omitted). Here, the\\nBrackeens were unable to fully litigate a challenge to section 1915 before\\nsuccessfully adopting A.L.M. Additionally, they have demonstrated a\\nreasonable expectation that they will be subject to section 1915’s regulatory\\nburdens in their adoption proceedings involving A.L.M.’s sister, Y.R.J. Thus,\\nthe Brackeens’ challenge to section 1915 is justiciable on the grounds that it is\\ncapable of repetition, yet evading review. See Hunt, 455 U.S. at 482.\\n Having thus found an injury with respect to ICWA section 1915 and\\nFinal Rule sections 23.129–32, we consider whether causation and\\nredressability are met here. See Lujan, 504 U.S. at 590. The Brackeens’\\nalleged injury is fairly traceable to the actions of at least some of the Federal\\nDefendants, who bear some responsibility for the regulatory burdens imposed\\nby ICWA and the Final Rule. See Contender Farms, L.L.P., 779 F.3d at 266\\n(noting that causation “flow[ed] naturally from” a regulatory injury).\\nAdditionally, the Brackeens have demonstrated a likelihood that their injury\\nwill be redressed by a favorable ruling of this court. In the Brackeens’ ongoing\\n 15\\n\\n No. 18-11479\\nproceedings to adopt Y.R.J., the Texas court has indicated that it will refrain\\nfrom ruling on the Brackeens’ federal constitutional claims pending a ruling\\nfrom this court. Accordingly, Plaintiffs have standing to bring an equal\\nprotection claim challenging ICWA section 1915(a)–(b) and Final Rule sections\\n23.129–32. See Lujan, 504 U.S. at 590; Rumsfeld, 547 U.S. at 53 n.2.\\n B. Standing to Bring Administrative Procedure Act Claim\\n Plaintiffs first argue that ICWA does not authorize the Secretary of the\\nInterior to promulgate binding rules and regulations, and the Final Rule is\\ntherefore invalid under the APA. The district court ruled that State Plaintiffs\\nhad standing to bring this claim, determining that the Final Rule injured State\\nPlaintiffs by intruding upon their interests as quasi-sovereigns to control the\\ndomestic affairs within their states. 6 A state may be entitled to “special\\nsolicitude” in our standing analysis if the state is vested by statute with a\\nprocedural right to file suit to protect an interest and the state has suffered an\\ninjury to its “quasi-sovereign interests.” Massachusetts v. EPA, 549 U.S. 497,\\n518–20 (2007) (holding that the Clean Air Act provided Massachusetts a\\nprocedural right to challenge the EPA’s rulemaking, and Massachusetts\\nsuffered an injury in its capacity as a quasi-sovereign landowner due to rising\\nsea levels associated with climate change). Applying Massachusetts, this court\\nin Texas v. United States held that Texas had standing to challenge the\\nDepartment of Homeland Security’s implementation and expansion of the\\nDeferred Action for Childhood Arrivals program (DACA) under the APA. See\\n809 F.3d 134, 152 (5th Cir. 2015). This court reasoned that Texas was entitled\\nto special solicitude on the grounds that the APA created a procedural right to\\n\\n\\n\\n 6The district court also found an injury based on the Social Security Act’s conditioning\\nof funding on states’ compliance with ICWA. However, because we find that Plaintiffs have\\nstanding on other grounds, we decline to decide whether they have demonstrated standing\\nbased on an alleged injury caused by the SSA.\\n 16\\n\\n No. 18-11479\\nchallenge the DHS’s actions, and DHS’s actions affected states’ sovereign\\ninterest in creating and enforcing a legal code. See id. at 153 (internal\\nquotations omitted).\\n Likewise, here, the APA provides State Plaintiffs a procedural right to\\nchallenge the Final Rule. See id.; 5 U.S.C. § 702. Moreover, State Plaintiffs\\nallege that the Final Rule affects their sovereign interest in controlling child\\ncustody proceedings in state courts. See Texas, 809 F.3d at 153 (recognizing\\nthat, pursuant to a sovereign interest in creating and enforcing a legal code,\\nstates may have standing based on, inter alia, federal preemption of state law).\\nThus, State Plaintiffs are entitled to special solicitude in our standing inquiry.\\nWith this in mind, we find that the elements of standing are satisfied. If, as\\nState Plaintiffs alleged, the Secretary promulgated a rule binding on states\\nwithout the authority to do so, then State Plaintiffs have suffered a concrete\\ninjury to their sovereign interest in controlling child custody proceedings that\\nwas caused by the Final Rule. Additionally, though state courts and agencies\\nare not bound by this court’s precedent, a favorable ruling from this court\\nwould remedy the alleged injury to states by making their compliance with\\nICWA and the Final Rule optional rather than compulsory. See Massachusetts,\\n549 U.S. at 521 (finding redressability where the requested relief would prompt\\nthe agency to “reduce th[e] risk” of harm to the state).\\n C. Standing to Bring Tenth Amendment Claim\\n For similar reasons, the district court found, and we agree, that State\\nPlaintiffs have standing to challenge provisions of ICWA and the Final Rule\\nunder the Tenth Amendment. The imposition of regulatory burdens on State\\nPlaintiffs is sufficient to demonstrate an injury to their sovereign interest in\\ncreating and enforcing a legal code to govern child custody proceedings in state\\ncourts. See Texas, 809 F.3d at 153. Additionally, the causation and\\nredressability requirements are satisfied here, as a favorable ruling from this\\n 17\\n\\n No. 18-11479\\ncourt would likely redress State Plaintiffs’ injury by lifting the mandatory\\nburdens ICWA and the Final Rule impose on states. See Lujan, 504 U.S. at\\n590.\\n D. Standing to Bring Nondelegation Claim\\n Finally, Plaintiffs contend that ICWA section 1915(c), which allows a\\ntribe to establish a different order of section 1915(a)’s placement preferences,\\nis an impermissible delegation of legislative power that binds State Plaintiffs.\\nDefendants argue that State Plaintiffs cannot demonstrate an injury, given the\\nlack of evidence that a tribe’s reordering of section 1915(a)’s placement\\npreferences has affected any children in Texas, Indiana, or Louisiana or that\\nsuch impact is “certainly impending.” State Plaintiffs respond that tribes can\\nchange ICWA’s placement preferences at any time and that at least one tribe,\\nthe Alabama-Coushatta Tribe of Texas, has already done so. We conclude that\\nState Plaintiffs have demonstrated injury and causation with respect to this\\nclaim, as State Plaintiffs’ injury from the Alabama-Coushatta Tribe’s decision\\nto depart from ICWA section 1915’s placement preferences is concrete and\\nparticularized and not speculative. See Lujan, 504 U.S. at 560. Moreover, a\\nfavorable ruling from this court would redress State Plaintiffs’ injury by\\nmaking a state’s compliance with a tribe’s alternative order of preferences\\nunder ICWA section 1915(c) optional rather than mandatory. See id.\\n Accordingly, having found that State Plaintiffs have standing on the\\naforementioned claims, we proceed to the merits of these claims. We note at\\nthe outset that ICWA is entitled to a “presumption of constitutionality,” so long\\nas Congress enacted the statute “based on one or more of its powers\\nenumerated in the Constitution.” See United States v. Morrison, 529 U.S. 598,\\n607 (2000). “Due respect for the decisions of a coordinate branch of\\nGovernment demands that we invalidate a congressional enactment only upon\\n\\n\\n 18\\n\\n No. 18-11479\\na plain showing that Congress has exceeded its constitutional bounds.” Id.\\n(citing, among others, United States v. Harris, 106 U.S. 629, 635 (1883)).\\n II. Equal Protection\\n The Equal Protection Clause of the Fourteenth Amendment prohibits\\nstates from “deny[ing] to any person within its jurisdiction the equal protection\\nof the laws.” U.S. CONST., amend. 14, § 1. This clause is implicitly incorporated\\ninto the Fifth Amendment’s guarantee of due process. See Bolling v. Sharpe,\\n347 U.S. 497, 499 (1954). We apply the same analysis with respect to equal\\nprotection claims under the Fifth and Fourteenth Amendments. See Richard\\nv. Hinson, 70 F.3d 415, 417 (5th Cir. 1995). In evaluating an equal protection\\nclaim, strict scrutiny applies to laws that rely on classifications of persons\\nbased on race. See id. But where the classification is political, rational basis\\nreview applies. See Morton v. Mancari, 417 U.S. 535, 555 (1974). The district\\ncourt granted summary judgment on behalf of Plaintiffs, concluding that\\nsection 1903(4)—setting forth ICWA’s definition of “Indian Child” for purposes\\nof determining when ICWA applies in state child custody proceedings—was a\\nrace-based classification that could not withstand strict scrutiny. 7 On appeal,\\nthe parties disagree as to whether section 1903(4)’s definition of “Indian Child”\\nis a political or race-based classification and which level of scrutiny applies.\\n“We review the constitutionality of federal statutes de novo.” Nat’l Rifle Ass’n\\n\\n\\n\\n\\n 7 As described above, we conclude that Plaintiffs have standing to challenge ICWA\\nsection 1915(a)–(b) and Final Rule sections 23.129–32 on equal protection grounds. The\\ndistrict court’s analysis of whether the ICWA classification was political or race-based focused\\non ICWA section 1903(4), presumably because section 1903(4) provides a threshold definition\\nof “Indian child” that must be met for any provision of ICWA to apply in child custody\\nproceedings in state court. Because we are satisfied that our analysis would produce the\\nsame result with respect to section 1903(4) and the specific provisions Plaintiffs have\\nstanding to challenge, we similarly confine our discussion of whether ICWA presents a\\npolitical or race-based classification to section 1903(4).\\n 19\\n\\n No. 18-11479\\nof Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d\\n185, 192 (5th Cir. 2012).\\n A. Level of Scrutiny\\n We begin by determining whether ICWA’s definition of “Indian child” is\\na race-based or political classification and, consequently, which level of\\nscrutiny applies. The district court concluded that ICWA’s “Indian Child”\\ndefinition was a race-based classification. We conclude that this was error.\\nCongress has exercised plenary power “over the tribal relations of the Indians\\n. . . from the beginning, and the power has always been deemed a political one,\\nnot subject to be controlled by the judicial department of the government.”\\nLone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903). The Supreme Court’s\\ndecisions “leave no doubt that federal legislation with respect to Indian tribes\\n. . . is not based upon impermissible racial classifications.” United States v.\\nAntelope, 430 U.S. 641, 645 (1977). “Literally every piece of legislation dealing\\nwith Indian tribes and reservations . . . single[s] out for special treatment a\\nconstituency of tribal Indians living on or near reservations.” Mancari, 417\\nU.S. at 552. “If these laws, derived from historical relationships and explicitly\\ndesigned to help only Indians, were deemed invidious racial discrimination, an\\nentire Title of the United States Code (25 U.S.C.) would be effectively erased\\nand the solemn commitment of the Government toward the Indians would be\\njeopardized.” Id.\\n In Morton v. Mancari, the Supreme Court rejected a challenge to a law\\naffording to qualified Indian applicants—those having one-fourth or more\\ndegree Indian blood with membership in a federally recognized tribe 8—a hiring\\n\\n\\n 8 The United States currently recognizes 573 Tribal entities. See 84 Fed. Reg. 1,200\\n(Feb. 1, 2019). Federal recognition “is a formal political act confirming the tribe’s existence\\nas a distinct political society, and institutionalizing the government-to-government\\nrelationship between the tribe and the federal government.” See California Valley Miwok\\nTribe v. United States, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (quoting COHEN’S HANDBOOK OF\\n 20\\n\\n No. 18-11479\\npreference over non-Indians within the BIA. Id. at 555. The Court recognized\\nthat central to the resolution of the issue was “the unique legal status of Indian\\ntribes under federal law and upon the plenary power of Congress . . . to legislate\\non behalf of federally recognized Indian tribes.” Id. at 551. It reasoned that\\nthe BIA’s hiring preference was “granted to Indians not as a discrete racial\\ngroup, but, rather, as members of quasi-sovereign tribal entities whose lives\\nand activities are governed by the BIA in a unique fashion.” Id. at 554. The\\npreference was thus a non-racial “employment criterion reasonably designed\\nto further the cause of Indian self-government and to make the BIA more\\nresponsive to the needs of its constituent groups. It [was] directed to\\nparticipation by the governed in the governing agency.” Id. at 553–54. The\\ndisadvantages to non-Indians resulting from the hiring preferences were an\\nintentional and “desirable feature of the entire program for self-government.” 9\\nId. at 544.\\n\\n\\n\\n\\nFEDERAL INDIAN LAW § 3.02[3], at 138 (2005 ed.) (internal quotation marks omitted)). It “[i]s\\na prerequisite to the protection, services, and benefits of the Federal Government available\\nto those that qualify.” 25 C.F.R. § 83.2.\\n 9 Plaintiffs argue that, unlike the law in Mancari, ICWA is not a law promoting tribal\\n\\nself-governance. However, prior to enacting ICWA, Congress considered testimony from the\\nTribal Chief of the Mississippi Band of Choctaw Indians about the devastating impacts of\\nremoving Indian children from tribes and placing them for adoption and foster care in non-\\nIndian homes:\\n Culturally, the chances of Indian survival are significantly reduced if our\\n children, the only real means for the transmission of the tribal heritage, are to\\n be raised in non-Indian homes and denied exposure to the ways of their People.\\n Furthermore, these practices seriously undercut the tribes’ ability to continue\\n as self-governing communities. Probably in no area is it more important that\\n tribal sovereignty be respected than in an area as socially and culturally\\n determinative as family relationships.\\nHolyfield, 490 U.S. at 34. This testimony undoubtedly informed Congress’s finding that\\nchildren are the most vital resource “to the continued existence and integrity of Indian\\ntribes.” 25 U.S.C. § 1901(3). Thus, interpreting ICWA as related to tribal self-government\\nand the survival of tribes makes the most sense in light of Congress’s explicit intent in\\nenacting the statute. See id.\\n 21\\n\\n No. 18-11479\\n The district court construed Mancari narrowly and distinguished it for\\ntwo primary reasons: First, the district court found that the law in Mancari\\nprovided special treatment “only to Indians living on or near reservations.”\\nSecond, the district court concluded that ICWA’s membership eligibility\\nstandard for an Indian child does not rely on actual tribal membership as did\\nthe statute in Mancari. The district court reasoned that, whereas the law in\\nMancari “applied ‘only to members of ‘federally recognized’ tribes which\\noperated to exclude many individuals who are racially to be classified as\\nIndians,’” ICWA’s definition of “Indian child” extended protection to children\\nwho were eligible for membership in a federally recognized tribe and had a\\nbiological parent who was a member of a tribe. The district court, citing the\\ntribal membership laws of several tribes, including the Navajo Nation,\\nconcluded that “[t]his means one is an Indian child if the child is related to a\\ntribal ancestor by blood.”\\n We disagree with the district court’s reasoning and conclude that\\nMancari controls here. As to the district court’s first distinction, Mancari’s\\nholding does not rise or fall with the geographical location of the Indians\\nreceiving “special treatment.” See Mancari, 417 U.S. at 552. The Supreme\\nCourt has long recognized Congress’s broad power to regulate Indians and\\nIndian tribes on and off the reservation. See e.g., United States v. McGowan,\\n302 U.S. 535, 539 (1938) (“Congress possesses the broad power of legislating\\nfor the protection of the Indians wherever they may be within the territory of\\nthe United States.”); Perrin v. United States, 232 U.S. 478, 482 (1914)\\n(acknowledging Congress’s power to regulate Indians “whether upon or off a\\nreservation and whether within or without the limits of a state”).\\n Second, the district court concluded that, unlike the statute in Mancari,\\nICWA’s definition of Indian child extends to children who are merely eligible\\nfor tribal membership because of their ancestry. However, ICWA’s definition\\n 22\\n\\n No. 18-11479\\nof “Indian child” is not based solely on tribal ancestry or race. ICWA defines\\nan “Indian child” as “any unmarried person who is under age eighteen and is\\neither (a) a member of an Indian tribe or (b) is eligible for membership in an\\nIndian tribe and is the biological child of a member of an Indian tribe.” 25\\nU.S.C. § 1903(4). As Defendants explain, under some tribal membership laws,\\neligibility extends to children without Indian blood, such as the descendants of\\nformer slaves of tribes who became members after they were freed, or the\\ndescendants of adopted white persons. Accordingly, a child may fall under\\nICWA’s membership eligibility standard because his or her biological parent\\nbecame a member of a tribe, despite not being racially Indian. Additionally,\\nmany racially Indian children, such as those belonging to non-federally\\nrecognized tribes, do not fall within ICWA’s definition of “Indian child.”\\nConditioning a child’s eligibility for membership, in part, on whether a\\nbiological parent is a member of the tribe is therefore not a proxy for race, as\\nthe district court concluded, but rather for not-yet-formalized tribal affiliation,\\nparticularly where the child is too young to formally apply for membership in\\na tribe. 10\\n Our conclusion that ICWA’s definition of Indian child is a political\\nclassification is consistent with both the Supreme Court’s holding in Mancari\\nand this court’s holding in Peyote Way Church of God, Inc. v. Thornburgh, 922\\nF.2d 1210, 1212 (5th Cir. 1991). In Mancari, the hiring preference extended to\\nindividuals who were one-fourth or more degree Indian blood and a member of\\n\\n\\n\\n 10 The Navajo Nation’s membership code is instructive on these points, despite the\\ndistrict court’s reliance on it to the contrary. The Navajo Nation explains that, under its\\nlaws, “blood alone is never determinative of membership.” The Navajo Nation will only grant\\nan application for membership “if the individual has some tangible connection to the Tribe,”\\nsuch as the ability to speak the Navajo language or time spent living among the Navajo\\npeople. “Having a biological parent who is an enrolled member is per se evidence of such a\\nconnection.” Additionally, individuals will not be granted membership in the Navajo Nation,\\nregardless of their race or ancestry, if they are members of another tribe.\\n 23\\n\\n No. 18-11479\\na federally recognized tribe. See 417 U.S. at 554. Similarly, in Peyote Way,\\nthis court considered whether equal protection was violated by federal and\\nstate laws prohibiting the possession of peyote by all persons except members\\nof the Native American Church of North America (NAC), who used peyote for\\nreligious purposes. See 922 F.2d at 1212. Applying Mancari’s reasoning, this\\ncourt upheld the preference on the basis that membership in NAC “is limited\\nto Native American members of federally recognized tribes who have at least\\n25% Native American ancestry, and therefore represents a political\\nclassification.” Id. at 1216. ICWA’s “Indian child” eligibility provision\\nsimilarly turns, at least in part, on whether the child is eligible for membership\\nin a federally recognized tribe. See California Valley Miwok Tribe v. United\\nStates, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (federal recognition “is a formal\\npolitical act” that “institutionaliz[es] the government-to-government\\nrelationship between the tribe and the federal government.”); 25 U.S.C.\\n§ 1903(4).\\n The district court concluded, and Plaintiffs now argue, that ICWA’s\\ndefinition “mirrors the impermissible racial classification in Rice [v. Cayetano,\\n528 U.S. 495 (2000)], and is legally and factually distinguishable from the\\npolitical classification in Mancari.” The Supreme Court in Rice concluded that\\na provision of the Hawaiian Constitution that permitted only “Hawaiian”\\npeople to vote in the statewide election for the trustees of the Office of\\nHawaiian Affairs (OHA) violated the Fifteenth Amendment. 528 U.S. at 515.\\n“Hawaiian” was defined by statute as “any descendant of the aboriginal peoples\\ninhabiting the Hawaiian Islands which exercised sovereignty and subsisted in\\nthe Hawaiian Islands in 1778, and which peoples thereafter have continued to\\nreside in Hawaii.” Id. The Court noted the state legislature’s express purpose\\nin using ancestry as a proxy for race and held that “[d]istinctions between\\ncitizens solely because of their ancestry are by their very nature odious to a\\n 24\\n\\n No. 18-11479\\nfree people whose institutions are founded upon the doctrine of equality.” Id.\\nat 514–17 (citing Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).\\nDistinguishing Mancari, the Court noted that its precedent did not afford\\nHawaiians a protected status like that of Indian tribes; that the OHA elections\\nwere an affair of the state and not of a “separate quasi sovereign” like a tribe;\\nand that extending “Mancari to this context would [] permit a State, by racial\\nclassification, to fence out whole classes of its citizens from decisionmaking in\\ncritical state affairs.” Id. at 522.\\n Rice is distinguishable from the present case for several reasons. Unlike\\nRice, which involved voter eligibility in a state-wide election for a state agency,\\nthere is no similar concern here that applying Mancari would permit “by racial\\nclassification, [the fencing] out [of] whole classes of [a state’s] citizens from\\ndecisionmaking in critical state affairs.” See 528 U.S. at 518–22. Additionally,\\nas discussed above, ICWA’s definition of “Indian child,” unlike the challenged\\nlaw in Rice, does not single out children “solely because of their ancestry or\\nethnic characteristics.” See id. at 515 (emphasis added). Further, unlike the\\nlaw in Rice, ICWA is a federal law enacted by Congress for the protection of\\nIndian children and tribes. See Rice, 528 U.S. at 518 (noting that to sustain\\nHawaii’s restriction under Mancari, it would have to “accept some beginning\\npremises not yet established in [its] case law,” such as that Congress “has\\ndetermined that native Hawaiians have a status like that of Indians in\\norganized tribes”); see also Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th\\nCir. 2004) (rejecting an equal protection challenge brought by Native\\nHawaiians, who were excluded from the U.S. Department of the Interior’s\\nregulatory tribal acknowledgement process, and concluding that the\\nrecognition of Indian tribes was political). Additionally, whereas the OHA\\nelections in Rice were squarely state affairs, state court adoption proceedings\\ninvolving Indian children are simultaneously affairs of states, tribes, and\\n 25\\n\\n No. 18-11479\\nCongress. See 25 U.S.C. § 1901(3) (“[T]here is no resource that is more vital to\\nthe continued existence and integrity of Indian tribes than their children.”).\\nBecause we find Rice inapplicable, and Mancari controlling here, we conclude,\\ncontrary to the district court’s determination, that ICWA’s definition of “Indian\\nchild” is a political classification subject to rational basis review. See Mancari,\\n417 U.S. at 555.\\n B. Rational Basis Review\\n Having so determined that rational basis review applies, we ask whether\\n“the special treatment can be tied rationally to the fulfillment of Congress’s\\nunique obligation toward the Indians.” Mancari, 417 U.S. at 555. Given\\nCongress’s explicit findings and stated objectives in enacting ICWA, we\\nconclude that the special treatment ICWA affords Indian children is rationally\\ntied to Congress’s fulfillment of its unique obligation toward Indian nations\\nand its stated purpose of “protect[ing] the best interests of Indian children and\\n[] promot[ing] the stability and security of Indian tribes.” See 25 U.S.C.\\n§§ 1901–02; see also Mancari, 417 U.S. at 555. ICWA section 1903(4)’s\\ndefinition of an “Indian child” is a political classification that does not violate\\nequal protection.\\n III. Tenth Amendment\\n The district court concluded that ICWA sections 1901–23 11 and 1951–\\n52 12 violated the anticommandeering doctrine by requiring state courts and\\nexecutive agencies to apply federal standards to state-created claims. The\\n\\n\\n\\n\\n 11 ICWA sections 1901–03 set forth Congress’s findings, declaration of policy, and\\ndefinitions. Sections 1911–23 govern child custody proceedings, including tribal court\\njurisdiction, notice requirements in involuntary and voluntary state proceedings,\\ntermination of parental rights, invalidation of state proceedings, placement preferences, and\\nagreements between states and tribes.\\n 12 Section 1951 sets forth information-sharing requirements for state courts. Section\\n\\n1952 authorizes the Secretary of the Interior to promulgate necessary rules and regulations.\\n 26\\n\\n No. 18-11479\\ndistrict court also considered whether ICWA preempts conflicting state law\\nunder the Supremacy Clause and concluded that preemption did not apply\\nbecause the law “directly regulated states.” Defendants argue that the\\nanticommandeering doctrine does not prevent Congress from requiring state\\ncourts to enforce substantive and procedural standards and precepts, and that\\nICWA sets minimum procedural standards that preempt conflicting state law.\\nWe examine the constitutionality of the challenged provisions of ICWA below\\nand conclude that they preempt conflicting state law and do not violate the\\nanticommandeering doctrine. .\\n A. Anticommandeering Doctrine\\n The Tenth Amendment provides that “[t]he powers not delegated to the\\nUnited States by the Constitution, nor prohibited by it to the States, are\\nreserved to the States respectively, or to the people.” U.S. CONST. amend. X.\\nCongress’s legislative powers are limited to those enumerated under the\\nConstitution. Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1476\\n(2018). “[C]onspicuously absent from the list of powers given to Congress is\\nthe power to issue direct orders to the governments of the States.” Id. The\\nanticommandeering doctrine, an expression of this limitation on Congress,\\nprohibits federal laws commanding the executive or legislative branch of a\\nstate government to act or refrain from acting. 13 Id. at 1478 (holding that a\\nfederal law prohibiting state authorization of sports gambling violated the\\nanticommandeering rule by “unequivocally dictat[ing] what a state legislature\\n\\n\\n\\n 13 Though Congress is prohibited from commandeering states, it can “encourage a\\nState to regulate in a particular way, or . . . hold out incentives to the States as a method of\\ninfluencing a State’s policy choices.” New York, 505 U.S. at 166. For example, Congress may\\nalso condition the receipt of federal funds under its spending power. See id. at 167.\\nDefendants also contend that ICWA is authorized under Congress’s Spending Clause powers\\nbecause Congress conditioned federal funding in Title IV-B and E of the Social Security Act\\non states’ compliance with ICWA. However, because we conclude that ICWA is\\nconstitutionally permissible on other bases, we need not reach this argument.\\n 27\\n\\n No. 18-11479\\nmay and may not do”); Printz v. United States, 521 U.S. 898, 935 (1997)\\n(holding that a federal law requiring state chief law enforcement officers to\\nconduct background checks on handgun purchasers “conscript[ed] the State’s\\nofficers directly” and was invalid); New York v. United States, 505 U.S. 144,\\n175–76 (1992) (holding that a federal law impermissibly commandeered states\\nto implement federal legislation when it gave states “[a] choice between two\\nunconstitutionally coercive” alternatives: to either dispose of radioactive waste\\nwithin their boundaries according to Congress’s instructions or “take title” to\\nand assume liabilities for the waste).\\n 1. State Courts\\n Defendants argue that because the Supremacy Clause requires the\\nenforcement of ICWA and the Final Rule by state courts, these provisions do\\nnot run afoul of the anticommandeering doctrine. We agree. The Supremacy\\nClause provides that “the Laws of the United States . . . shall be the supreme\\nLaw of the Land; and the Judges in every State shall be bound thereby, any\\nThing in the Constitution or Laws of any State to the Contrary\\nnotwithstanding.” U.S. CONST. art. VI, cl. 2. In setting forth the\\nanticommandeering doctrine, the Supreme Court drew a distinction between a\\nstate’s courts and its political branches. The Court acknowledged that\\n“[f]ederal statutes enforceable in state court do, in a sense, direct state judges\\nto enforce them, but this sort of federal “direction” of state judges is mandated\\nby the text of the Supremacy Clause.” New York, 505 U.S. at 178–79 (internal\\nquotation marks omitted). Early laws passed by the first Congresses requiring\\nstate court action “establish, at most, that the Constitution was originally\\nunderstood to permit imposition of an obligation on state judges to enforce\\nfederal prescriptions, insofar as those prescriptions related to matters\\nappropriate for the judicial power.” Printz, 521 U.S. at 907. State courts were\\nviewed as distinctive because, “unlike [state] legislatures and executives, they\\n 28\\n\\n No. 18-11479\\napplied the law of other sovereigns all the time,” including as mandated by the\\nSupremacy Clause. Id. Thus, to the extent provisions of ICWA and the Final\\nRule require state courts to enforce federal law, the anticommandeering\\ndoctrine does not apply. See id. at 928–29 (citing Testa v. Katt, 330 U.S. 386\\n(1947), “for the proposition that state courts cannot refuse to apply federal lawa\\nconclusion mandated by the terms of the Supremacy Clause”).\\n 2. State Agencies\\n Plaintiffs next challenge several provisions of ICWA that they contend\\ncommandeer state executive agencies, including sections 1912(a) (imposing\\nnotice requirements on “the party seeking the foster care placement of, or\\ntermination of parental rights to, an Indian child”), 1912(d) (requiring that\\n“any party seeking to effect a foster care placement of, or termination of\\nparental rights to, an Indian child under State law shall satisfy the court that\\nactive efforts have been made to provide remedial services and rehabilitative\\nprograms designed to prevent the breakup of the Indian family and that these\\nefforts have proved unsuccessful.”), 1915(c) (requiring “the agency or court\\neffecting [a] placement” adhere to the order of placement preferences\\nestablished by the tribe), and 1915(e) (requiring that “the State” in which the\\nplacement was made keep a record of each placement, evidencing the efforts to\\ncomply with the order of preference, to be made available upon request of the\\nSecretary or the child’s tribe). See 25 U.S.C. §§ 1912, 1915. Plaintiffs argue\\nthat ICWA’s requirements on state agencies go further than the federal\\nregulatory scheme invalidated in Printz and impermissibly impose costs that\\nstates must bear. Defendants contend that the challenged provisions of ICWA\\napply to private parties and state agencies alike and therefore do not violate\\nthe anticommandeering doctrine.\\n In Printz, the Supreme Court affirmed its prior holding that “[t]he\\nFederal Government may not compel the States to enact or administer a\\n 29\\n\\n No. 18-11479\\nfederal regulatory program,” and “Congress cannot circumvent that\\nprohibition by conscripting the State’s officers directly.” 521 U.S. at 925, 935\\n(quoting New York, 505 U.S. at 188). The Printz Court, rejecting as irrelevant\\nthe Government’s argument that the federal law imposed a minimal burden\\non state executive officers, explained that it was not “evaluating whether the\\nincidental application to the States of a federal law of general applicability\\nexcessively interfered with the functioning of state governments,” but rather a\\nlaw whose “whole object . . . [was] to direct the functioning of the state\\nexecutive.” Id. at 931–32. Expanding upon this distinction, the Court in\\nMurphy discussed Reno v. Condon, 528 U.S. 141 (2000), and South Carolina v.\\nBaker, 485 U.S. 505 (1988), and held that “[t]he anticommandeering doctrine\\ndoes not apply when Congress evenhandedly regulates an activity in which\\nboth States and private actors engage.” 138 S. Ct. at 1478.\\n In Condon, the Court upheld a federal regulatory scheme that restricted\\nthe ability of states to disclose a driver’s personal information without consent.\\n528 U.S. at 151. In determining that the anticommandeering doctrine did not\\napply, the Court distinguished the law from those invalidated in New York and\\nPrintz:\\n [This law] does not require the States in their sovereign capacity\\n to regulate their own citizens. The [law] regulates the States as\\n the owners of [Department of Motor Vehicle] data bases. It does\\n not require the South Carolina Legislature to enact any laws or\\n regulations, and it does not require state officials to assist in the\\n enforcement of federal statutes regulating private individuals.\\nId. In Baker, the Court rejected a Tenth Amendment challenge to a provision\\nof a federal statute that eliminated the federal income tax exemption for\\ninterest earned on certain bonds issued by state and local governments unless\\nthe bonds were registered, treating the provision “as if it directly regulated\\nStates by prohibiting outright the issuance of [unregistered] bearer bonds.”\\n485 U.S. at 507–08, 511. The Court reasoned that the provision at issue merely\\n 30\\n\\n No. 18-11479\\n“regulat[ed] a state activity” and did not “seek to control or influence the\\nmanner in which States regulate private parties.” Id. at 514. “That a State\\nwishing to engage in certain activity must take administrative and sometimes\\nlegislative action to comply with federal standards regulating that activity is a\\ncommonplace that presents no constitutional defect.” Id. at 514–15.\\n“[S]ubstantial effort[s]” to comply with federal regulations are “an inevitable\\nconsequence of regulating a state activity.” Id. at 514.\\n In light of these cases, we conclude that the provisions of ICWA that\\nPlaintiffs challenge do not commandeer state agencies. Sections 1912(a) and\\n(d) impose notice and “active efforts” requirements on the “party” seeking the\\nfoster care placement of, or termination of parental rights to, an Indian child.\\nBecause both state agencies and private parties who engage in state child\\ncustody proceedings may fall under these provisions, 1912(a) and (d)\\n“evenhandedly regulate[] an activity in which both States and private actors\\nengage.” 14 See Murphy, 138 S. Ct. at 1478. Moreover, sections 1915(c) and (e)\\nimpose an obligation on “the agency or court effecting the placement” of an\\nIndian child to respect a tribe’s order of placement preferences and require that\\n“the State” maintain a record of each placement to be made available to the\\nSecretary or child’s tribe. These provisions regulate state activity and do not\\n\\n\\n\\n 14Similarly, section 1912(e) provides that no foster care placement may be ordered in\\ninvoluntary proceedings in state court absent “a determination, supported by clear and\\nconvincing evidence, including testimony of qualified expert witnesses, that the continued\\ncustody of the child by the parent or Indian custodian is likely to result in serious emotional\\nor physical damage to the child.” See 25 U.S.C. § 1912(e). Section 1912(f) requires that no\\ntermination of parental rights may be ordered in involuntary proceedings in state court\\nabsent evidence beyond a reasonable doubt of the same. See id. at 1912(f). Neither section\\nexpressly refers to state agencies and, in conjunction with section 1912(d), both sections must\\nbe reasonably read to refer to “any party” seeking the foster care placement of, or the\\ntermination of parental rights to, an Indian child. Thus, like section 1912(d), sections\\n1912(e)–(f) “evenhandedly regulate[] an activity in which both States and private actors\\nengage” and do not run afoul of the anticommandeering doctrine. See Murphy, 138 S. Ct. at\\n1478; see also Condon, 528 U.S. at 151.\\n 31\\n\\n No. 18-11479\\nrequire states to enact any laws or regulations, or to assist in the enforcement\\nof federal statutes regulating private individuals. See Condon, 528 U.S. at 151;\\nBaker, 485 U.S. at 514; see also Printz, 521 U.S. at 918 (distinguishing statutes\\nthat merely require states to provide information to the federal government\\nfrom those that command state executive agencies to actually administer\\nfederal programs). To the contrary, they merely require states to “take\\nadministrative . . . action to comply with federal standards regulating” child\\ncustody proceedings involving Indian children, which is permissible under the\\nTenth Amendment. 15 See Baker, 485 U.S. at 514–15.\\n B. Preemption\\n Defendants argue that, to the extent there is a conflict between ICWA\\nand applicable state laws in child custody proceedings, ICWA preempts state\\nlaw. The Supremacy Clause provides that federal law is the “supreme Law of\\n\\n\\n\\n 15 In ruling otherwise, the district court discussed Murphy and emphasized that\\nadhering to the anticommandeering rule is necessary to protect constitutional principles of\\nstate sovereignty, promote political accountability, and prevent Congress from shifting the\\ncosts of regulation to states. See Murphy, 138 S. Ct. at 1477. These principles do not compel\\nthe result reached by the district court. See id. First, the anticommandeering doctrine is not\\nnecessary here to protect constitutional principles of state sovereignty because ICWA\\nregulates the actions of state executive agencies in their role as child advocates and\\ncustodians, and not in their capacity as sovereigns enforcing ICWA. See id. at 1478; see also\\nCondon, 528 U.S. at 151 (concluding that the law in question there “does not require the\\nStates in their sovereign capacity to regulate their own citizens [but] regulates the States as\\nthe owners of data bases”). The need to promote political accountability is minimized here\\nfor similar reasons, as ICWA does not require states to regulate their own citizens. See\\nMurphy, 138 S. Ct. at 1477 (noting concern that, if states are required to impose a federal\\nregulation on their voters, the voters will not know who to credit or blame and responsibility\\nwill be “blurred”). Finally, the need to prevent Congress from shifting the costs of regulation\\nto states is also minimized here, where some of the requirements at issue, like those in\\nsections 1912(d) and 1915(c), simply regulate a state’s actions during proceedings that it\\nwould already be expending resources on. ICWA’s recordkeeping and notice requirements\\ncould impose costs on states, but we cannot conclude that these costs compel application of\\nthe anticommandeering doctrine. See Condon, 528 U.S. at 150 (a federal law that “require[d]\\ntime and effort on the part of state employees” was constitutional); Baker, 485 U.S. at 515\\n(that states may have to raise funds necessary to comply with federal regulations “presents\\nno constitutional defect”).\\n 32\\n\\n No. 18-11479\\nthe Land . . . any Thing in the Constitution or Laws of any State to the Contrary\\nnotwithstanding.” U.S. CONST. art. VI, cl. 2. Conflict preemption occurs when\\n“Congress enacts a law that imposes restrictions or confers rights on private\\nactors; a state law confers rights or imposes restrictions that conflict with the\\nfederal law; and therefore the federal law takes precedence and the state law\\nis preempted.” Murphy, 138 S. Ct. at 1480. For a federal law to preempt\\nconflicting state law, two requirements must be satisfied: The challenged\\nprovision of the federal law “must represent the exercise of a power conferred\\non Congress by the Constitution” and “must be best read as one that regulates\\nprivate actors” by imposing restrictions or conferring rights. Id. at 1479–80.\\nThe district court concluded that preemption does not apply here, as ICWA\\nregulates states rather than private actors. We review de novo whether a\\nfederal law preempts a state statute or common law cause of action. See\\nFriberg v. Kansas City S. Ry. Co., 267 F.3d 439, 442 (5th Cir. 2001).\\n Congress enacted ICWA to “establish[] minimum Federal standards for\\nthe removal of Indian children from their families and the placement of such\\nchildren in foster or adoptive homes which will reflect the unique values of\\nIndian culture.” 25 U.S.C. § 1902. Defendants contend that these minimum\\nfederal standards preempt conflicting state laws. Plaintiffs contend that\\npreemption does not apply here because ICWA regulates states and not\\nindividuals, and nothing in the Constitution gives Congress authority to\\nregulate the adoption of Indian children under state jurisdiction.\\n ICWA specifies that Congress’s authority to regulate the adoption of\\nIndian children arises under the Indian Commerce Clause as well as “other\\nconstitutional authority.” 25 U.S.C. § 1901(1). The Indian Commerce Clause\\nprovides that “[t]he Congress shall have Power To . . . regulate Commerce . . .\\nwith the Indian Tribes.” U.S. CONST. art. I, § 8, cl. 3. The Supreme Court has\\nrepeatedly held that the Indian Commerce Clause grants Congress plenary\\n 33\\n\\n No. 18-11479\\npower over Indian affairs. See Lara, 541 U.S. at 200 (noting that the Indian\\nCommerce and Treaty Clauses are sources of Congress’s “plenary and\\nexclusive” “powers to legislate in respect to Indian tribes”); Ramah Navajo Sch.\\nBd., Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 837 (1982)\\n(discussing Congress’s “broad power . . . to regulate tribal affairs under the\\nIndian Commerce Clause”); Mancari, 417 U.S. at 551–52 (noting that “[t]he\\nplenary power of Congress to deal with the special problems of Indians is\\ndrawn both explicitly and implicitly from,” inter alia, the Indian Commerce\\nClause). Plaintiffs do not provide authority to support a departure from that\\nprinciple here.\\n Moreover, ICWA clearly regulates private individuals. See Murphy, 138\\nS. Ct. at 1479–80. In enacting the statute, Congress declared that it was the\\ndual policy of the United States to protect the best interests of Indian children\\nand promote the stability and security of Indian families and tribes. 25 U.S.C.\\n§ 1902. Each of the challenged provisions applies within the context of state\\ncourt proceedings involving Indian children and is informed by and designed\\nto promote Congress’s goals by conferring rights upon Indian children and\\nfamilies. 16 See H.R. REP. No. 95-1386, at 18 (1978) (“We conclude that rights\\narising under [ICWA] may be enforced, as of right, in the courts of the States\\nwhen their jurisdiction, as prescribed by local law, is adequate to the occasion.”\\n\\n\\n 16 Arguably, two of the challenged provisions of ICWA could be construed to\\nsimultaneously “confer[] rights” on Indian children and families while “imposing restrictions”\\non state agencies. See Murphy, 138 S. Ct. at 1479–80. Section 1915(c) requires “the agency\\nor court effecting [a] placement” to adhere to a tribe’s established order of placement\\npreferences, and section 1915(e) requires states to keep records and make them available to\\nthe Secretary and Indian tribes. 25 U.S.C. § 1915(c), (e). However, Murphy instructs that\\nfor a provision of a federal statute to preempt state law, the provision must be “best read as\\none that regulates private actors.” See 138 S. Ct. at 1479 (emphasis added). In light of\\nCongress’s express purpose in enacting ICWA, the legislative history of the statute, and\\nsection 1915’s scope in setting forth minimum standards for the “Placement of Indian\\nchildren,” we conclude that these provisions are “best read” as regulating private actors by\\nconferring rights on Indian children and families. See id.\\n 34\\n\\n No. 18-11479\\n(quoting Second Employers’ Liability Cases, 223 U.S. 1, 59 (1912))). Thus, to\\nthe extent ICWA’s minimum federal standards conflict with state law, “federal\\nlaw takes precedence and the state law is preempted.” See Murphy, 138 S. Ct.\\nat 1480.\\n IV. Nondelegation Doctrine\\n Article I of the Constitution vests “[a]ll legislative Powers” in Congress.\\nU.S. CONST. art. 1, § 1, cl. 1. “In a delegation challenge, the constitutional\\nquestion is whether the statute has delegated legislative power to the agency.”\\nWhitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). The limitations on\\nCongress’s ability to delegate its legislative power are “less stringent in cases\\nwhere the entity exercising the delegated authority itself possesses\\nindependent authority over the subject matter.” See United States v. Mazurie,\\n419 U.S. 544, 556–57 (1975). ICWA section 1915(c) allows Indian tribes to\\nestablish through tribal resolution a different order of preferred placement\\nthan that set forth in sections 1915(a) and (b). 17 Section 23.130 of the Final\\nRule provides that a tribe’s established placement preferences apply over those\\nspecified in ICWA. 18 The district court determined that these provisions\\nviolated the nondelegation doctrine, reasoning that section 1915(c) grants\\nIndian tribes the power to change legislative preferences with binding effect\\non the states, and Indian tribes, like private entities, are not part of the federal\\ngovernment of the United States and cannot exercise federal legislative or\\nexecutive regulatory power over non-Indians on non-tribal lands.\\n\\n\\n\\n 17 The section provides: “In the case of a placement under subsection (a) or (b) of this\\nsection, if the Indian child’s tribe shall establish a different order of preference by resolution,\\nthe agency or court effecting the placement shall follow such order so long as the placement\\nis the least restrictive setting appropriate to the particular needs of the child, as provided in\\nsubsection (b) of this section.” 25 U.S.C. § 1915(c).\\n 18 “If the Indian child’s Tribe has established by resolution a different order of\\n\\npreference than that specified in ICWA, the Tribe’s placement preferences apply.” 25 C.F.R.\\n§ 23.130.\\n 35\\n\\n No. 18-11479\\n Defendants argue that the district court’s analysis of the\\nconstitutionality of these provisions ignores the inherent sovereign authority\\nof tribes. They contend that section 1915 merely recognizes and incorporates\\na tribe’s exercise of its inherent sovereignty over Indian children and therefore\\ndoes not—indeed cannot—delegate this existing authority to Indian tribes.\\n The Supreme Court has long recognized that Congress may incorporate\\nthe laws of another sovereign into federal law without violating the\\nnondelegation doctrine. See Mazurie, 419 U.S. at 557 (“[I]ndependent tribal\\nauthority is quite sufficient to protect Congress’ decision to vest in tribal\\ncouncils this portion of its own authority ‘to regulate Commerce . . . with the\\nIndian tribes.’”); United States v. Sharpnack, 355 U.S. 286, 293–94 (1958)\\n(holding that a statute that prospectively incorporated state criminal laws “in\\nforce at the time” of the alleged crime was a “deliberate continuing adoption by\\nCongress” of state law as binding federal law in federal enclaves within state\\nboundaries); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 80 (1824) (“Although\\nCongress cannot enable a State to legislate, Congress may adopt the provisions\\nof a State on any subject.”). “Indian tribes are unique aggregations possessing\\nattributes of sovereignty over both their members and their territory.”\\nMazurie, 419 U.S. at 557. Though some exercises of tribal power require\\n“express congressional delegation,” the “tribes retain their inherent power to\\ndetermine tribal membership [and] to regulate domestic relations among\\nmembers . . . .” See Montana v. United States, 450 U.S. 544, 564 (1981); see\\nalso Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 170 (1982) (“tribes retain\\nthe power to create substantive law governing internal tribal affairs” like tribal\\ncitizenship and child custody).\\n In Mazurie, a federal law allowed the tribal council of the Wind River\\nTribes, with the approval of the Secretary of the Interior, to adopt ordinances\\nto control the introduction of alcoholic beverages by non-Indians on privately\\n 36\\n\\n No. 18-11479\\nowned land within the boundaries of the reservation. See 419 U.S. at 547, 557.\\nThe Supreme Court held that the law did not violate the nondelegation\\ndoctrine, focusing on the Tribes’ inherent power to regulate their internal and\\nsocial relations by controlling the distribution and use of intoxicants within the\\nreservation’s bounds. Id. Mazurie is instructive here. ICWA section 1915(c)\\nprovides that a tribe may pass, by its own legislative authority, a resolution\\nreordering the three placement preferences set forth by Congress in section\\n1915(a). Pursuant to this section, a tribe may assess whether the most\\nappropriate placement for an Indian child is with members of the child’s\\nextended family, the child’s tribe, or other Indian families, and thereby\\nexercise its “inherent power to determine tribal membership [and] regulate\\ndomestic relations among members” and Indian children eligible for\\nmembership. See Montana, 450 U.S. at 564.\\n State Plaintiffs contend that Mazurie is distinguishable because it\\ninvolves the exercise of tribal authority on tribal lands, whereas ICWA permits\\nthe extension of tribal authority over states and persons on non-tribal lands.\\nWe find this argument unpersuasive. It is well established that tribes have\\n“sovereignty over both their members and their territory.” See Mazurie, 419\\nU.S. at 557 (emphasis added). For a tribe to exercise its authority to determine\\ntribal membership and to regulate domestic relations among its members, it\\nmust necessarily be able to regulate all Indian children, irrespective of their\\nlocation. 19 See Montana, 450 U.S. at 564 (tribes retain inherent power to\\nregulate domestic relations and determine tribal membership); Merrion, 455\\nU.S. at 170 (tribes retain power to govern tribal citizenship and child custody).\\nSection 1915(c), by recognizing the inherent powers of tribal sovereigns to\\n\\n\\n\\n 19Indeed, as the BIA noted in promulgating the Final Rule, at least 78% of Native\\nAmericans lived outside of Indian country as of 2016. See 81 Fed. Reg. at 38,778, 38,783.\\n 37\\n\\n No. 18-11479\\ndetermine by resolution the order of placement preferences applicable to an\\nIndian child, is thus a “deliberate continuing adoption by Congress” of tribal\\nlaw as binding federal law. See Sharpnack, 355 U.S. at 293–94; see also 25\\nU.S.C. § 1915(c); 81 Fed. Reg. at 38,784 (the BIA noting that “through\\nnumerous statutory provisions, ICWA helps ensure that State courts\\nincorporate Indian social and cultural standards into decision-making that\\naffects Indian children”). We therefore conclude that ICWA section 1915(c) is\\nnot an unconstitutional delegation of Congressional legislative power to tribes,\\nbut is an incorporation of inherent tribal authority by Congress. See Mazurie,\\n419 U.S. at 544; Sharpnack, 355 U.S. at 293–94.\\n V. The Final Rule\\n The district court held that, to the extent sections 23.106–22, 23.124–32,\\nand 23.140–41 of the Final Rule were binding on State Plaintiffs, they violated\\nthe APA for three reasons: The provisions (1) purported to implement an\\nunconstitutional statute; (2) exceeded the scope of the Interior Department’s\\nstatutory regulatory authority to enforce ICWA with binding regulations; and\\n(3) reflected an impermissible construction of ICWA section 1915. We examine\\neach of these bases in turn.\\n A. The Constitutionality of ICWA\\n Because we concluded that the challenged provisions of ICWA are\\nconstitutional, for reasons discussed earlier in this opinion, the district court’s\\nfirst conclusion that the Final Rule was invalid because it implemented an\\nunconstitutional statue was erroneous. Thus, the statutory basis of the Final\\nRule is constitutionally valid.\\n B. The Scope of the BIA’s Authority\\n Congress authorized the Secretary of the Interior to promulgate rules\\nand regulations that may be necessary to carry out the provisions of ICWA.\\nSee 25 U.S.C. § 1952. Pursuant to this provision, the BIA, acting under\\n 38\\n\\n No. 18-11479\\nauthority delegated by the Interior Department, issued guidelines in 1979 for\\nstate courts in Indian child custody proceedings that were “not intended to\\nhave binding legislative effect.” 44 Fed. Reg. at 67,584. The BIA explained\\nthat, generally, “when the Department writes rules needed to carry out\\nresponsibilities Congress has explicitly imposed on the Department, those\\nrules are binding.” Id. However, when “the Department writes rules or\\nguidelines advising some other agency how it should carry out responsibilities\\nexplicitly assigned to it by Congress, those rules or guidelines are not, by\\nthemselves, binding.” Id. With respect to ICWA, the BIA concluded in 1979\\nthat it was “not necessary” to issue binding regulations advising states how to\\ncarry out the responsibilities Congress assigned to them; state courts were\\n“fully capable” of implementing the responsibilities Congress imposed on them,\\nand nothing in the language or legislative history of 25 U.S.C. § 1952 indicated\\nthat Congress intended the BIA to exercise supervisory control over states. Id.\\nHowever, in 2016, the BIA changed course and issued the Final Rule, which\\nsets binding standards for state courts in Indian child-custody proceedings.\\nSee 25 C.F.R. §§ 23.101, 23.106; 81 Fed. Reg. at 38,779, 38,785. The BIA\\nexplained that its earlier, nonbinding guidelines were “insufficient to fully\\nimplement Congress’s goal of nationwide protections for Indian children,\\nparents, and Tribes.” 81 Fed. Reg. at 38,782. Without the Final Rule, the BIA\\nstated, state-specific determinations about how to implement ICWA would\\ncontinue “with potentially devastating consequences” for those Congress\\nintended ICWA to protect. See id.\\n In reviewing “an agency’s construction of the statute which it\\nadministers,” we are “confronted with two questions.” Chevron, U.S.A., Inc. v.\\nNat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). First, we must\\nexamine whether the statute is ambiguous. Id. at 842. “If the intent of\\nCongress is clear, that is the end of the matter; for the court, as well as the\\n 39\\n\\n No. 18-11479\\nagency, must give effect to the unambiguously expressed intent of Congress.”\\nId. But “if the statute is silent or ambiguous with respect to the specific issue,\\nthe question for the court is whether the agency’s answer is based on a\\npermissible construction of the statute.” Id. at 842–43. We must uphold an\\nagency’s reasonable interpretation of an ambiguous statute. Id. at 844.\\n Under Chevron step one, the question is whether Congress\\nunambiguously intended to grant the Department authority to promulgate\\nbinding rules and regulations. ICWA provides that “the Secretary shall\\npromulgate such rules and regulations as may be necessary to carry out the\\nprovisions of this chapter.” 25 U.S.C. § 1952. The provision’s plain language\\nconfers broad authority on the Department to promulgate rules and\\nregulations it deems necessary to carry out ICWA. This language can be\\nconstrued to grant the authority to issue binding rules and regulations;\\nhowever, because “Congress has not directly addressed the precise question at\\nissue,” we conclude that section 1952 is ambiguous. See Chevron, 467 U.S. at\\n843.\\n Moving to the second Chevron step, we must determine whether the\\nBIA’s current interpretation of its authority to issue binding regulations\\npursuant to section 1952 is reasonable. See 467 U.S. at 843–44. Defendants\\nargue that section 1952’s language is substantively identical to other statutes\\nconferring broad delegations of rulemaking authority. Indeed, the Supreme\\nCourt has held that “[w]here the empowering provision of a statute states\\nsimply that the agency may make . . . such rules and regulations as may be\\nnecessary to carry out the provisions of this Act . . . the validity of a regulation\\npromulgated thereunder will be sustained so long as it is reasonably related to\\nthe purposes of the enabling legislation.” Mourning v. Family Publications\\nServ., Inc., 411 U.S. 356, 369 (1973) (internal quotation marks omitted); see\\nalso City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 306 (2013) (noting a lack of\\n 40\\n\\n No. 18-11479\\n“case[s] in which a general conferral of rulemaking or adjudicative authority\\nhas been held insufficient to support Chevron deference for an exercise of that\\nauthority within the agency’s substantive field”). Here, section 1952’s text is\\nsubstantially similar to the language in Mourning, and the Final Rule’s\\nbinding standards for Indian child custody proceedings are reasonably related\\nto ICWA’s purpose of establishing minimum federal standards in child custody\\nproceedings involving Indian children. See 25 U.S.C. § 1902. Thus, the Final\\nRule is a reasonable exercise of the broad authority granted to the BIA by\\nCongress in ICWA section 1952.\\n Plaintiffs contend that the BIA reversed its position on the scope of its\\nauthority to issue binding regulations after thirty-seven years and without\\nexplanation and its interpretation was therefore not entitled to deference. We\\ndisagree. “The mere fact that an agency interpretation contradicts a prior\\nagency position is not fatal. Sudden and unexplained change, or change that\\ndoes not take account of legitimate reliance on prior interpretation, may be\\narbitrary, capricious [or] an abuse of discretion. But if these pitfalls are\\navoided, change is not invalidating, since the whole point of Chevron is to leave\\nthe discretion provided by the ambiguities of a statute with the implementing\\nagency.” Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742 (1996)\\n(internal citations and quotation marks omitted). The agency must provide\\n“reasoned explanation” for its new policy, though “it need not demonstrate to\\na court’s satisfaction that the reasons for the new policy are better than the\\nreasons for the old one.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,\\n515 (2009). “[I]t suffices that the new policy is permissible under the statute,\\nthat there are good reasons for it, and that the agency believes it to be better,\\nwhich the conscious change of course adequately indicates.” Id.\\n The BIA directly addressed its reasons for departing from its earlier\\ninterpretation that it had no authority to promulgate binding regulations,\\n 41\\n\\n No. 18-11479\\nexplaining that, under Supreme Court precedent, the text of section 1952\\nconferred “a broad and general grant of rulemaking authority.” 81 Fed. Reg.\\nat 38,785 (collecting Supreme Court cases). The BIA further discussed why it\\nnow considered binding regulations necessary to implement ICWA: In 1979,\\nthe BIA “had neither the benefit of the Holyfield Court’s carefully reasoned\\ndecision nor the opportunity to observe how a lack of uniformity in the\\ninterpretation of ICWA by State courts could undermine the statute’s\\nunderlying purposes.” 81 Fed. Reg. at 38,787 (citing Holyfield, 490 U.S. at 30).\\n In Holyfield, the Supreme Court considered the meaning of the term\\n“domicile,” which ICWA section 1911 left undefined and the BIA left open to\\nstate interpretation under its 1979 Guidelines. 490 U.S. at 43, 51. The Court\\nheld that “it is most improbable that Congress would have intended to leave\\nthe scope of the statute’s key jurisdictional provision subject to definition by\\nstate courts as a matter of state law,” given that “Congress was concerned with\\nthe rights of Indian families vis-à-vis state authorities” and considered “States\\nand their courts as partly responsible for the problem it intended to correct”\\nthrough ICWA. Id. at 45. Because Congress intended for ICWA to address a\\nnationwide problem, the Court determined that the lack of nationwide\\nuniformity resulting from varied state-law definitions of this term frustrated\\nCongress’s intent. Id. The Holyfield Court’s reasoning applies here.\\nCongress’s concern with safeguarding the rights of Indian families and\\ncommunities was not limited to section 1911 and extended to all provisions of\\nICWA, including those at issue here. Thus, as the BIA explained, all provisions\\nof ICWA that it left open to state interpretation in 1979, including many that\\nPlaintiffs now challenge, were subject to the lack of uniformity the Supreme\\nCourt identified in Holyfield and determined was contrary to Congress’s intent.\\n81 Fed. Reg. at 38,782. Thus, in light of Holyfield, the BIA has provided a\\n“reasoned explanation” for departing from its earlier interpretation of its\\n 42\\n\\n No. 18-11479\\nauthority under section 1952 and for the need of binding regulations with\\nrespect to ICWA. See Fox Television Stations, 556 U.S. at 515.\\n In addition to assessing whether an agency’s interpretation of a statute\\nis reasonable under Chevron, the APA requires that we “hold unlawful and set\\naside agency action . . . found to be . . . arbitrary, capricious, an abuse of\\ndiscretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).\\nContrary to Plaintiffs’ contentions, the BIA explained that the Final Rule\\nresulted from years of study and public outreach and participation. See 81 Fed.\\nReg. 38,778, 38,784–85. In promulgating the rule, the BIA relied on its own\\nexpertise in Indian affairs, its experience in administering ICWA and other\\nIndian child-welfare programs, state interpretations and best practices, 20\\npublic hearings, and tribal consultations. See id. Thus, the BIA’s current\\ninterpretation is not “arbitrary, capricious, [or] an abuse of discretion” because\\nit was not sudden and unexplained. See Smiley, 517 U.S. at 742; 5 U.S.C.\\n§ 706(a)(2). The district court’s contrary conclusion was error.\\n C. The BIA’s Construction of ICWA Section 1915\\n ICWA section 1915 sets forth three preferences for the placement of\\nIndian children unless good cause can be shown to depart from them. 25 U.S.C.\\n§ 1915(a)–(b). The 1979 Guidelines initially advised that the term “good cause”\\nin ICWA section 1915 “was designed to provide state courts with flexibility in\\ndetermining the disposition of a placement proceeding involving an Indian\\nchild.” 44 Fed. Reg. 67,584. However, section 23.132(b) of the Final Rule\\nspecifies that “[t]he party seeking departure from [section 1915’s] placement\\npreferences should bear the burden of proving by clear and convincing evidence\\nthat there is ‘good cause’ to depart from the placement preferences.” 25 C.F.R.\\n\\n\\n 20 Since ICWA’s enactment in 1978, several states have incorporated the statute’s\\nrequirements into their own laws or have enacted detailed procedures for their state agencies\\nto collaborate with tribes in child custody proceedings.\\n 43\\n\\n No. 18-11479\\n§ 23.132(b). The district court determined that Congress unambiguously\\nintended the ordinary preponderance-of-the-evidence standard to apply, and\\nthe BIA’s interpretation that a higher standard applied was therefore not\\nentitled to Chevron deference.\\n Defendants contend that the Final Rule’s clear-and-convincing standard\\nis merely suggestive and not binding. They further aver that the Final Rule’s\\nclarification of the meaning of “good cause” and imposition of a clear-and-\\nconvincing-evidence standard are entitled to Chevron deference. Plaintiffs\\nrespond that state courts have interpreted the clear-and-convincing standard\\nas more than just suggestive in practice, and the Final Rule’s fixed definition\\nof “good cause” is contrary to ICWA’s intent to provide state courts with\\nflexibility.\\n Though provisions of the Final Rule are generally binding on states, the\\nBIA indicated that it did not intend for section 23.132(b) to establish a binding\\nstandard. See 25 C.F.R. § 23.132 (“The party seeking departure from the\\nplacement preferences should bear the burden of proving by clear and\\nconvincing evidence that there is ‘good cause’ to depart from the placement\\npreferences.” (emphasis added)). The BIA explained that “[w]hile the final rule\\nadvises that the application of the clear and convincing standard ‘should’ be\\nfollowed, it does not categorically require that outcome . . . [and] the\\nDepartment declines to establish a uniform standard of proof on this issue.”\\nSee 81 Fed. Reg. at 38,843.\\n The BIA’s interpretation of section 1915 is also entitled to Chevron\\ndeference. For purposes of Chevron step one, the statute is silent with respect\\nto which evidentiary standard applies. See 25 U.S.C. § 1915; Chevron, 467 U.S.\\nat 842. The district court relied on the canon of expressio unius est exclusio\\nalterius (“the expression of one is the exclusion of others”) in finding that\\nCongress unambiguously intended that a preponderance-of-the-evidence\\n 44\\n\\n No. 18-11479\\nstandard was necessary to show good cause under ICWA section 1915. The\\ncourt reasoned that because Congress specified a heightened evidentiary\\nstandard in other provisions of ICWA, but did not do so with respect to section\\n1915, Congress did not intend for the heightened clear-and-convincing-\\nevidence standard to apply. This was error. “When interpreting statutes that\\ngovern agency action, . . . a congressional mandate in one section and silence\\nin another often suggests not a prohibition but simply a decision not to\\nmandate any solution in the second context, i.e., to leave the question to agency\\ndiscretion.” Catawba Cty., N.C. v. E.P.A., 571 F.3d 20, 36 (D.C. Cir. 2009).\\n“[T]hat Congress spoke in one place but remained silent in another . . . rarely\\nif ever suffices for the direct answer that Chevron step one requires.” Id.\\n(cleaned up); see also Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940\\nF.2d 685, 694 (D.C. Cir. 1991) (“Under Chevron, we normally withhold\\ndeference from an agency’s interpretation of a statute only when Congress has\\ndirectly spoken to the precise question at issue, and the expressio canon is\\nsimply too thin a reed to support the conclusion that Congress has clearly\\nresolved this issue.”) (internal citations and quotation marks omitted).\\n Under Chevron step two, the BIA’s current interpretation of the\\napplicable evidentiary standard is reasonable. See Chevron, 467 U.S. at 844.\\nThe BIA’s suggestion that the clear-and-convincing standard should apply was\\nderived from the best practices of state courts. 81 Fed. Reg. at, 38,843. The\\nFinal Rule explains that, since ICWA’s passage, “courts that have grappled\\nwith the issue have almost universally concluded that application of the clear\\nand convincing evidence standard is required as it is most consistent with\\nCongress’s intent in ICWA to maintain Indian families and Tribes intact.” Id.\\nBecause the BIA’s current interpretation of section 1915, as set forth in Final\\nRule section 23.132(b), was based on its analysis of state cases and geared\\ntoward furthering Congress’s intent, it is reasonable and entitled to Chevron\\n 45\\n\\n No. 18-11479\\ndeference. Moreover, the BIA’s current interpretation is nonbinding and\\ntherefore consistent with the 1979 Guidelines in allowing state courts\\nflexibility to determine “good cause.” Section 23.132(b) of the Final Rule is\\nthus valid under the APA. See 5 U.S.C. § 706(a)(2).\\n ***\\n For these reasons, we conclude that Plaintiffs had standing to bring all\\nclaims and that ICWA and the Final Rule are constitutional because they are\\nbased on a political classification that is rationally related to the fulfillment of\\nCongress’s unique obligation toward Indians; ICWA preempts conflicting state\\nlaws and does not violate the Tenth Amendment anticommandeering doctrine;\\nand ICWA and the Final Rule do not violate the nondelegation doctrine. We\\nalso conclude that the Final Rule implementing the ICWA is valid because the\\nICWA is constitutional, the BIA did not exceed its authority when it issued the\\nFinal Rule, and the agency’s interpretation of ICWA section 1915 is reasonable.\\nAccordingly, we AFFIRM the district court’s judgment that Plaintiffs had\\nArticle III standing. But we REVERSE the district court’s grant of summary\\njudgment for Plaintiffs and RENDER judgment in favor of Defendants on all\\nclaims.\\n\\n\\n\\n\\n 46\\n\\n No. 18-11479\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426459/\", \"author_raw\": \"JAMES L. DENNIS, Circuit Judge:\"}, {\"author\": \"PRISCILLA R. OWEN, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"PRISCILLA R. OWEN, Circuit Judge, concurring in part and dissenting in\\npart:\\n\\n I agree with much of the majority opinion. But I conclude that certain\\nprovisions of the Indian Child Welfare Act (ICWA) 1 and related regulations\\nviolate the United States Constitution because they direct state officers or\\nagents to administer federal law. I therefore dissent, in part.\\n The offending statutes include part of 25 U.S.C. § 1912(d) (requiring a\\nState seeking to effect foster care placement of an Indian child to “satisfy the\\ncourt that active efforts have been made to provide remedial services and\\nrehabilitative programs designed to prevent the breakup of the Indian family\\nand these efforts have proved unsuccessful”), § 1912(e) (prohibiting foster care\\nplacement unless a State presents evidence from “qualified expert\\nwitnesses . . . that the continued custody of the child by the parent or Indian\\ncustodian is likely to result in serious emotional or physical damage to the\\nchild”), and § 1915(e) (requiring that “[a] record of each such placement, under\\nState law, of an Indian child shall be maintained by the State in which the\\nplacement was made, evidencing the efforts to comply with the order of\\npreference specified in this section” and that “[s]uch record[s] shall be made\\navailable at any time upon the request of the Secretary or the Indian child’s\\ntribe”). Regulations requiring States to maintain related records also violate\\nthe Constitution. 2\\n\\n\\n\\n 1 25 U.S.C. §§ 1901 et seq.\\n 2 See 25 C.F.R. § 23.141:\\n\\n (a) The State must maintain a record of every voluntary or involuntary\\n foster-care, preadoptive, and adoptive placement of an Indian child and make\\n the record available within 14 days of a request by an Indian child’s Tribe or\\n the Secretary.\\n\\n 47\\n\\n No. 18-11479\\n The Supreme Court has made clear that Congress cannot commandeer\\na State or its officers or agencies: “[T]he Federal Government may not compel\\nthe States to implement, by legislation or executive action, federal regulatory\\nprograms.” 3 “The anticommandeering doctrine may sound arcane, but it is\\nsimply the expression of a fundamental structural decision incorporated into\\nthe Constitution, i.e., the decision to withhold from Congress the power to issue\\norders directly to the States.” 4 “The legislative powers granted to Congress are\\nsizable, but they are not unlimited. The Constitution confers on Congress not\\nplenary legislative power but only certain enumerated powers. Therefore, all\\nother legislative power is reserved for the States, as the Tenth Amendment\\nconfirms.” 5 The Supreme Court has recognized that “conspicuously absent\\nfrom the list of powers given to Congress is the power to issue direct orders to\\nthe governments of the States. The anticommandeering doctrine simply\\nrepresents the recognition of this limit on congressional authority.” 6\\n The defendants in the present case contend that the Indian Commerce\\nClause 7 empowers Congress to direct the States as it has done in the ICWA.\\n\\n\\n\\n (b) The record must contain, at a minimum, the petition or complaint,\\n all substantive orders entered in the child-custody proceeding, the complete\\n record of the placement determination (including, but not limited to, the\\n findings in the court record and the social worker’s statement), and, if the\\n placement departs from the placement preferences, detailed documentation of\\n the efforts to comply with the placement preferences.\\n\\n (c) A State agency or agencies may be designated to be the repository\\n for this information. The State court or agency should notify the BIA whether\\n these records are maintained within the court system or by a State agency.\\n\\n 3Printz v. United States, 521 U.S. 898, 925 (1997).\\n 4Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1475 (2018).\\n 5 Id. at 1476.\\n 6 Id.\\n 7 U.S. CONST. art. I, § 8, cl. 3 (“The Congress shall have Power . . . To regulate\\n\\nCommerce with foreign Nations, and among the several States, and with the Indian Tribes.”).\\n 48\\n\\n No. 18-11479\\nThey are mistaken. “Where a federal interest is sufficiently strong to cause\\nCongress to legislate, it must do so directly; it may not conscript state\\ngovernments as its agents.” 8\\n The panel’s majority opinion concludes that the ICWA does “not\\ncommandeer state agencies” 9 because it “evenhandedly regulate[s] an activity\\nin which both States and private actors engage.” 10 This is incorrect with\\nrespect to the part of 25 U.S.C. § 1912(d) addressed to foster care placement,\\n§ 1912(e), § 1915(e), and 25 C.F.R. § 23.141.\\n Though § 1912(d) nominally applies to “[a]ny party seeking to effect a\\nfoster care placement of . . . an Indian child under State law,” 11 as a practical\\nmatter, it applies only to state officers or agents. Foster care placement is not\\nundertaken by private individuals or private actors. That is a responsibility\\nthat falls upon state officers or agencies. Those officers or agencies are\\nrequired by § 1912(d) to “satisfy the court that active efforts have been made\\nto provide remedial services and rehabilitative programs designed to prevent\\nthe breakup of the Indian family and that these efforts have proved\\nunsuccessful.” 12 That directive means that a State cannot place an Indian\\nchild in foster care, regardless of the exigencies of the circumstances, unless it\\nfirst provides the federally specified services and programs without success.\\nTheoretically, a State could decline to protect Indian children in need of foster\\ncare. It could, theoretically, allow Indian children to remain in abusive or even\\npotentially lethal circumstances. But that is not a realistic choice, even if state\\n\\n\\n\\n 8 Murphy, 138 S. Ct. at 1477 (quoting New York v. United States, 505 U.S. 144, 178\\n(1992)).\\n 9 Brackeen v. Bernhardt, __ F.3d __, __, 2019 WL 3759491, at *14 (5th Cir. 2019).\\n 10 Id. (quoting Murphy, 138 S. Ct. at 1478).\\n 11 25 U.S.C. § 1912(d).\\n 12 Id.\\n\\n 49\\n\\n No. 18-11479\\nlaw did not apply across the board and include all children, regardless of their\\nIndian heritage.\\n Certain of the ICWA’s provisions are a transparent attempt to foist onto\\nthe States the obligation to execute a federal program and to bear the\\nattendant costs. Though the requirements in § 1912(d) are not as direct as\\nthose at issue in Printz v. United States, 13 the federal imperatives improperly\\ncommandeer state officers or agents:\\n It is an essential attribute of the States’ retained sovereignty that\\n they remain independent and autonomous within their proper\\n sphere of authority. See Texas v. White, 7 Wall. [700,] 725 [(1868)].\\n It is no more compatible with this independence and autonomy\\n that their officers be “dragooned” (as Judge Fernandez put it in his\\n dissent below, [Mack v. United States], 66 F.3d[ 1025,] 1035 [(9th\\n Cir. 1995)]) into administering federal law, than it would be\\n compatible with the independence and autonomy of the United\\n States that its officers be impressed into service for the execution\\n of state laws. 14\\n Similarly, § 1912(e) provides that “[n]o foster care placement may be\\nordered” unless there is “qualified expert witness[]” testimony “that the\\ncontinued custody of the child by the parent or Indian custodian is likely to\\nresult in serious emotional or physical damage to the child.” 15 This places the\\nburden on a State, not a court, to present expert witness testimony in order to\\neffectuate foster care for Indian children. If the federal government has\\nconcluded that such testimony is necessary in every case involving an Indian\\nchild’s foster care placement, then the federal government should provide it.\\nIt cannot require the States to do so.\\n\\n\\n\\n\\n 13 521 U.S. 898 (1997).\\n 14 Id. at 928.\\n 15 25 U.S.C. § 1912(e).\\n\\n 50\\n\\n No. 18-11479\\n The requirements in 25 U.S.C. § 1912(d) apply to termination of parental\\nrights, not just foster care placement. 16 The laws of Indiana, Louisiana, and\\nTexas each permit certain individuals to petition for the termination of\\nparental rights in some circumstances, 17 and § 1912(d) applies to all parties\\nseeking termination, not just state actors. 18 At least superficially, § 1912(d)\\nappears to be an evenhanded regulation of an activity in which both States and\\nprivate actors engage. 19 But it is far from clear based on the present record\\nthat § 1912(d) applies in a meaningful way to private actors and if so, how\\nmany private actors, as compared to state actors, have actually met its\\nrequirements. Additionally, it appears that the State plaintiffs contend that\\n“the incidental application to the States of a federal law of general applicability\\nexcessively interfered with the functioning of state governments.” 20 I would\\nremand for further factual development. It may be that in the vast majority of\\ninvoluntary parental termination proceedings, the party seeking the\\ntermination is a state official or agency. It also seems highly unlikely that\\nindividuals or private actors seeking termination of parental rights (if and\\nwhen permitted to do so under a State’s laws) will have been in a position “to\\nprovide remedial services and rehabilitative programs designed to prevent the\\nbreakup of the Indian family.” 21 It seems much more likely that these\\nrequirements fall, de facto, on the shoulders of state actors and agencies.\\n\\n\\n 16 Id. § 1912(d).\\n 17 See, e.g., IND. CODE §§ 31-35-2-4, 31-35-3.5-3 (2018); IND. CODE § 31-35-3-4 (2013);\\nLA. CHILD. CODE ANN. art. 1122 (2019); TEX. FAM. CODE ANN. § 102.005 (West 2019); TEX.\\nFAM. CODE ANN. § 161.005 (West Supp. 2019).\\n 18 25 U.S.C. § 1912(d).\\n 19 See Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1478 (2018) (“The\\n\\nanticommandeering doctrine does not apply when Congress evenhandedly regulates an\\nactivity in which both States and private actors engage.”).\\n 20 Printz v. United States, 521 U.S. 898, 932 (1997).\\n 21 25 U.S.C. § 1912(d).\\n\\n 51\\n\\n No. 18-11479\\n The records-keeping requirements in 25 U.S.C. § 1915(e) and 25 C.F.R.\\n§ 23.141 are direct orders to the States. 22 They do not apply to private parties\\nin parental termination or foster care placement proceedings. They do not\\napply “evenhandedly [to] an activity in which both States and private actors\\nengage.” 23\\n The Supreme Court expressly left open in Printz whether federal laws\\n“which require only the provision of information to the Federal Government”\\nare an unconstitutional commandeering of a State or its officers or agents. 24\\nBut the principles set forth in Printz lead to the conclusion that Congress is\\nwithout authority to order the States to provide the information required by\\n§ 1915(e) and related regulations. Even were the burden on the States of\\ncreating, maintaining, and supplying the required information “minimal and\\nonly temporary,” the Supreme Court has reasoned that “where . . . it is the\\nwhole object of the law to direct the functioning of the state executive, and\\nhence to compromise the structural framework of dual sovereignty, such a\\n‘balancing’ analysis is inappropriate.” 25 The Supreme Court stressed, “It is the\\nvery principle of separate state sovereignty that such a law offends, and no\\ncomparative assessment of the various interests can overcome that\\nfundamental defect.” 26\\n\\n\\n\\n\\n 22 Id. at § 1915(e) (“A record of each such placement, under State law, of an Indian\\nchild shall be maintained by the State in which the placement was made . . . .”); 25 C.F.R.\\n§ 23.141 (“The State must maintain a record of every voluntary or involuntary foster-care,\\npreadoptive, and adoptive placement of an Indian child . . . .”).\\n 23 Brackeen v. Bernhardt, __ F.3d __, __, 2019 WL 3759491, at *14 (5th Cir. 2019)\\n\\n(quoting Murphy, 138 S. Ct. at 1478).\\n 24 521 U.S. at 918.\\n 25 Id. at 932.\\n 26 Id.\\n\\n 52\\n\\n No. 18-11479\\n The panel’s majority opinion concludes that the requirements of 25\\nU.S.C. § 1915(e) and 25 C.F.R. § 23.141 do not commandeer state officers or\\nagents because they “regulate state activity and do not require states to enact\\nany laws or regulations, or to assist in the enforcement of federal statutes\\nregulating private individuals.” 27 But the statute orders States to maintain\\nrecords of each placement of an Indian child and requires those records to\\n“evidenc[e] the efforts to comply with the order of preference specified in this\\nsection.” 28 That directs States to assist in the enforcement of the ICWA by\\nrequiring States to document efforts to comply with the ICWA’s preferences.\\nThe panel’s majority opinion also cites three Supreme Court decisions, none of\\nwhich supports its holding regarding the creation and maintenance of\\nrecords. 29 The statute at issue in Condon prohibited States from disclosing or\\nselling personal information they obtained from drivers in the course of\\nlicensing drivers and vehicles, unless the driver consented to the disclosure or\\nsale of that information. 30 The Court’s decision in Condon focused on that\\nprohibition rather than the statute’s additional requirement that certain\\ninformation be disclosed to carry out the purposes of federal statutes including\\nthe Clean Air Act and the Anti Car Theft Act of 1992. 31 The Baker decision did\\nnot concern a requirement that States create and maintain records. 32 The\\nfederal statute at issue in Baker allowed a tax exemption for registered, but\\nnot bearer, bonds, and the statute “cover[ed] not only state bonds but also\\n\\n\\n 27 Brackeen, __ F.3d at __, 2019 WL 3759491, at *14.\\n 28 25 U.S.C. § 1915(e).\\n 29 Brackeen, __ F.3d at __, 2019 WL 3759491, at *14 (citing Reno v. Condon, 528 U.S.\\n\\n141, 151 (2000); Printz, 521 U.S. at 918; South Carolina v. Baker, 485 U.S. 505, 514 (1988)).\\n 30 Condon, 528 U.S. at 143-44 (citing the Driver’s Privacy Protection Act of 1994, 18\\n\\nU.S.C. §§ 2721-2725).\\n 31 Id. at 145, 148-51.\\n 32 See Baker, 485 U.S. at 508-10.\\n\\n 53\\n\\n No. 18-11479\\nbonds issued by the United States and private corporations.” 33 As already\\ndiscussed above, the Printz decision expressly left open the question of whether\\nfederal statutes requiring States to provide information was constitutional, 34\\nbut the rationale of Printz compels the conclusion that some of the ICWA’s\\ncommandments result in a commandeering of state officers and agents.\\n I agree with the panel’s majority opinion that in some respects, the ICWA\\n“merely require[s] states to ‘take administrative . . . action to comply with\\nfederal standards regulating’ child custody proceedings involving Indian\\nchildren, which is permissible under the Tenth Amendment.” 35 Unlike the\\ncongressional enactment at issue in Murphy, the ICWA does “confer . . . federal\\nrights on private actors interested in” 36 foster care placement, the termination\\nof parental rights to an Indian child, and adoption of Indian children. States\\ncannot override or ignore those private actors’ federal rights by failing to give\\nnotice to interested or affected parties or by failing to follow the placement\\npreferences expressed in the ICWA. If a State desires to place an Indian child\\nwith an individual or individuals other than the child’s birth parents, the State\\nmust respect the federal rights of those upon whom the ICWA confers an\\ninterest in the placement of the Indian child or Indian children more generally.\\nBut 25 U.S.C. § 1912(d) (to the extent it concerns foster care placement),\\n§ 1912(e), § 1915(e), and 25 C.F.R. § 23.141, require more than the\\naccommodation of private actors’ federal rights regarding the placement of\\nIndian children. Those statutes and regulations commandeer state officers or\\nagents by requiring them “to provide remedial services and rehabilitative\\n\\n\\n\\n 33 Id. at 510.\\n 34 Printz, 521 U.S. at 918.\\n 35 Brackeen, __ F.3d at __, 2019 WL 3759491, at *14 (quoting Baker, 485 U.S. at 515).\\n 36 Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1467 (2018).\\n\\n 54\\n\\n No. 18-11479\\nprograms designed to prevent the breakup of the Indian family” and to\\ndemonstrate that such “efforts have proved unsuccessful”; 37 to present\\n“qualified expert witnesses” to demonstrate “that the continued custody of the\\nchild by the parent or Indian custodian is likely to result in serious emotional\\nor physical damage to the child”; 38 and to create and maintain records of every\\nplacement of an Indian child as well as records “evidencing the efforts to\\ncomply with the order of preference specified in this section.” 39\\n That these statutes and regulations “serve[] very important purposes”\\nand that they are “most efficiently administered” at the state level is of no\\nmoment in a commandeering analysis. 40 As JUSTICE O-CONNOR, writing for\\nthe Court in New York v. United States, so eloquently expressed, “the\\nConstitution protects us from our own best intentions: It divides power among\\nsovereigns and among branches of government precisely so that we may resist\\nthe temptation to concentrate power in one location as an expedient solution\\nto the crisis of the day.” 41\\n\\n\\n\\n\\n 37 25 U.S.C. § 1912(d).\\n 38 Id. § 1912(e).\\n 39 Id. § 1915(e).\\n 40 Printz v. United States, 521 U.S. 898, 931-32 (1997).\\n 41 505 U.S. 144, 187 (1992).\\n\\n 55\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426459/\", \"author_raw\": \"PRISCILLA R. OWEN, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"WIENER"},"judge2":{"kind":"string","value":"DENNIS"},"judge3":{"kind":"string","value":"OWEN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WIENER\": \", Circuit\", \"DENNIS\": \", Circuit\", \"OWEN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4649206/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Chad Brackeen v. David Bernhardt\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nMODIFIED August 16, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n August 9, 2019\n No. 18-11479\n Lyle W. Cayce\n Clerk\nCHAD EVERET BRACKEEN; JENNIFER KAY BRACKEEN; STATE OF\nTEXAS; ALTAGRACIA SOCORRO HERNANDEZ; STATE OF INDIANA;\nJASON CLIFFORD; FRANK NICHOLAS LIBRETTI; STATE OF\nLOUISIANA; HEATHER LYNN LIBRETTI; DANIELLE CLIFFORD,\n\n Plaintiffs - Appellees\n\nv.\n\nDAVID BERNHARDT, SECRETARY, U.S. DEPARTMENT OF THE\nINTERIOR; TARA SWEENEY, in her official capacity as Acting Assistant\nSecretary for Indian Affairs; BUREAU OF INDIAN AFFAIRS; UNITED\nSTATES DEPARTMENT OF INTERIOR; UNITED STATES OF AMERICA;\nALEX AZAR, In his official capacity as Secretary of the United States\nDepartment of Health and Human Services; UNITED STATES\nDEPARTMENT OF HEALTH AND HUMAN SERVICES,\n\n Defendants - Appellants\n\n\nCHEROKEE NATION; ONEIDA NATION; QUINAULT INDIAN NATION;\nMORONGO BAND OF MISSION INDIANS,\n\n Intervenor Defendants - Appellants\n\n\n\n\n Appeals from the United States District Court\n for the Northern District of Texas\n\n No. 18-11479\nBefore WIENER, DENNIS, and OWEN, Circuit Judges.\nJAMES L. DENNIS, Circuit Judge:\n This case presents facial constitutional challenges to the Indian Child\nWelfare Act of 1978 (ICWA) and statutory and constitutional challenges to the\n2016 administrative rule (the Final Rule) that was promulgated by the\nDepartment of the Interior to clarify provisions of ICWA. Plaintiffs are the\nstates of Texas, Indiana, and Louisiana, and seven individuals seeking to adopt\nIndian children. Defendants are the United States of America, several federal\nagencies and officials in their official capacities, and five intervening Indian\ntribes. Defendants moved to dismiss the complaint for lack of subject matter\njurisdiction, but the district court denied the motion, concluding, as relevant\nto this appeal, that Plaintiffs had Article III standing. The district court then\ngranted summary judgment in favor of Plaintiffs, ruling that provisions of\nICWA and the Final Rule violated equal protection, the Tenth Amendment,\nthe nondelegation doctrine, and the Administrative Procedure Act.\nDefendants appealed. Although we AFFIRM the district court’s ruling that\nPlaintiffs had standing, we REVERSE the district court’s grant of summary\njudgment to Plaintiffs and RENDER judgment in favor of Defendants.\n BACKGROUND\n I. The Indian Child Welfare Act (ICWA)\n Congress enacted the Indian Child Welfare Act of 1978 (ICWA), 25\nU.S.C. §§ 1901 et seq., to address rising concerns over “abusive child welfare\npractices that resulted in the separation of large numbers of Indian children\nfrom their families and tribes through adoption or foster care placement,\nusually in non-Indian homes.” Miss. Band Choctaw Indians v. Holyfield, 490\n\n\n\n\n 2\n\n No. 18-11479\nU.S. 30, 32 (1989). Recognizing that a “special relationship” exists between the\nUnited States and Indian tribes, Congress made the following findings:\n Congress has plenary power over Indian affairs. 25 U.S.C. § 1901(1)\n(citing U.S. CONST. art. I, section 8, cl. 3 (“The Congress shall have Power . . .\nTo regulate Commerce . . . with the Indian Tribes.”)).\n “[T]here is no resource that is more vital to the continued existence and\nintegrity of Indian tribes than their children . . . .” Id. at § 1901(3).\n “[A]n alarmingly high percentage of Indian families are broken up by the\nremoval, often unwarranted, of their children from them by nontribal public\nand private agencies and that an alarmingly high percentage of such children\nare placed in non-Indian foster and adoptive homes and institutions.” Id. at\n§ 1901(4).\n “States exercising their recognized jurisdiction over Indian child custody\nproceedings through administrative and judicial bodies, have often failed to\nrecognize the essential tribal relations of Indian people and the cultural and\nsocial standards prevailing in Indian communities and families.” Id. at\n§ 1901(5).\n In light of these findings, Congress declared that it was the policy of the\nUnited States “to protect the best interests of Indian children and to promote\nthe stability and security of Indian tribes and families by the establishment of\nminimum Federal standards for the removal of Indian children from their\nfamilies and the placement of such children in foster or adoptive homes which\nwill reflect the unique values of Indian culture, and by providing for assistance\nto Indian tribes in the operation of child and family service programs.” Id. at\n§ 1902.\n ICWA applies in state court child custody proceedings involving an\n“Indian child,” defined as “any unmarried person who is under age eighteen\nand is either (a) a member of an Indian tribe or (b) is eligible for membership\n 3\n\n No. 18-11479\nin an Indian tribe and is the biological child of a member of an Indian tribe.”\nId. at § 1903(4). In proceedings for the foster care placement or termination of\nparental rights, ICWA provides “the Indian custodian of the child and the\nIndian child’s tribe [] a right to intervene at any point in the proceeding.” Id.\nat § 1911(c). Where such proceedings are involuntary, ICWA requires that the\nparent, the Indian custodian, the child’s tribe, or the Secretary of the United\nStates Department of the Interior (Secretary or Secretary of the Interior) be\nnotified of pending proceedings and of their right to intervene. Id. at § 1912.\nIn voluntary proceedings for the termination of parental rights or adoptive\nplacement of an Indian child, the parent can withdraw consent for any reason\nprior to entry of a final decree of adoption or termination, and the child must\nbe returned to the parent. Id. at § 1913(c). If consent was obtained through\nfraud or duress, a parent may petition to withdraw consent within two years\nafter the final decree of adoption and, upon a showing of fraud or duress, the\ncourt must vacate the decree and return the child to the parent. Id. at\n§ 1913(d). An Indian child, a parent or Indian custodian from whose custody\nthe child was removed, or the child’s tribe may file a petition in any court of\ncompetent jurisdiction to invalidate an action in state court for foster care\nplacement or termination of parental rights if the action violated any provision\nof ICWA §§ 1911–13. Id. at § 1914.\n ICWA further sets forth placement preferences for foster care,\npreadoptive, and adoptive proceedings involving Indian children. Section 1915\nrequires that “[i]n any adoptive placement of an Indian child under State law,\na preference shall be given, in the absence of good cause to the contrary, to a\nplacement with: (1) a member of the child’s extended family; (2) other members\nof the Indian child’s tribe; or (3) other Indian families.” Id. at § 1915(a).\nSimilar requirements are set for foster care or preadoptive placements. Id. at\n§ 1915(b). If a tribe establishes by resolution a different order of preferences,\n 4\n\n No. 18-11479\nthe state court or agency effecting the placement “shall follow [the tribe’s] order\nso long as the placement is the least restrictive setting appropriate to the\nparticular needs of the child.” Id. at § 1915(c).\n The state in which an Indian child’s placement was made shall maintain\nrecords of the placement, which shall be made available at any time upon\nrequest by the Secretary or the child’s tribe. Id. at § 1915(e). A state court\nentering a final decree in an adoptive placement “shall provide the Secretary\nwith a copy of the decree or order” and information as necessary regarding “(1)\nthe name and tribal affiliation of the child; (2) the names and addresses of the\nbiological parents; (3) the names and addresses of the adoptive parents; and\n(4) the identity of any agency having files or information relating to such\nadoptive placement.” Id. at § 1951(a). ICWA’s severability clause provides\nthat “[i]f any provision of this chapter or the applicability thereof is held\ninvalid, the remaining provisions of this chapter shall not be affected thereby.”\nId. at § 1963.\n II. The Final Rule\n ICWA provides that “the Secretary [of the Interior] shall promulgate\nsuch rules and regulations as may be necessary to carry out [its] provisions.”\n25 U.S.C. § 1952. In 1979, the Bureau of Indian Affairs (BIA) promulgated\nguidelines (the “1979 Guidelines”) intended to assist state courts in\nimplementing ICWA but without “binding legislative effect.” Guidelines for\nState Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26,\n1979). The 1979 Guidelines left the “primary responsibility” of interpreting\ncertain language in ICWA “with the [state] courts that decide Indian child\ncustody cases.” Id. However, in June 2016, the BIA promulgated the Final\nRule to “clarify the minimum Federal standards governing implementation of\n[ICWA]” and to ensure that it “is applied in all States consistent with the Act’s\nexpress language, Congress’s intent in enacting the statute, and to promote\n 5\n\n No. 18-11479\nthe stability and security of Indian tribes and families.” 25 C.F.R. § 23.101;\nIndian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,868 (June 14,\n2016). The Final Rule explained that while the BIA “initially hoped that\nbinding regulations would not be necessary to carry out [ICWA], a third of a\ncentury of experience has confirmed the need for more uniformity in the\ninterpretation and application of this important Federal law.” 81 Fed. Reg. at\n38,782.\n The Final Rule provides that states have the responsibility of\ndetermining whether a child is an “Indian child” subject to ICWA’s\nrequirements. 25 C.F.R. §§ 23.107–22; 81 Fed. Reg. at 38,778, 38,869–73. The\nFinal Rule also sets forth notice and recordkeeping requirements for states, see\n25 U.S.C. §§ 23.140–41; 81 Fed. Reg. at 38,778, 38,875–76, and requirements\nfor states and individuals regarding voluntary proceedings and parental\nwithdrawal of consent, see 25 C.F.R. §§ 23.124–28; 81 Fed. Reg. at 38,778,\n38,873–74. The Final Rule also restates ICWA’s placement preferences and\nclarifies when they apply and when states may depart from them. See 25\nC.F.R. §§ 23.129–32; 81 Fed. Reg. at 38,778, 38,874–75.\n III. The Instant Action\n A. Parties\n 1. Plaintiffs\n Plaintiffs in this action are the states of Texas, Louisiana, and Indiana, 1\n(collectively, the “State Plaintiffs”), and seven individual Plaintiffs—Chad and\nJennifer Brackeen (the “Brackeens”), Nick and Heather Libretti (the\n“Librettis”), Altagracia Socorro Hernandez (“Hernandez”), and Jason and\n\n\n 1 There are three federally recognized tribes in Texas: the Yselta del Sur Pueblo, the\nKickapoo Tribe, and the Alabama-Coushatta Tribe. There are four federally recognized\ntribes in Louisiana: the Chitimacha Tribe, the Coushatta Tribe, the Tunica-Biloxi Tribe, and\nthe Jena Band of Choctaw Indians. There is one federally recognized tribe in Indiana: the\nPokagon Band of Potawatomi Indians.\n 6\n\n No. 18-11479\nDanielle Clifford (the “Cliffords”) (collectively, “Individual Plaintiffs”) (together\nwith State Plaintiffs, “Plaintiffs”).\n a. The Brackeens & A.L.M.\n At the time their initial complaint was filed in the district court, the\nBrackeens sought to adopt A.L.M., who falls within ICWA’s definition of an\n“Indian Child.” His biological mother is an enrolled member of the Navajo\nNation and his biological father is an enrolled member of the Cherokee Nation.\nWhen A.L.M. was ten months old, Texas’s Child Protective Services (“CPS”)\nremoved him from his paternal grandmother’s custody and placed him in foster\ncare with the Brackeens. Both the Navajo Nation and the Cherokee Nation\nwere notified pursuant to ICWA and the Final Rule. A.L.M. lived with the\nBrackeens for more than sixteen months before they sought to adopt him with\nthe support of his biological parents and paternal grandmother. In May 2017,\na Texas court, in voluntary proceedings, terminated the parental rights of\nA.L.M.’s biological parents, making him eligible for adoption under Texas law.\nShortly thereafter, the Navajo Nation notified the state court that it had\nlocated a potential alternative placement for A.L.M. with non-relatives in New\nMexico, though this placement ultimately failed to materialize. In July 2017,\nthe Brackeens filed an original petition for adoption, and the Cherokee Nation\nand Navajo Nation were notified in compliance with ICWA. The Navajo Nation\nand the Cherokee Nation reached an agreement whereby the Navajo Nation\nwas designated as A.L.M.’s tribe for purposes of ICWA’s application in the state\nproceedings. No one intervened in the Texas adoption proceeding or otherwise\nformally sought to adopt A.L.M. The Brackeens entered into a settlement with\nthe Texas state agency and A.L.M.’s guardian ad litem specifying that, because\nno one else sought to adopt A.L.M., ICWA’s placement preferences did not\napply. In January 2018, the Brackeens successfully petitioned to adopt A.L.M.\nThe Brackeens initially alleged in their complaint that they would like to\n 7\n\n No. 18-11479\ncontinue to provide foster care for and possibly adopt additional children in\nneed, but their experience adopting A.L.M. made them reluctant to provide\nfoster care for other Indian children in the future. Since their complaint was\nfiled, the Brackeens have sought to adopt A.L.M.’s sister, Y.R.J. in Texas state\ncourt. Y.R.J., like her brother, is an Indian Child for purposes of ICWA. The\nNavajo Nation contests the adoption. On February 2, 2019, the Texas court\ngranted the Brackeens’ motion to declare ICWA inapplicable as a violation of\nthe Texas constitution, but “conscientiously refrain[ed]” from ruling on the\nBrackeens’ claims under the United States Constitution pending our\nresolution of the instant appeal.\n b. The Librettis & Baby O.\n The Librettis live in Nevada and sought to adopt Baby O. when she was\nborn in March 2016. Baby O.’s biological mother, Hernandez, wished to place\nBaby O. for adoption at her birth, though Hernandez has continued to be a part\nof Baby O.’s life and she and the Librettis visit each other regularly. Baby O.’s\nbiological father, E.R.G., descends from members of the Ysleta del sur Pueblo\nTribe (the “Pueblo Tribe”), located in El Paso, Texas, and was a registered\nmember at the time Baby O. was born. The Pueblo Tribe intervened in the\nNevada custody proceedings seeking to remove Baby O. from the Librettis.\nOnce the Librettis joined the challenge to the constitutionality of the ICWA\nand the Final Rule, the Pueblo Tribe indicated that it was willing settle. The\nLibrettis agreed to a settlement with the tribe that would permit them to\npetition for adoption of Baby O. The Pueblo Tribe agreed not to contest the\nLibrettis’ adoption of Baby O., and on December 19, 2018, the Nevada state\ncourt issued a decree of adoption, declaring that the Librettis were Baby O.’s\nlawful parents. Like the Brackeens, the Librettis alleged that they intend to\nprovide foster care for and possibly adopt additional children in need but are\nreluctant to foster Indian children after this experience.\n 8\n\n No. 18-11479\n c. The Cliffords & Child P.\n The Cliffords live in Minnesota and seek to adopt Child P., whose\nmaternal grandmother is a registered member of the White Earth Band of\nOjibwe Tribe (the “White Earth Band”). Child P. is a member of the White\nEarth Band for purposes of ICWA’s application in the Minnesota state court\nproceedings. Pursuant to ICWA section 1915’s placement preferences, county\nofficials removed Child P. from the Cliffords’ custody and, in January 2018,\nplaced her in the care of her maternal grandmother, whose foster license had\nbeen revoked. Child P.’s guardian ad litem supports the Cliffords’ efforts to\nadopt her and agrees that the adoption is in Child P.’s best interest. The\nCliffords and Child P. remain separated, and the Cliffords face heightened\nlegal barriers to adopting her. On January 17, 2019, the Minnesota court\ndenied the Cliffords’ motion for adoptive placement.\n 2. Defendants\n Defendants are the United States of America; the United States\nDepartment of the Interior and its Secretary Ryan Zinke, in his official\ncapacity; the BIA and its Director Bryan Rice, in his official capacity; the BIA\nPrincipal Assistant Secretary for Indian Affairs John Tahsuda III, in his\nofficial capacity; and the Department of Health and Human Services (“HHS”)\nand its Secretary Alex M. Azar II, in his official capacity (collectively the\n“Federal Defendants”). Shortly after this case was filed in the district court,\nthe Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo\nBand of Mission Indians (collectively, the “Tribal Defendants”) moved to\nintervene, and the district court granted the motion. On appeal, we granted\n\n\n\n\n 9\n\n No. 18-11479\nthe Navajo Nation’s motion to intervene as a defendant 2 (together with Federal\nand Tribal Defendants, “Defendants”).\n B. Procedural History\n Plaintiffs filed the instant action against the Federal Defendants in\nOctober 2017, alleging that the Final Rule and certain provisions of ICWA are\nunconstitutional and seeking injunctive and declaratory relief. Plaintiffs\nargued that ICWA and the Final Rule violated equal protection and\nsubstantive due process under the Fifth Amendment and the\nanticommandeering doctrine that arises from the Tenth Amendment.\nPlaintiffs additionally sought a declaration that provisions of ICWA and the\nFinal Rule violated the nondelegation doctrine and the Administrative\nProcedure Act (APA). Defendants moved to dismiss, alleging that Plaintiffs\nlacked standing. The district court denied the motion. All parties filed cross-\nmotions for summary judgment. The district court granted Plaintiffs’ motion\nfor summary judgment in part, concluding that ICWA and the Final Rule\nviolated equal protection, the Tenth Amendment, and the nondelegation\ndoctrine, and that the challenged portions of the Final Rule were invalid under\nthe APA. 3 Defendants appealed. A panel of this court subsequently stayed the\ndistrict court’s judgment pending further order of this court. In total, fourteen\namicus briefs were filed in this court, including a brief in support of Plaintiffs\nand affirmance filed by the state of Ohio; and a brief in support of Defendants\nand reversal filed by the states of California, Alaska, Arizona, Colorado, Idaho,\n\n\n\n 2 The Navajo Nation had previously moved to intervene twice in the district court.\nThe first motion was for the limited purpose of seeking dismissal pursuant to Rule 19, which\nthe district court denied. The Navajo Nation filed a second motion to intervene for purposes\nof appeal after the district court’s summary judgment order. The district court deferred\ndecision on the motion pending further action by this court, at which time the Navajo Nation\nfiled the motion directly with this court.\n 3 The district court denied Plaintiffs’ substantive Due Process claim, from which\n\nPlaintiffs do not appeal.\n 10\n\n No. 18-11479\nIllinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi,\nMontana, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Virginia,\nWashington, and Wisconsin.\n STANDARD OF REVIEW\n We review a district court’s grant of summary judgment de novo. See\nTexas v. United States, 497 F.3d 491, 495 (5th Cir. 2007). Summary judgment\nis appropriate when the movant has demonstrated “that there is no genuine\ndispute as to any material fact and the movant is entitled to judgment as a\nmatter of law.” FED. R. CIV. P. 56(a). A genuine dispute of material fact exists\n“if the evidence is such that a reasonable jury could return a verdict for the\nnonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).\n DISCUSSION\n I. Article III Standing\n Defendants first contend that Plaintiffs lack standing to challenge ICWA\nand the Final Rule. The district court denied Defendants’ motion to dismiss\non this basis, concluding that Individual Plaintiffs had standing to bring an\nequal protection claim; State Plaintiffs had standing to challenge provisions of\nICWA and the Final Rule on the grounds that they violated the Tenth\nAmendment and the nondelegation doctrine; and all Plaintiffs had standing to\nbring an APA claim challenging the validity of the Final Rule.\n Article III limits the power of federal courts to “Cases” and\n“Controversies.” See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing\nU.S. CONST. art. III, § 2). “Standing to sue is a doctrine rooted in the traditional\nunderstanding of a case or controversy.” Id. To meet the Article III standing\nrequirement, plaintiffs must demonstrate “(1) an injury that is (2) fairly\ntraceable to the defendant’s allegedly unlawful conduct and that is (3) likely to\nbe redressed by the requested relief.” Lujan v. Defs. of Wildlife, 504 U.S. 555,\n590 (1992) (internal quotations omitted). A plaintiff seeking equitable relief\n 11\n\n No. 18-11479\nmust demonstrate a likelihood of future injury in addition to past harm. See\nCity of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). This injury must be\n“concrete and particularized” and “actual or imminent, not conjectural or\nhypothetical.” See Lujan, 504 U.S. at 560 (cleaned up). “[S]tanding is not\ndispensed in gross,” and “a plaintiff must demonstrate standing for each claim\nhe seeks to press and for each form of relief that is sought.” Town of Chester,\nN.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. Fed.\nElection Comm’n, 554 U.S. 724, 734 (2008)). “[T]he presence of one party with\nstanding is sufficient to satisfy Article III’s case-or-controversy requirement.”\nRumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2\n(2006). “This court reviews questions of standing de novo.” Nat’l Rifle Ass’n of\nAm., Inc. v. McCraw, 719 F.3d 338, 343 (5th Cir. 2013).\n A. Standing to Bring Equal Protection Claim\n Plaintiffs challenged ICWA sections 1915(a)–(b), 1913(d), and 1914 and\nFinal Rule sections 23.129–32 on equal protection grounds, alleging that these\nprovisions impose regulatory burdens on non-Indian families seeking to adopt\nIndian children that are not similarly imposed on Indian families who seek to\nadopt Indian children. The district court concluded that Individual Plaintiffs\nsuffered and continued to suffer injuries when their efforts to adopt Indian\nchildren were burdened by ICWA and the Final Rule; that their injuries were\nfairly traceable to ICWA and the Final Rule because these authorities\nmandated state compliance; and that these injuries were redressable because\nif ICWA and the Final Rule were invalidated, then state courts would no longer\nbe required to follow them. Defendants disagree, arguing that the Individual\nPlaintiffs cannot demonstrate an injury in fact or redressability and thus lack\nstanding to bring an equal protection claim. For the reasons below, we\nconclude that the Brackeens have standing to assert an equal protection claim\nas to ICWA sections 1915(a)–(b) and Final Rule sections 23.129–32, but as\n 12\n\n No. 18-11479\ndiscussed below, not as to ICWA sections 1913–14. Accordingly, because one\nPlaintiff has standing, the “case-or-controversy requirement” is satisfied as to\nthis claim, and we do not analyze whether any other Individual Plaintiff has\nstanding to raise it. 4 See Rumsfeld, 547 U.S. at 53 n.2.\n The district court concluded that ICWA section 1913(d), which allows a\nparent to petition the court to vacate a final decree of adoption on the grounds\nthat consent was obtained through fraud or duress, left the Brackeens’\nadoption of A.L.M. vulnerable to collateral attack for two years. Defendants\nargue that section 1914, 5 and not section 1913(d), applies to the Brackeens’\nstate court proceedings and that, in any event, an injury premised on potential\nfuture collateral attack under either provision is too speculative. We need not\ndecide which provision applies here, as neither the Brackeens nor any of the\nIndividual Plaintiffs havesuffered an injury under either provision. Plaintiffs\ndo not assert that A.L.M.’s biological parents, the Navajo Nation, or any other\nparty seeks to invalidate the Brackeens’ adoption of A.L.M. under either\nprovision. Plaintiffs’ proffered injury under section 1913 or section 1914 is\ntherefore too speculative to support standing. See Lujan, 504 U.S. at 560; see\nalso Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (“[T]hreatened\ninjury must be certainly impending to constitute injury in fact, and []\n[a]llegations of possible future injury are not sufficient.” (cleaned up)). To the\nextent Plaintiffs argue that an injury arises from their attempts to avoid\n\n\n 4 State Plaintiffs argue that they have standing to bring an equal protection challenge\nin parens patriae on behalf of their citizens. We disagree. See South Carolina v. Katzenbach,\n383 U.S. 301, 324 (1966) (“[A] State [does not] have standing as the parent of its citizens to\ninvoke [the Fifth Amendment Due Process Clause] against the Federal Government, the\nultimate parens patriae of every American citizen.”).\n 5 “Any Indian child who is the subject of any action for foster care placement or\n\ntermination of parental rights under State law, any parent or Indian custodian from whose\ncustody such child was removed, and the Indian child’s tribe may petition any court of\ncompetent jurisdiction to invalidate such action upon a showing that such action violated any\nprovision of sections 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914.\n 13\n\n No. 18-11479\ncollateral attack under section 1914 by complying with sections 1911–13,\n“costs incurred to avoid injury are insufficient to create standing” where the\ninjury is not certainly impending. See Clapper, 568 U.S. at 417.\n The district court also concluded that ICWA section 1915, and\nsections 23.129–32 of the Final Rule, which clarify section 1915, gave rise to\nan injury from an increased regulatory burden. We agree. Prior to the\nfinalization of the Brackeens’ adoption of A.L.M., the Navajo Nation notified\nthe state court that it had located a potential alternative placement for A.L.M.\nin New Mexico. Though that alternative placement ultimately failed to\nmaterialize, the regulatory burdens ICWA section 1915 and Final Rule\nsections 23.129–32 imposed on the Brackeens in A.L.M.’s adoption\nproceedings, which were ongoing at the time the complaint was filed, are\nsufficient to demonstrate injury. See Contender Farms, L.L.P. v. U.S. Dep’t of\nAgric., 779 F.3d 258, 266 (5th Cir. 2015) (“An increased regulatory burden\ntypically satisfies the injury in fact requirement.”); see also Rockwell Int’l Corp.\nv. United States, 549 U.S. 457, 473–74 (2007) (standing is assessed at the time\nthe complaint was filed); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.\n(TOC), Inc., 528 U.S. 167, 184 (2000) (discussing Lyons, 461 U.S. at 108, and\nfinding the injury requirement satisfied where the alleged harmful conduct\nwas occurring when the complaint was filed).\n Defendants contend that the Brackeens’ challenge to section 1915 and\nsections 23.129–32 is moot. They argue that, because the Brackeens’ adoption\nof A.L.M. was finalized in January 2018 and the Navajo Nation will not seek\nto challenge the adoption, section 1915’s placement preferences no longer\napply in A.L.M.’s adoption proceedings. Plaintiffs argue that section 1915’s\nplacement preferences impose on them the ongoing injury of increased\nregulatory burdens in their proceedings to adopt A.L.M.’s sister, Y.R.J., which\nthe Navajo Nation currently opposes in Texas state court.\n 14\n\n No. 18-11479\n “A corollary to this case-or-controversy requirement is that an actual\ncontroversy must be extant at all stages of review, not merely at the time the\ncomplaint is filed.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71\n(2013). “[A] case is moot when the issues presented are no longer live or the\nparties lack a legally cognizable interest in the outcome.” Powell v.\nMcCormack, 395 U.S. 486, 496 (1969)(internal quotation marks omitted).\nHowever, mootness will not render a case non-justiciable where the dispute is\none that is “capable of repetition, yet evading review.” See Murphy v. Hunt,\n455 U.S. 478, 482 (1982). “That exception applies where (1) the challenged\naction is in its duration too short to be fully litigated prior to cessation or\nexpiration, and (2) there is a reasonable expectation that the same complaining\nparty will be subject to the same action again.” Davis v. Fed. Election Comm’n,\n554 U.S. 724, 735 (2008) (internal citations and quotations omitted). Here, the\nBrackeens were unable to fully litigate a challenge to section 1915 before\nsuccessfully adopting A.L.M. Additionally, they have demonstrated a\nreasonable expectation that they will be subject to section 1915’s regulatory\nburdens in their adoption proceedings involving A.L.M.’s sister, Y.R.J. Thus,\nthe Brackeens’ challenge to section 1915 is justiciable on the grounds that it is\ncapable of repetition, yet evading review. See Hunt, 455 U.S. at 482.\n Having thus found an injury with respect to ICWA section 1915 and\nFinal Rule sections 23.129–32, we consider whether causation and\nredressability are met here. See Lujan, 504 U.S. at 590. The Brackeens’\nalleged injury is fairly traceable to the actions of at least some of the Federal\nDefendants, who bear some responsibility for the regulatory burdens imposed\nby ICWA and the Final Rule. See Contender Farms, L.L.P., 779 F.3d at 266\n(noting that causation “flow[ed] naturally from” a regulatory injury).\nAdditionally, the Brackeens have demonstrated a likelihood that their injury\nwill be redressed by a favorable ruling of this court. In the Brackeens’ ongoing\n 15\n\n No. 18-11479\nproceedings to adopt Y.R.J., the Texas court has indicated that it will refrain\nfrom ruling on the Brackeens’ federal constitutional claims pending a ruling\nfrom this court. Accordingly, Plaintiffs have standing to bring an equal\nprotection claim challenging ICWA section 1915(a)–(b) and Final Rule sections\n23.129–32. See Lujan, 504 U.S. at 590; Rumsfeld, 547 U.S. at 53 n.2.\n B. Standing to Bring Administrative Procedure Act Claim\n Plaintiffs first argue that ICWA does not authorize the Secretary of the\nInterior to promulgate binding rules and regulations, and the Final Rule is\ntherefore invalid under the APA. The district court ruled that State Plaintiffs\nhad standing to bring this claim, determining that the Final Rule injured State\nPlaintiffs by intruding upon their interests as quasi-sovereigns to control the\ndomestic affairs within their states. 6 A state may be entitled to “special\nsolicitude” in our standing analysis if the state is vested by statute with a\nprocedural right to file suit to protect an interest and the state has suffered an\ninjury to its “quasi-sovereign interests.” Massachusetts v. EPA, 549 U.S. 497,\n518–20 (2007) (holding that the Clean Air Act provided Massachusetts a\nprocedural right to challenge the EPA’s rulemaking, and Massachusetts\nsuffered an injury in its capacity as a quasi-sovereign landowner due to rising\nsea levels associated with climate change). Applying Massachusetts, this court\nin Texas v. United States held that Texas had standing to challenge the\nDepartment of Homeland Security’s implementation and expansion of the\nDeferred Action for Childhood Arrivals program (DACA) under the APA. See\n809 F.3d 134, 152 (5th Cir. 2015). This court reasoned that Texas was entitled\nto special solicitude on the grounds that the APA created a procedural right to\n\n\n\n 6The district court also found an injury based on the Social Security Act’s conditioning\nof funding on states’ compliance with ICWA. However, because we find that Plaintiffs have\nstanding on other grounds, we decline to decide whether they have demonstrated standing\nbased on an alleged injury caused by the SSA.\n 16\n\n No. 18-11479\nchallenge the DHS’s actions, and DHS’s actions affected states’ sovereign\ninterest in creating and enforcing a legal code. See id. at 153 (internal\nquotations omitted).\n Likewise, here, the APA provides State Plaintiffs a procedural right to\nchallenge the Final Rule. See id.; 5 U.S.C. § 702. Moreover, State Plaintiffs\nallege that the Final Rule affects their sovereign interest in controlling child\ncustody proceedings in state courts. See Texas, 809 F.3d at 153 (recognizing\nthat, pursuant to a sovereign interest in creating and enforcing a legal code,\nstates may have standing based on, inter alia, federal preemption of state law).\nThus, State Plaintiffs are entitled to special solicitude in our standing inquiry.\nWith this in mind, we find that the elements of standing are satisfied. If, as\nState Plaintiffs alleged, the Secretary promulgated a rule binding on states\nwithout the authority to do so, then State Plaintiffs have suffered a concrete\ninjury to their sovereign interest in controlling child custody proceedings that\nwas caused by the Final Rule. Additionally, though state courts and agencies\nare not bound by this court’s precedent, a favorable ruling from this court\nwould remedy the alleged injury to states by making their compliance with\nICWA and the Final Rule optional rather than compulsory. See Massachusetts,\n549 U.S. at 521 (finding redressability where the requested relief would prompt\nthe agency to “reduce th[e] risk” of harm to the state).\n C. Standing to Bring Tenth Amendment Claim\n For similar reasons, the district court found, and we agree, that State\nPlaintiffs have standing to challenge provisions of ICWA and the Final Rule\nunder the Tenth Amendment. The imposition of regulatory burdens on State\nPlaintiffs is sufficient to demonstrate an injury to their sovereign interest in\ncreating and enforcing a legal code to govern child custody proceedings in state\ncourts. See Texas, 809 F.3d at 153. Additionally, the causation and\nredressability requirements are satisfied here, as a favorable ruling from this\n 17\n\n No. 18-11479\ncourt would likely redress State Plaintiffs’ injury by lifting the mandatory\nburdens ICWA and the Final Rule impose on states. See Lujan, 504 U.S. at\n590.\n D. Standing to Bring Nondelegation Claim\n Finally, Plaintiffs contend that ICWA section 1915(c), which allows a\ntribe to establish a different order of section 1915(a)’s placement preferences,\nis an impermissible delegation of legislative power that binds State Plaintiffs.\nDefendants argue that State Plaintiffs cannot demonstrate an injury, given the\nlack of evidence that a tribe’s reordering of section 1915(a)’s placement\npreferences has affected any children in Texas, Indiana, or Louisiana or that\nsuch impact is “certainly impending.” State Plaintiffs respond that tribes can\nchange ICWA’s placement preferences at any time and that at least one tribe,\nthe Alabama-Coushatta Tribe of Texas, has already done so. We conclude that\nState Plaintiffs have demonstrated injury and causation with respect to this\nclaim, as State Plaintiffs’ injury from the Alabama-Coushatta Tribe’s decision\nto depart from ICWA section 1915’s placement preferences is concrete and\nparticularized and not speculative. See Lujan, 504 U.S. at 560. Moreover, a\nfavorable ruling from this court would redress State Plaintiffs’ injury by\nmaking a state’s compliance with a tribe’s alternative order of preferences\nunder ICWA section 1915(c) optional rather than mandatory. See id.\n Accordingly, having found that State Plaintiffs have standing on the\naforementioned claims, we proceed to the merits of these claims. We note at\nthe outset that ICWA is entitled to a “presumption of constitutionality,” so long\nas Congress enacted the statute “based on one or more of its powers\nenumerated in the Constitution.” See United States v. Morrison, 529 U.S. 598,\n607 (2000). “Due respect for the decisions of a coordinate branch of\nGovernment demands that we invalidate a congressional enactment only upon\n\n\n 18\n\n No. 18-11479\na plain showing that Congress has exceeded its constitutional bounds.” Id.\n(citing, among others, United States v. Harris, 106 U.S. 629, 635 (1883)).\n II. Equal Protection\n The Equal Protection Clause of the Fourteenth Amendment prohibits\nstates from “deny[ing] to any person within its jurisdiction the equal protection\nof the laws.” U.S. CONST., amend. 14, § 1. This clause is implicitly incorporated\ninto the Fifth Amendment’s guarantee of due process. See Bolling v. Sharpe,\n347 U.S. 497, 499 (1954). We apply the same analysis with respect to equal\nprotection claims under the Fifth and Fourteenth Amendments. See Richard\nv. Hinson, 70 F.3d 415, 417 (5th Cir. 1995). In evaluating an equal protection\nclaim, strict scrutiny applies to laws that rely on classifications of persons\nbased on race. See id. But where the classification is political, rational basis\nreview applies. See Morton v. Mancari, 417 U.S. 535, 555 (1974). The district\ncourt granted summary judgment on behalf of Plaintiffs, concluding that\nsection 1903(4)—setting forth ICWA’s definition of “Indian Child” for purposes\nof determining when ICWA applies in state child custody proceedings—was a\nrace-based classification that could not withstand strict scrutiny. 7 On appeal,\nthe parties disagree as to whether section 1903(4)’s definition of “Indian Child”\nis a political or race-based classification and which level of scrutiny applies.\n“We review the constitutionality of federal statutes de novo.” Nat’l Rifle Ass’n\n\n\n\n\n 7 As described above, we conclude that Plaintiffs have standing to challenge ICWA\nsection 1915(a)–(b) and Final Rule sections 23.129–32 on equal protection grounds. The\ndistrict court’s analysis of whether the ICWA classification was political or race-based focused\non ICWA section 1903(4), presumably because section 1903(4) provides a threshold definition\nof “Indian child” that must be met for any provision of ICWA to apply in child custody\nproceedings in state court. Because we are satisfied that our analysis would produce the\nsame result with respect to section 1903(4) and the specific provisions Plaintiffs have\nstanding to challenge, we similarly confine our discussion of whether ICWA presents a\npolitical or race-based classification to section 1903(4).\n 19\n\n No. 18-11479\nof Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d\n185, 192 (5th Cir. 2012).\n A. Level of Scrutiny\n We begin by determining whether ICWA’s definition of “Indian child” is\na race-based or political classification and, consequently, which level of\nscrutiny applies. The district court concluded that ICWA’s “Indian Child”\ndefinition was a race-based classification. We conclude that this was error.\nCongress has exercised plenary power “over the tribal relations of the Indians\n. . . from the beginning, and the power has always been deemed a political one,\nnot subject to be controlled by the judicial department of the government.”\nLone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903). The Supreme Court’s\ndecisions “leave no doubt that federal legislation with respect to Indian tribes\n. . . is not based upon impermissible racial classifications.” United States v.\nAntelope, 430 U.S. 641, 645 (1977). “Literally every piece of legislation dealing\nwith Indian tribes and reservations . . . single[s] out for special treatment a\nconstituency of tribal Indians living on or near reservations.” Mancari, 417\nU.S. at 552. “If these laws, derived from historical relationships and explicitly\ndesigned to help only Indians, were deemed invidious racial discrimination, an\nentire Title of the United States Code (25 U.S.C.) would be effectively erased\nand the solemn commitment of the Government toward the Indians would be\njeopardized.” Id.\n In Morton v. Mancari, the Supreme Court rejected a challenge to a law\naffording to qualified Indian applicants—those having one-fourth or more\ndegree Indian blood with membership in a federally recognized tribe 8—a hiring\n\n\n 8 The United States currently recognizes 573 Tribal entities. See 84 Fed. Reg. 1,200\n(Feb. 1, 2019). Federal recognition “is a formal political act confirming the tribe’s existence\nas a distinct political society, and institutionalizing the government-to-government\nrelationship between the tribe and the federal government.” See California Valley Miwok\nTribe v. United States, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (quoting COHEN’S HANDBOOK OF\n 20\n\n No. 18-11479\npreference over non-Indians within the BIA. Id. at 555. The Court recognized\nthat central to the resolution of the issue was “the unique legal status of Indian\ntribes under federal law and upon the plenary power of Congress . . . to legislate\non behalf of federally recognized Indian tribes.” Id. at 551. It reasoned that\nthe BIA’s hiring preference was “granted to Indians not as a discrete racial\ngroup, but, rather, as members of quasi-sovereign tribal entities whose lives\nand activities are governed by the BIA in a unique fashion.” Id. at 554. The\npreference was thus a non-racial “employment criterion reasonably designed\nto further the cause of Indian self-government and to make the BIA more\nresponsive to the needs of its constituent groups. It [was] directed to\nparticipation by the governed in the governing agency.” Id. at 553–54. The\ndisadvantages to non-Indians resulting from the hiring preferences were an\nintentional and “desirable feature of the entire program for self-government.” 9\nId. at 544.\n\n\n\n\nFEDERAL INDIAN LAW § 3.02[3], at 138 (2005 ed.) (internal quotation marks omitted)). It “[i]s\na prerequisite to the protection, services, and benefits of the Federal Government available\nto those that qualify.” 25 C.F.R. § 83.2.\n 9 Plaintiffs argue that, unlike the law in Mancari, ICWA is not a law promoting tribal\n\nself-governance. However, prior to enacting ICWA, Congress considered testimony from the\nTribal Chief of the Mississippi Band of Choctaw Indians about the devastating impacts of\nremoving Indian children from tribes and placing them for adoption and foster care in non-\nIndian homes:\n Culturally, the chances of Indian survival are significantly reduced if our\n children, the only real means for the transmission of the tribal heritage, are to\n be raised in non-Indian homes and denied exposure to the ways of their People.\n Furthermore, these practices seriously undercut the tribes’ ability to continue\n as self-governing communities. Probably in no area is it more important that\n tribal sovereignty be respected than in an area as socially and culturally\n determinative as family relationships.\nHolyfield, 490 U.S. at 34. This testimony undoubtedly informed Congress’s finding that\nchildren are the most vital resource “to the continued existence and integrity of Indian\ntribes.” 25 U.S.C. § 1901(3). Thus, interpreting ICWA as related to tribal self-government\nand the survival of tribes makes the most sense in light of Congress’s explicit intent in\nenacting the statute. See id.\n 21\n\n No. 18-11479\n The district court construed Mancari narrowly and distinguished it for\ntwo primary reasons: First, the district court found that the law in Mancari\nprovided special treatment “only to Indians living on or near reservations.”\nSecond, the district court concluded that ICWA’s membership eligibility\nstandard for an Indian child does not rely on actual tribal membership as did\nthe statute in Mancari. The district court reasoned that, whereas the law in\nMancari “applied ‘only to members of ‘federally recognized’ tribes which\noperated to exclude many individuals who are racially to be classified as\nIndians,’” ICWA’s definition of “Indian child” extended protection to children\nwho were eligible for membership in a federally recognized tribe and had a\nbiological parent who was a member of a tribe. The district court, citing the\ntribal membership laws of several tribes, including the Navajo Nation,\nconcluded that “[t]his means one is an Indian child if the child is related to a\ntribal ancestor by blood.”\n We disagree with the district court’s reasoning and conclude that\nMancari controls here. As to the district court’s first distinction, Mancari’s\nholding does not rise or fall with the geographical location of the Indians\nreceiving “special treatment.” See Mancari, 417 U.S. at 552. The Supreme\nCourt has long recognized Congress’s broad power to regulate Indians and\nIndian tribes on and off the reservation. See e.g., United States v. McGowan,\n302 U.S. 535, 539 (1938) (“Congress possesses the broad power of legislating\nfor the protection of the Indians wherever they may be within the territory of\nthe United States.”); Perrin v. United States, 232 U.S. 478, 482 (1914)\n(acknowledging Congress’s power to regulate Indians “whether upon or off a\nreservation and whether within or without the limits of a state”).\n Second, the district court concluded that, unlike the statute in Mancari,\nICWA’s definition of Indian child extends to children who are merely eligible\nfor tribal membership because of their ancestry. However, ICWA’s definition\n 22\n\n No. 18-11479\nof “Indian child” is not based solely on tribal ancestry or race. ICWA defines\nan “Indian child” as “any unmarried person who is under age eighteen and is\neither (a) a member of an Indian tribe or (b) is eligible for membership in an\nIndian tribe and is the biological child of a member of an Indian tribe.” 25\nU.S.C. § 1903(4). As Defendants explain, under some tribal membership laws,\neligibility extends to children without Indian blood, such as the descendants of\nformer slaves of tribes who became members after they were freed, or the\ndescendants of adopted white persons. Accordingly, a child may fall under\nICWA’s membership eligibility standard because his or her biological parent\nbecame a member of a tribe, despite not being racially Indian. Additionally,\nmany racially Indian children, such as those belonging to non-federally\nrecognized tribes, do not fall within ICWA’s definition of “Indian child.”\nConditioning a child’s eligibility for membership, in part, on whether a\nbiological parent is a member of the tribe is therefore not a proxy for race, as\nthe district court concluded, but rather for not-yet-formalized tribal affiliation,\nparticularly where the child is too young to formally apply for membership in\na tribe. 10\n Our conclusion that ICWA’s definition of Indian child is a political\nclassification is consistent with both the Supreme Court’s holding in Mancari\nand this court’s holding in Peyote Way Church of God, Inc. v. Thornburgh, 922\nF.2d 1210, 1212 (5th Cir. 1991). In Mancari, the hiring preference extended to\nindividuals who were one-fourth or more degree Indian blood and a member of\n\n\n\n 10 The Navajo Nation’s membership code is instructive on these points, despite the\ndistrict court’s reliance on it to the contrary. The Navajo Nation explains that, under its\nlaws, “blood alone is never determinative of membership.” The Navajo Nation will only grant\nan application for membership “if the individual has some tangible connection to the Tribe,”\nsuch as the ability to speak the Navajo language or time spent living among the Navajo\npeople. “Having a biological parent who is an enrolled member is per se evidence of such a\nconnection.” Additionally, individuals will not be granted membership in the Navajo Nation,\nregardless of their race or ancestry, if they are members of another tribe.\n 23\n\n No. 18-11479\na federally recognized tribe. See 417 U.S. at 554. Similarly, in Peyote Way,\nthis court considered whether equal protection was violated by federal and\nstate laws prohibiting the possession of peyote by all persons except members\nof the Native American Church of North America (NAC), who used peyote for\nreligious purposes. See 922 F.2d at 1212. Applying Mancari’s reasoning, this\ncourt upheld the preference on the basis that membership in NAC “is limited\nto Native American members of federally recognized tribes who have at least\n25% Native American ancestry, and therefore represents a political\nclassification.” Id. at 1216. ICWA’s “Indian child” eligibility provision\nsimilarly turns, at least in part, on whether the child is eligible for membership\nin a federally recognized tribe. See California Valley Miwok Tribe v. United\nStates, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (federal recognition “is a formal\npolitical act” that “institutionaliz[es] the government-to-government\nrelationship between the tribe and the federal government.”); 25 U.S.C.\n§ 1903(4).\n The district court concluded, and Plaintiffs now argue, that ICWA’s\ndefinition “mirrors the impermissible racial classification in Rice [v. Cayetano,\n528 U.S. 495 (2000)], and is legally and factually distinguishable from the\npolitical classification in Mancari.” The Supreme Court in Rice concluded that\na provision of the Hawaiian Constitution that permitted only “Hawaiian”\npeople to vote in the statewide election for the trustees of the Office of\nHawaiian Affairs (OHA) violated the Fifteenth Amendment. 528 U.S. at 515.\n“Hawaiian” was defined by statute as “any descendant of the aboriginal peoples\ninhabiting the Hawaiian Islands which exercised sovereignty and subsisted in\nthe Hawaiian Islands in 1778, and which peoples thereafter have continued to\nreside in Hawaii.” Id. The Court noted the state legislature’s express purpose\nin using ancestry as a proxy for race and held that “[d]istinctions between\ncitizens solely because of their ancestry are by their very nature odious to a\n 24\n\n No. 18-11479\nfree people whose institutions are founded upon the doctrine of equality.” Id.\nat 514–17 (citing Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).\nDistinguishing Mancari, the Court noted that its precedent did not afford\nHawaiians a protected status like that of Indian tribes; that the OHA elections\nwere an affair of the state and not of a “separate quasi sovereign” like a tribe;\nand that extending “Mancari to this context would [] permit a State, by racial\nclassification, to fence out whole classes of its citizens from decisionmaking in\ncritical state affairs.” Id. at 522.\n Rice is distinguishable from the present case for several reasons. Unlike\nRice, which involved voter eligibility in a state-wide election for a state agency,\nthere is no similar concern here that applying Mancari would permit “by racial\nclassification, [the fencing] out [of] whole classes of [a state’s] citizens from\ndecisionmaking in critical state affairs.” See 528 U.S. at 518–22. Additionally,\nas discussed above, ICWA’s definition of “Indian child,” unlike the challenged\nlaw in Rice, does not single out children “solely because of their ancestry or\nethnic characteristics.” See id. at 515 (emphasis added). Further, unlike the\nlaw in Rice, ICWA is a federal law enacted by Congress for the protection of\nIndian children and tribes. See Rice, 528 U.S. at 518 (noting that to sustain\nHawaii’s restriction under Mancari, it would have to “accept some beginning\npremises not yet established in [its] case law,” such as that Congress “has\ndetermined that native Hawaiians have a status like that of Indians in\norganized tribes”); see also Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th\nCir. 2004) (rejecting an equal protection challenge brought by Native\nHawaiians, who were excluded from the U.S. Department of the Interior’s\nregulatory tribal acknowledgement process, and concluding that the\nrecognition of Indian tribes was political). Additionally, whereas the OHA\nelections in Rice were squarely state affairs, state court adoption proceedings\ninvolving Indian children are simultaneously affairs of states, tribes, and\n 25\n\n No. 18-11479\nCongress. See 25 U.S.C. § 1901(3) (“[T]here is no resource that is more vital to\nthe continued existence and integrity of Indian tribes than their children.”).\nBecause we find Rice inapplicable, and Mancari controlling here, we conclude,\ncontrary to the district court’s determination, that ICWA’s definition of “Indian\nchild” is a political classification subject to rational basis review. See Mancari,\n417 U.S. at 555.\n B. Rational Basis Review\n Having so determined that rational basis review applies, we ask whether\n“the special treatment can be tied rationally to the fulfillment of Congress’s\nunique obligation toward the Indians.” Mancari, 417 U.S. at 555. Given\nCongress’s explicit findings and stated objectives in enacting ICWA, we\nconclude that the special treatment ICWA affords Indian children is rationally\ntied to Congress’s fulfillment of its unique obligation toward Indian nations\nand its stated purpose of “protect[ing] the best interests of Indian children and\n[] promot[ing] the stability and security of Indian tribes.” See 25 U.S.C.\n§§ 1901–02; see also Mancari, 417 U.S. at 555. ICWA section 1903(4)’s\ndefinition of an “Indian child” is a political classification that does not violate\nequal protection.\n III. Tenth Amendment\n The district court concluded that ICWA sections 1901–23 11 and 1951–\n52 12 violated the anticommandeering doctrine by requiring state courts and\nexecutive agencies to apply federal standards to state-created claims. The\n\n\n\n\n 11 ICWA sections 1901–03 set forth Congress’s findings, declaration of policy, and\ndefinitions. Sections 1911–23 govern child custody proceedings, including tribal court\njurisdiction, notice requirements in involuntary and voluntary state proceedings,\ntermination of parental rights, invalidation of state proceedings, placement preferences, and\nagreements between states and tribes.\n 12 Section 1951 sets forth information-sharing requirements for state courts. Section\n\n1952 authorizes the Secretary of the Interior to promulgate necessary rules and regulations.\n 26\n\n No. 18-11479\ndistrict court also considered whether ICWA preempts conflicting state law\nunder the Supremacy Clause and concluded that preemption did not apply\nbecause the law “directly regulated states.” Defendants argue that the\nanticommandeering doctrine does not prevent Congress from requiring state\ncourts to enforce substantive and procedural standards and precepts, and that\nICWA sets minimum procedural standards that preempt conflicting state law.\nWe examine the constitutionality of the challenged provisions of ICWA below\nand conclude that they preempt conflicting state law and do not violate the\nanticommandeering doctrine. .\n A. Anticommandeering Doctrine\n The Tenth Amendment provides that “[t]he powers not delegated to the\nUnited States by the Constitution, nor prohibited by it to the States, are\nreserved to the States respectively, or to the people.” U.S. CONST. amend. X.\nCongress’s legislative powers are limited to those enumerated under the\nConstitution. Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1476\n(2018). “[C]onspicuously absent from the list of powers given to Congress is\nthe power to issue direct orders to the governments of the States.” Id. The\nanticommandeering doctrine, an expression of this limitation on Congress,\nprohibits federal laws commanding the executive or legislative branch of a\nstate government to act or refrain from acting. 13 Id. at 1478 (holding that a\nfederal law prohibiting state authorization of sports gambling violated the\nanticommandeering rule by “unequivocally dictat[ing] what a state legislature\n\n\n\n 13 Though Congress is prohibited from commandeering states, it can “encourage a\nState to regulate in a particular way, or . . . hold out incentives to the States as a method of\ninfluencing a State’s policy choices.” New York, 505 U.S. at 166. For example, Congress may\nalso condition the receipt of federal funds under its spending power. See id. at 167.\nDefendants also contend that ICWA is authorized under Congress’s Spending Clause powers\nbecause Congress conditioned federal funding in Title IV-B and E of the Social Security Act\non states’ compliance with ICWA. However, because we conclude that ICWA is\nconstitutionally permissible on other bases, we need not reach this argument.\n 27\n\n No. 18-11479\nmay and may not do”); Printz v. United States, 521 U.S. 898, 935 (1997)\n(holding that a federal law requiring state chief law enforcement officers to\nconduct background checks on handgun purchasers “conscript[ed] the State’s\nofficers directly” and was invalid); New York v. United States, 505 U.S. 144,\n175–76 (1992) (holding that a federal law impermissibly commandeered states\nto implement federal legislation when it gave states “[a] choice between two\nunconstitutionally coercive” alternatives: to either dispose of radioactive waste\nwithin their boundaries according to Congress’s instructions or “take title” to\nand assume liabilities for the waste).\n 1. State Courts\n Defendants argue that because the Supremacy Clause requires the\nenforcement of ICWA and the Final Rule by state courts, these provisions do\nnot run afoul of the anticommandeering doctrine. We agree. The Supremacy\nClause provides that “the Laws of the United States . . . shall be the supreme\nLaw of the Land; and the Judges in every State shall be bound thereby, any\nThing in the Constitution or Laws of any State to the Contrary\nnotwithstanding.” U.S. CONST. art. VI, cl. 2. In setting forth the\nanticommandeering doctrine, the Supreme Court drew a distinction between a\nstate’s courts and its political branches. The Court acknowledged that\n“[f]ederal statutes enforceable in state court do, in a sense, direct state judges\nto enforce them, but this sort of federal “direction” of state judges is mandated\nby the text of the Supremacy Clause.” New York, 505 U.S. at 178–79 (internal\nquotation marks omitted). Early laws passed by the first Congresses requiring\nstate court action “establish, at most, that the Constitution was originally\nunderstood to permit imposition of an obligation on state judges to enforce\nfederal prescriptions, insofar as those prescriptions related to matters\nappropriate for the judicial power.” Printz, 521 U.S. at 907. State courts were\nviewed as distinctive because, “unlike [state] legislatures and executives, they\n 28\n\n No. 18-11479\napplied the law of other sovereigns all the time,” including as mandated by the\nSupremacy Clause. Id. Thus, to the extent provisions of ICWA and the Final\nRule require state courts to enforce federal law, the anticommandeering\ndoctrine does not apply. See id. at 928–29 (citing Testa v. Katt, 330 U.S. 386\n(1947), “for the proposition that state courts cannot refuse to apply federal lawa\nconclusion mandated by the terms of the Supremacy Clause”).\n 2. State Agencies\n Plaintiffs next challenge several provisions of ICWA that they contend\ncommandeer state executive agencies, including sections 1912(a) (imposing\nnotice requirements on “the party seeking the foster care placement of, or\ntermination of parental rights to, an Indian child”), 1912(d) (requiring that\n“any party seeking to effect a foster care placement of, or termination of\nparental rights to, an Indian child under State law shall satisfy the court that\nactive efforts have been made to provide remedial services and rehabilitative\nprograms designed to prevent the breakup of the Indian family and that these\nefforts have proved unsuccessful.”), 1915(c) (requiring “the agency or court\neffecting [a] placement” adhere to the order of placement preferences\nestablished by the tribe), and 1915(e) (requiring that “the State” in which the\nplacement was made keep a record of each placement, evidencing the efforts to\ncomply with the order of preference, to be made available upon request of the\nSecretary or the child’s tribe). See 25 U.S.C. §§ 1912, 1915. Plaintiffs argue\nthat ICWA’s requirements on state agencies go further than the federal\nregulatory scheme invalidated in Printz and impermissibly impose costs that\nstates must bear. Defendants contend that the challenged provisions of ICWA\napply to private parties and state agencies alike and therefore do not violate\nthe anticommandeering doctrine.\n In Printz, the Supreme Court affirmed its prior holding that “[t]he\nFederal Government may not compel the States to enact or administer a\n 29\n\n No. 18-11479\nfederal regulatory program,” and “Congress cannot circumvent that\nprohibition by conscripting the State’s officers directly.” 521 U.S. at 925, 935\n(quoting New York, 505 U.S. at 188). The Printz Court, rejecting as irrelevant\nthe Government’s argument that the federal law imposed a minimal burden\non state executive officers, explained that it was not “evaluating whether the\nincidental application to the States of a federal law of general applicability\nexcessively interfered with the functioning of state governments,” but rather a\nlaw whose “whole object . . . [was] to direct the functioning of the state\nexecutive.” Id. at 931–32. Expanding upon this distinction, the Court in\nMurphy discussed Reno v. Condon, 528 U.S. 141 (2000), and South Carolina v.\nBaker, 485 U.S. 505 (1988), and held that “[t]he anticommandeering doctrine\ndoes not apply when Congress evenhandedly regulates an activity in which\nboth States and private actors engage.” 138 S. Ct. at 1478.\n In Condon, the Court upheld a federal regulatory scheme that restricted\nthe ability of states to disclose a driver’s personal information without consent.\n528 U.S. at 151. In determining that the anticommandeering doctrine did not\napply, the Court distinguished the law from those invalidated in New York and\nPrintz:\n [This law] does not require the States in their sovereign capacity\n to regulate their own citizens. The [law] regulates the States as\n the owners of [Department of Motor Vehicle] data bases. It does\n not require the South Carolina Legislature to enact any laws or\n regulations, and it does not require state officials to assist in the\n enforcement of federal statutes regulating private individuals.\nId. In Baker, the Court rejected a Tenth Amendment challenge to a provision\nof a federal statute that eliminated the federal income tax exemption for\ninterest earned on certain bonds issued by state and local governments unless\nthe bonds were registered, treating the provision “as if it directly regulated\nStates by prohibiting outright the issuance of [unregistered] bearer bonds.”\n485 U.S. at 507–08, 511. The Court reasoned that the provision at issue merely\n 30\n\n No. 18-11479\n“regulat[ed] a state activity” and did not “seek to control or influence the\nmanner in which States regulate private parties.” Id. at 514. “That a State\nwishing to engage in certain activity must take administrative and sometimes\nlegislative action to comply with federal standards regulating that activity is a\ncommonplace that presents no constitutional defect.” Id. at 514–15.\n“[S]ubstantial effort[s]” to comply with federal regulations are “an inevitable\nconsequence of regulating a state activity.” Id. at 514.\n In light of these cases, we conclude that the provisions of ICWA that\nPlaintiffs challenge do not commandeer state agencies. Sections 1912(a) and\n(d) impose notice and “active efforts” requirements on the “party” seeking the\nfoster care placement of, or termination of parental rights to, an Indian child.\nBecause both state agencies and private parties who engage in state child\ncustody proceedings may fall under these provisions, 1912(a) and (d)\n“evenhandedly regulate[] an activity in which both States and private actors\nengage.” 14 See Murphy, 138 S. Ct. at 1478. Moreover, sections 1915(c) and (e)\nimpose an obligation on “the agency or court effecting the placement” of an\nIndian child to respect a tribe’s order of placement preferences and require that\n“the State” maintain a record of each placement to be made available to the\nSecretary or child’s tribe. These provisions regulate state activity and do not\n\n\n\n 14Similarly, section 1912(e) provides that no foster care placement may be ordered in\ninvoluntary proceedings in state court absent “a determination, supported by clear and\nconvincing evidence, including testimony of qualified expert witnesses, that the continued\ncustody of the child by the parent or Indian custodian is likely to result in serious emotional\nor physical damage to the child.” See 25 U.S.C. § 1912(e). Section 1912(f) requires that no\ntermination of parental rights may be ordered in involuntary proceedings in state court\nabsent evidence beyond a reasonable doubt of the same. See id. at 1912(f). Neither section\nexpressly refers to state agencies and, in conjunction with section 1912(d), both sections must\nbe reasonably read to refer to “any party” seeking the foster care placement of, or the\ntermination of parental rights to, an Indian child. Thus, like section 1912(d), sections\n1912(e)–(f) “evenhandedly regulate[] an activity in which both States and private actors\nengage” and do not run afoul of the anticommandeering doctrine. See Murphy, 138 S. Ct. at\n1478; see also Condon, 528 U.S. at 151.\n 31\n\n No. 18-11479\nrequire states to enact any laws or regulations, or to assist in the enforcement\nof federal statutes regulating private individuals. See Condon, 528 U.S. at 151;\nBaker, 485 U.S. at 514; see also Printz, 521 U.S. at 918 (distinguishing statutes\nthat merely require states to provide information to the federal government\nfrom those that command state executive agencies to actually administer\nfederal programs). To the contrary, they merely require states to “take\nadministrative . . . action to comply with federal standards regulating” child\ncustody proceedings involving Indian children, which is permissible under the\nTenth Amendment. 15 See Baker, 485 U.S. at 514–15.\n B. Preemption\n Defendants argue that, to the extent there is a conflict between ICWA\nand applicable state laws in child custody proceedings, ICWA preempts state\nlaw. The Supremacy Clause provides that federal law is the “supreme Law of\n\n\n\n 15 In ruling otherwise, the district court discussed Murphy and emphasized that\nadhering to the anticommandeering rule is necessary to protect constitutional principles of\nstate sovereignty, promote political accountability, and prevent Congress from shifting the\ncosts of regulation to states. See Murphy, 138 S. Ct. at 1477. These principles do not compel\nthe result reached by the district court. See id. First, the anticommandeering doctrine is not\nnecessary here to protect constitutional principles of state sovereignty because ICWA\nregulates the actions of state executive agencies in their role as child advocates and\ncustodians, and not in their capacity as sovereigns enforcing ICWA. See id. at 1478; see also\nCondon, 528 U.S. at 151 (concluding that the law in question there “does not require the\nStates in their sovereign capacity to regulate their own citizens [but] regulates the States as\nthe owners of data bases”). The need to promote political accountability is minimized here\nfor similar reasons, as ICWA does not require states to regulate their own citizens. See\nMurphy, 138 S. Ct. at 1477 (noting concern that, if states are required to impose a federal\nregulation on their voters, the voters will not know who to credit or blame and responsibility\nwill be “blurred”). Finally, the need to prevent Congress from shifting the costs of regulation\nto states is also minimized here, where some of the requirements at issue, like those in\nsections 1912(d) and 1915(c), simply regulate a state’s actions during proceedings that it\nwould already be expending resources on. ICWA’s recordkeeping and notice requirements\ncould impose costs on states, but we cannot conclude that these costs compel application of\nthe anticommandeering doctrine. See Condon, 528 U.S. at 150 (a federal law that “require[d]\ntime and effort on the part of state employees” was constitutional); Baker, 485 U.S. at 515\n(that states may have to raise funds necessary to comply with federal regulations “presents\nno constitutional defect”).\n 32\n\n No. 18-11479\nthe Land . . . any Thing in the Constitution or Laws of any State to the Contrary\nnotwithstanding.” U.S. CONST. art. VI, cl. 2. Conflict preemption occurs when\n“Congress enacts a law that imposes restrictions or confers rights on private\nactors; a state law confers rights or imposes restrictions that conflict with the\nfederal law; and therefore the federal law takes precedence and the state law\nis preempted.” Murphy, 138 S. Ct. at 1480. For a federal law to preempt\nconflicting state law, two requirements must be satisfied: The challenged\nprovision of the federal law “must represent the exercise of a power conferred\non Congress by the Constitution” and “must be best read as one that regulates\nprivate actors” by imposing restrictions or conferring rights. Id. at 1479–80.\nThe district court concluded that preemption does not apply here, as ICWA\nregulates states rather than private actors. We review de novo whether a\nfederal law preempts a state statute or common law cause of action. See\nFriberg v. Kansas City S. Ry. Co., 267 F.3d 439, 442 (5th Cir. 2001).\n Congress enacted ICWA to “establish[] minimum Federal standards for\nthe removal of Indian children from their families and the placement of such\nchildren in foster or adoptive homes which will reflect the unique values of\nIndian culture.” 25 U.S.C. § 1902. Defendants contend that these minimum\nfederal standards preempt conflicting state laws. Plaintiffs contend that\npreemption does not apply here because ICWA regulates states and not\nindividuals, and nothing in the Constitution gives Congress authority to\nregulate the adoption of Indian children under state jurisdiction.\n ICWA specifies that Congress’s authority to regulate the adoption of\nIndian children arises under the Indian Commerce Clause as well as “other\nconstitutional authority.” 25 U.S.C. § 1901(1). The Indian Commerce Clause\nprovides that “[t]he Congress shall have Power To . . . regulate Commerce . . .\nwith the Indian Tribes.” U.S. CONST. art. I, § 8, cl. 3. The Supreme Court has\nrepeatedly held that the Indian Commerce Clause grants Congress plenary\n 33\n\n No. 18-11479\npower over Indian affairs. See Lara, 541 U.S. at 200 (noting that the Indian\nCommerce and Treaty Clauses are sources of Congress’s “plenary and\nexclusive” “powers to legislate in respect to Indian tribes”); Ramah Navajo Sch.\nBd., Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 837 (1982)\n(discussing Congress’s “broad power . . . to regulate tribal affairs under the\nIndian Commerce Clause”); Mancari, 417 U.S. at 551–52 (noting that “[t]he\nplenary power of Congress to deal with the special problems of Indians is\ndrawn both explicitly and implicitly from,” inter alia, the Indian Commerce\nClause). Plaintiffs do not provide authority to support a departure from that\nprinciple here.\n Moreover, ICWA clearly regulates private individuals. See Murphy, 138\nS. Ct. at 1479–80. In enacting the statute, Congress declared that it was the\ndual policy of the United States to protect the best interests of Indian children\nand promote the stability and security of Indian families and tribes. 25 U.S.C.\n§ 1902. Each of the challenged provisions applies within the context of state\ncourt proceedings involving Indian children and is informed by and designed\nto promote Congress’s goals by conferring rights upon Indian children and\nfamilies. 16 See H.R. REP. No. 95-1386, at 18 (1978) (“We conclude that rights\narising under [ICWA] may be enforced, as of right, in the courts of the States\nwhen their jurisdiction, as prescribed by local law, is adequate to the occasion.”\n\n\n 16 Arguably, two of the challenged provisions of ICWA could be construed to\nsimultaneously “confer[] rights” on Indian children and families while “imposing restrictions”\non state agencies. See Murphy, 138 S. Ct. at 1479–80. Section 1915(c) requires “the agency\nor court effecting [a] placement” to adhere to a tribe’s established order of placement\npreferences, and section 1915(e) requires states to keep records and make them available to\nthe Secretary and Indian tribes. 25 U.S.C. § 1915(c), (e). However, Murphy instructs that\nfor a provision of a federal statute to preempt state law, the provision must be “best read as\none that regulates private actors.” See 138 S. Ct. at 1479 (emphasis added). In light of\nCongress’s express purpose in enacting ICWA, the legislative history of the statute, and\nsection 1915’s scope in setting forth minimum standards for the “Placement of Indian\nchildren,” we conclude that these provisions are “best read” as regulating private actors by\nconferring rights on Indian children and families. See id.\n 34\n\n No. 18-11479\n(quoting Second Employers’ Liability Cases, 223 U.S. 1, 59 (1912))). Thus, to\nthe extent ICWA’s minimum federal standards conflict with state law, “federal\nlaw takes precedence and the state law is preempted.” See Murphy, 138 S. Ct.\nat 1480.\n IV. Nondelegation Doctrine\n Article I of the Constitution vests “[a]ll legislative Powers” in Congress.\nU.S. CONST. art. 1, § 1, cl. 1. “In a delegation challenge, the constitutional\nquestion is whether the statute has delegated legislative power to the agency.”\nWhitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). The limitations on\nCongress’s ability to delegate its legislative power are “less stringent in cases\nwhere the entity exercising the delegated authority itself possesses\nindependent authority over the subject matter.” See United States v. Mazurie,\n419 U.S. 544, 556–57 (1975). ICWA section 1915(c) allows Indian tribes to\nestablish through tribal resolution a different order of preferred placement\nthan that set forth in sections 1915(a) and (b). 17 Section 23.130 of the Final\nRule provides that a tribe’s established placement preferences apply over those\nspecified in ICWA. 18 The district court determined that these provisions\nviolated the nondelegation doctrine, reasoning that section 1915(c) grants\nIndian tribes the power to change legislative preferences with binding effect\non the states, and Indian tribes, like private entities, are not part of the federal\ngovernment of the United States and cannot exercise federal legislative or\nexecutive regulatory power over non-Indians on non-tribal lands.\n\n\n\n 17 The section provides: “In the case of a placement under subsection (a) or (b) of this\nsection, if the Indian child’s tribe shall establish a different order of preference by resolution,\nthe agency or court effecting the placement shall follow such order so long as the placement\nis the least restrictive setting appropriate to the particular needs of the child, as provided in\nsubsection (b) of this section.” 25 U.S.C. § 1915(c).\n 18 “If the Indian child’s Tribe has established by resolution a different order of\n\npreference than that specified in ICWA, the Tribe’s placement preferences apply.” 25 C.F.R.\n§ 23.130.\n 35\n\n No. 18-11479\n Defendants argue that the district court’s analysis of the\nconstitutionality of these provisions ignores the inherent sovereign authority\nof tribes. They contend that section 1915 merely recognizes and incorporates\na tribe’s exercise of its inherent sovereignty over Indian children and therefore\ndoes not—indeed cannot—delegate this existing authority to Indian tribes.\n The Supreme Court has long recognized that Congress may incorporate\nthe laws of another sovereign into federal law without violating the\nnondelegation doctrine. See Mazurie, 419 U.S. at 557 (“[I]ndependent tribal\nauthority is quite sufficient to protect Congress’ decision to vest in tribal\ncouncils this portion of its own authority ‘to regulate Commerce . . . with the\nIndian tribes.’”); United States v. Sharpnack, 355 U.S. 286, 293–94 (1958)\n(holding that a statute that prospectively incorporated state criminal laws “in\nforce at the time” of the alleged crime was a “deliberate continuing adoption by\nCongress” of state law as binding federal law in federal enclaves within state\nboundaries); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 80 (1824) (“Although\nCongress cannot enable a State to legislate, Congress may adopt the provisions\nof a State on any subject.”). “Indian tribes are unique aggregations possessing\nattributes of sovereignty over both their members and their territory.”\nMazurie, 419 U.S. at 557. Though some exercises of tribal power require\n“express congressional delegation,” the “tribes retain their inherent power to\ndetermine tribal membership [and] to regulate domestic relations among\nmembers . . . .” See Montana v. United States, 450 U.S. 544, 564 (1981); see\nalso Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 170 (1982) (“tribes retain\nthe power to create substantive law governing internal tribal affairs” like tribal\ncitizenship and child custody).\n In Mazurie, a federal law allowed the tribal council of the Wind River\nTribes, with the approval of the Secretary of the Interior, to adopt ordinances\nto control the introduction of alcoholic beverages by non-Indians on privately\n 36\n\n No. 18-11479\nowned land within the boundaries of the reservation. See 419 U.S. at 547, 557.\nThe Supreme Court held that the law did not violate the nondelegation\ndoctrine, focusing on the Tribes’ inherent power to regulate their internal and\nsocial relations by controlling the distribution and use of intoxicants within the\nreservation’s bounds. Id. Mazurie is instructive here. ICWA section 1915(c)\nprovides that a tribe may pass, by its own legislative authority, a resolution\nreordering the three placement preferences set forth by Congress in section\n1915(a). Pursuant to this section, a tribe may assess whether the most\nappropriate placement for an Indian child is with members of the child’s\nextended family, the child’s tribe, or other Indian families, and thereby\nexercise its “inherent power to determine tribal membership [and] regulate\ndomestic relations among members” and Indian children eligible for\nmembership. See Montana, 450 U.S. at 564.\n State Plaintiffs contend that Mazurie is distinguishable because it\ninvolves the exercise of tribal authority on tribal lands, whereas ICWA permits\nthe extension of tribal authority over states and persons on non-tribal lands.\nWe find this argument unpersuasive. It is well established that tribes have\n“sovereignty over both their members and their territory.” See Mazurie, 419\nU.S. at 557 (emphasis added). For a tribe to exercise its authority to determine\ntribal membership and to regulate domestic relations among its members, it\nmust necessarily be able to regulate all Indian children, irrespective of their\nlocation. 19 See Montana, 450 U.S. at 564 (tribes retain inherent power to\nregulate domestic relations and determine tribal membership); Merrion, 455\nU.S. at 170 (tribes retain power to govern tribal citizenship and child custody).\nSection 1915(c), by recognizing the inherent powers of tribal sovereigns to\n\n\n\n 19Indeed, as the BIA noted in promulgating the Final Rule, at least 78% of Native\nAmericans lived outside of Indian country as of 2016. See 81 Fed. Reg. at 38,778, 38,783.\n 37\n\n No. 18-11479\ndetermine by resolution the order of placement preferences applicable to an\nIndian child, is thus a “deliberate continuing adoption by Congress” of tribal\nlaw as binding federal law. See Sharpnack, 355 U.S. at 293–94; see also 25\nU.S.C. § 1915(c); 81 Fed. Reg. at 38,784 (the BIA noting that “through\nnumerous statutory provisions, ICWA helps ensure that State courts\nincorporate Indian social and cultural standards into decision-making that\naffects Indian children”). We therefore conclude that ICWA section 1915(c) is\nnot an unconstitutional delegation of Congressional legislative power to tribes,\nbut is an incorporation of inherent tribal authority by Congress. See Mazurie,\n419 U.S. at 544; Sharpnack, 355 U.S. at 293–94.\n V. The Final Rule\n The district court held that, to the extent sections 23.106–22, 23.124–32,\nand 23.140–41 of the Final Rule were binding on State Plaintiffs, they violated\nthe APA for three reasons: The provisions (1) purported to implement an\nunconstitutional statute; (2) exceeded the scope of the Interior Department’s\nstatutory regulatory authority to enforce ICWA with binding regulations; and\n(3) reflected an impermissible construction of ICWA section 1915. We examine\neach of these bases in turn.\n A. The Constitutionality of ICWA\n Because we concluded that the challenged provisions of ICWA are\nconstitutional, for reasons discussed earlier in this opinion, the district court’s\nfirst conclusion that the Final Rule was invalid because it implemented an\nunconstitutional statue was erroneous. Thus, the statutory basis of the Final\nRule is constitutionally valid.\n B. The Scope of the BIA’s Authority\n Congress authorized the Secretary of the Interior to promulgate rules\nand regulations that may be necessary to carry out the provisions of ICWA.\nSee 25 U.S.C. § 1952. Pursuant to this provision, the BIA, acting under\n 38\n\n No. 18-11479\nauthority delegated by the Interior Department, issued guidelines in 1979 for\nstate courts in Indian child custody proceedings that were “not intended to\nhave binding legislative effect.” 44 Fed. Reg. at 67,584. The BIA explained\nthat, generally, “when the Department writes rules needed to carry out\nresponsibilities Congress has explicitly imposed on the Department, those\nrules are binding.” Id. However, when “the Department writes rules or\nguidelines advising some other agency how it should carry out responsibilities\nexplicitly assigned to it by Congress, those rules or guidelines are not, by\nthemselves, binding.” Id. With respect to ICWA, the BIA concluded in 1979\nthat it was “not necessary” to issue binding regulations advising states how to\ncarry out the responsibilities Congress assigned to them; state courts were\n“fully capable” of implementing the responsibilities Congress imposed on them,\nand nothing in the language or legislative history of 25 U.S.C. § 1952 indicated\nthat Congress intended the BIA to exercise supervisory control over states. Id.\nHowever, in 2016, the BIA changed course and issued the Final Rule, which\nsets binding standards for state courts in Indian child-custody proceedings.\nSee 25 C.F.R. §§ 23.101, 23.106; 81 Fed. Reg. at 38,779, 38,785. The BIA\nexplained that its earlier, nonbinding guidelines were “insufficient to fully\nimplement Congress’s goal of nationwide protections for Indian children,\nparents, and Tribes.” 81 Fed. Reg. at 38,782. Without the Final Rule, the BIA\nstated, state-specific determinations about how to implement ICWA would\ncontinue “with potentially devastating consequences” for those Congress\nintended ICWA to protect. See id.\n In reviewing “an agency’s construction of the statute which it\nadministers,” we are “confronted with two questions.” Chevron, U.S.A., Inc. v.\nNat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). First, we must\nexamine whether the statute is ambiguous. Id. at 842. “If the intent of\nCongress is clear, that is the end of the matter; for the court, as well as the\n 39\n\n No. 18-11479\nagency, must give effect to the unambiguously expressed intent of Congress.”\nId. But “if the statute is silent or ambiguous with respect to the specific issue,\nthe question for the court is whether the agency’s answer is based on a\npermissible construction of the statute.” Id. at 842–43. We must uphold an\nagency’s reasonable interpretation of an ambiguous statute. Id. at 844.\n Under Chevron step one, the question is whether Congress\nunambiguously intended to grant the Department authority to promulgate\nbinding rules and regulations. ICWA provides that “the Secretary shall\npromulgate such rules and regulations as may be necessary to carry out the\nprovisions of this chapter.” 25 U.S.C. § 1952. The provision’s plain language\nconfers broad authority on the Department to promulgate rules and\nregulations it deems necessary to carry out ICWA. This language can be\nconstrued to grant the authority to issue binding rules and regulations;\nhowever, because “Congress has not directly addressed the precise question at\nissue,” we conclude that section 1952 is ambiguous. See Chevron, 467 U.S. at\n843.\n Moving to the second Chevron step, we must determine whether the\nBIA’s current interpretation of its authority to issue binding regulations\npursuant to section 1952 is reasonable. See 467 U.S. at 843–44. Defendants\nargue that section 1952’s language is substantively identical to other statutes\nconferring broad delegations of rulemaking authority. Indeed, the Supreme\nCourt has held that “[w]here the empowering provision of a statute states\nsimply that the agency may make . . . such rules and regulations as may be\nnecessary to carry out the provisions of this Act . . . the validity of a regulation\npromulgated thereunder will be sustained so long as it is reasonably related to\nthe purposes of the enabling legislation.” Mourning v. Family Publications\nServ., Inc., 411 U.S. 356, 369 (1973) (internal quotation marks omitted); see\nalso City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 306 (2013) (noting a lack of\n 40\n\n No. 18-11479\n“case[s] in which a general conferral of rulemaking or adjudicative authority\nhas been held insufficient to support Chevron deference for an exercise of that\nauthority within the agency’s substantive field”). Here, section 1952’s text is\nsubstantially similar to the language in Mourning, and the Final Rule’s\nbinding standards for Indian child custody proceedings are reasonably related\nto ICWA’s purpose of establishing minimum federal standards in child custody\nproceedings involving Indian children. See 25 U.S.C. § 1902. Thus, the Final\nRule is a reasonable exercise of the broad authority granted to the BIA by\nCongress in ICWA section 1952.\n Plaintiffs contend that the BIA reversed its position on the scope of its\nauthority to issue binding regulations after thirty-seven years and without\nexplanation and its interpretation was therefore not entitled to deference. We\ndisagree. “The mere fact that an agency interpretation contradicts a prior\nagency position is not fatal. Sudden and unexplained change, or change that\ndoes not take account of legitimate reliance on prior interpretation, may be\narbitrary, capricious [or] an abuse of discretion. But if these pitfalls are\navoided, change is not invalidating, since the whole point of Chevron is to leave\nthe discretion provided by the ambiguities of a statute with the implementing\nagency.” Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742 (1996)\n(internal citations and quotation marks omitted). The agency must provide\n“reasoned explanation” for its new policy, though “it need not demonstrate to\na court’s satisfaction that the reasons for the new policy are better than the\nreasons for the old one.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,\n515 (2009). “[I]t suffices that the new policy is permissible under the statute,\nthat there are good reasons for it, and that the agency believes it to be better,\nwhich the conscious change of course adequately indicates.” Id.\n The BIA directly addressed its reasons for departing from its earlier\ninterpretation that it had no authority to promulgate binding regulations,\n 41\n\n No. 18-11479\nexplaining that, under Supreme Court precedent, the text of section 1952\nconferred “a broad and general grant of rulemaking authority.” 81 Fed. Reg.\nat 38,785 (collecting Supreme Court cases). The BIA further discussed why it\nnow considered binding regulations necessary to implement ICWA: In 1979,\nthe BIA “had neither the benefit of the Holyfield Court’s carefully reasoned\ndecision nor the opportunity to observe how a lack of uniformity in the\ninterpretation of ICWA by State courts could undermine the statute’s\nunderlying purposes.” 81 Fed. Reg. at 38,787 (citing Holyfield, 490 U.S. at 30).\n In Holyfield, the Supreme Court considered the meaning of the term\n“domicile,” which ICWA section 1911 left undefined and the BIA left open to\nstate interpretation under its 1979 Guidelines. 490 U.S. at 43, 51. The Court\nheld that “it is most improbable that Congress would have intended to leave\nthe scope of the statute’s key jurisdictional provision subject to definition by\nstate courts as a matter of state law,” given that “Congress was concerned with\nthe rights of Indian families vis-à-vis state authorities” and considered “States\nand their courts as partly responsible for the problem it intended to correct”\nthrough ICWA. Id. at 45. Because Congress intended for ICWA to address a\nnationwide problem, the Court determined that the lack of nationwide\nuniformity resulting from varied state-law definitions of this term frustrated\nCongress’s intent. Id. The Holyfield Court’s reasoning applies here.\nCongress’s concern with safeguarding the rights of Indian families and\ncommunities was not limited to section 1911 and extended to all provisions of\nICWA, including those at issue here. Thus, as the BIA explained, all provisions\nof ICWA that it left open to state interpretation in 1979, including many that\nPlaintiffs now challenge, were subject to the lack of uniformity the Supreme\nCourt identified in Holyfield and determined was contrary to Congress’s intent.\n81 Fed. Reg. at 38,782. Thus, in light of Holyfield, the BIA has provided a\n“reasoned explanation” for departing from its earlier interpretation of its\n 42\n\n No. 18-11479\nauthority under section 1952 and for the need of binding regulations with\nrespect to ICWA. See Fox Television Stations, 556 U.S. at 515.\n In addition to assessing whether an agency’s interpretation of a statute\nis reasonable under Chevron, the APA requires that we “hold unlawful and set\naside agency action . . . found to be . . . arbitrary, capricious, an abuse of\ndiscretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).\nContrary to Plaintiffs’ contentions, the BIA explained that the Final Rule\nresulted from years of study and public outreach and participation. See 81 Fed.\nReg. 38,778, 38,784–85. In promulgating the rule, the BIA relied on its own\nexpertise in Indian affairs, its experience in administering ICWA and other\nIndian child-welfare programs, state interpretations and best practices, 20\npublic hearings, and tribal consultations. See id. Thus, the BIA’s current\ninterpretation is not “arbitrary, capricious, [or] an abuse of discretion” because\nit was not sudden and unexplained. See Smiley, 517 U.S. at 742; 5 U.S.C.\n§ 706(a)(2). The district court’s contrary conclusion was error.\n C. The BIA’s Construction of ICWA Section 1915\n ICWA section 1915 sets forth three preferences for the placement of\nIndian children unless good cause can be shown to depart from them. 25 U.S.C.\n§ 1915(a)–(b). The 1979 Guidelines initially advised that the term “good cause”\nin ICWA section 1915 “was designed to provide state courts with flexibility in\ndetermining the disposition of a placement proceeding involving an Indian\nchild.” 44 Fed. Reg. 67,584. However, section 23.132(b) of the Final Rule\nspecifies that “[t]he party seeking departure from [section 1915’s] placement\npreferences should bear the burden of proving by clear and convincing evidence\nthat there is ‘good cause’ to depart from the placement preferences.” 25 C.F.R.\n\n\n 20 Since ICWA’s enactment in 1978, several states have incorporated the statute’s\nrequirements into their own laws or have enacted detailed procedures for their state agencies\nto collaborate with tribes in child custody proceedings.\n 43\n\n No. 18-11479\n§ 23.132(b). The district court determined that Congress unambiguously\nintended the ordinary preponderance-of-the-evidence standard to apply, and\nthe BIA’s interpretation that a higher standard applied was therefore not\nentitled to Chevron deference.\n Defendants contend that the Final Rule’s clear-and-convincing standard\nis merely suggestive and not binding. They further aver that the Final Rule’s\nclarification of the meaning of “good cause” and imposition of a clear-and-\nconvincing-evidence standard are entitled to Chevron deference. Plaintiffs\nrespond that state courts have interpreted the clear-and-convincing standard\nas more than just suggestive in practice, and the Final Rule’s fixed definition\nof “good cause” is contrary to ICWA’s intent to provide state courts with\nflexibility.\n Though provisions of the Final Rule are generally binding on states, the\nBIA indicated that it did not intend for section 23.132(b) to establish a binding\nstandard. See 25 C.F.R. § 23.132 (“The party seeking departure from the\nplacement preferences should bear the burden of proving by clear and\nconvincing evidence that there is ‘good cause’ to depart from the placement\npreferences.” (emphasis added)). The BIA explained that “[w]hile the final rule\nadvises that the application of the clear and convincing standard ‘should’ be\nfollowed, it does not categorically require that outcome . . . [and] the\nDepartment declines to establish a uniform standard of proof on this issue.”\nSee 81 Fed. Reg. at 38,843.\n The BIA’s interpretation of section 1915 is also entitled to Chevron\ndeference. For purposes of Chevron step one, the statute is silent with respect\nto which evidentiary standard applies. See 25 U.S.C. § 1915; Chevron, 467 U.S.\nat 842. The district court relied on the canon of expressio unius est exclusio\nalterius (“the expression of one is the exclusion of others”) in finding that\nCongress unambiguously intended that a preponderance-of-the-evidence\n 44\n\n No. 18-11479\nstandard was necessary to show good cause under ICWA section 1915. The\ncourt reasoned that because Congress specified a heightened evidentiary\nstandard in other provisions of ICWA, but did not do so with respect to section\n1915, Congress did not intend for the heightened clear-and-convincing-\nevidence standard to apply. This was error. “When interpreting statutes that\ngovern agency action, . . . a congressional mandate in one section and silence\nin another often suggests not a prohibition but simply a decision not to\nmandate any solution in the second context, i.e., to leave the question to agency\ndiscretion.” Catawba Cty., N.C. v. E.P.A., 571 F.3d 20, 36 (D.C. Cir. 2009).\n“[T]hat Congress spoke in one place but remained silent in another . . . rarely\nif ever suffices for the direct answer that Chevron step one requires.” Id.\n(cleaned up); see also Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940\nF.2d 685, 694 (D.C. Cir. 1991) (“Under Chevron, we normally withhold\ndeference from an agency’s interpretation of a statute only when Congress has\ndirectly spoken to the precise question at issue, and the expressio canon is\nsimply too thin a reed to support the conclusion that Congress has clearly\nresolved this issue.”) (internal citations and quotation marks omitted).\n Under Chevron step two, the BIA’s current interpretation of the\napplicable evidentiary standard is reasonable. See Chevron, 467 U.S. at 844.\nThe BIA’s suggestion that the clear-and-convincing standard should apply was\nderived from the best practices of state courts. 81 Fed. Reg. at, 38,843. The\nFinal Rule explains that, since ICWA’s passage, “courts that have grappled\nwith the issue have almost universally concluded that application of the clear\nand convincing evidence standard is required as it is most consistent with\nCongress’s intent in ICWA to maintain Indian families and Tribes intact.” Id.\nBecause the BIA’s current interpretation of section 1915, as set forth in Final\nRule section 23.132(b), was based on its analysis of state cases and geared\ntoward furthering Congress’s intent, it is reasonable and entitled to Chevron\n 45\n\n No. 18-11479\ndeference. Moreover, the BIA’s current interpretation is nonbinding and\ntherefore consistent with the 1979 Guidelines in allowing state courts\nflexibility to determine “good cause.” Section 23.132(b) of the Final Rule is\nthus valid under the APA. See 5 U.S.C. § 706(a)(2).\n ***\n For these reasons, we conclude that Plaintiffs had standing to bring all\nclaims and that ICWA and the Final Rule are constitutional because they are\nbased on a political classification that is rationally related to the fulfillment of\nCongress’s unique obligation toward Indians; ICWA preempts conflicting state\nlaws and does not violate the Tenth Amendment anticommandeering doctrine;\nand ICWA and the Final Rule do not violate the nondelegation doctrine. We\nalso conclude that the Final Rule implementing the ICWA is valid because the\nICWA is constitutional, the BIA did not exceed its authority when it issued the\nFinal Rule, and the agency’s interpretation of ICWA section 1915 is reasonable.\nAccordingly, we AFFIRM the district court’s judgment that Plaintiffs had\nArticle III standing. But we REVERSE the district court’s grant of summary\njudgment for Plaintiffs and RENDER judgment in favor of Defendants on all\nclaims.\n\n\n\n\n 46\n\n No. 18-11479\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Chad Brackeen v. David Bernhardt\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nMODIFIED August 16, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 9, 2019\\n No. 18-11479\\n Lyle W. Cayce\\n Clerk\\nCHAD EVERET BRACKEEN; JENNIFER KAY BRACKEEN; STATE OF\\nTEXAS; ALTAGRACIA SOCORRO HERNANDEZ; STATE OF INDIANA;\\nJASON CLIFFORD; FRANK NICHOLAS LIBRETTI; STATE OF\\nLOUISIANA; HEATHER LYNN LIBRETTI; DANIELLE CLIFFORD,\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nDAVID BERNHARDT, SECRETARY, U.S. DEPARTMENT OF THE\\nINTERIOR; TARA SWEENEY, in her official capacity as Acting Assistant\\nSecretary for Indian Affairs; BUREAU OF INDIAN AFFAIRS; UNITED\\nSTATES DEPARTMENT OF INTERIOR; UNITED STATES OF AMERICA;\\nALEX AZAR, In his official capacity as Secretary of the United States\\nDepartment of Health and Human Services; UNITED STATES\\nDEPARTMENT OF HEALTH AND HUMAN SERVICES,\\n\\n Defendants - Appellants\\n\\n\\nCHEROKEE NATION; ONEIDA NATION; QUINAULT INDIAN NATION;\\nMORONGO BAND OF MISSION INDIANS,\\n\\n Intervenor Defendants - Appellants\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n\\n No. 18-11479\\nBefore WIENER, DENNIS, and OWEN, Circuit Judges.\\nJAMES L. DENNIS, Circuit Judge:\\n This case presents facial constitutional challenges to the Indian Child\\nWelfare Act of 1978 (ICWA) and statutory and constitutional challenges to the\\n2016 administrative rule (the Final Rule) that was promulgated by the\\nDepartment of the Interior to clarify provisions of ICWA. Plaintiffs are the\\nstates of Texas, Indiana, and Louisiana, and seven individuals seeking to adopt\\nIndian children. Defendants are the United States of America, several federal\\nagencies and officials in their official capacities, and five intervening Indian\\ntribes. Defendants moved to dismiss the complaint for lack of subject matter\\njurisdiction, but the district court denied the motion, concluding, as relevant\\nto this appeal, that Plaintiffs had Article III standing. The district court then\\ngranted summary judgment in favor of Plaintiffs, ruling that provisions of\\nICWA and the Final Rule violated equal protection, the Tenth Amendment,\\nthe nondelegation doctrine, and the Administrative Procedure Act.\\nDefendants appealed. Although we AFFIRM the district court’s ruling that\\nPlaintiffs had standing, we REVERSE the district court’s grant of summary\\njudgment to Plaintiffs and RENDER judgment in favor of Defendants.\\n BACKGROUND\\n I. The Indian Child Welfare Act (ICWA)\\n Congress enacted the Indian Child Welfare Act of 1978 (ICWA), 25\\nU.S.C. §§ 1901 et seq., to address rising concerns over “abusive child welfare\\npractices that resulted in the separation of large numbers of Indian children\\nfrom their families and tribes through adoption or foster care placement,\\nusually in non-Indian homes.” Miss. Band Choctaw Indians v. Holyfield, 490\\n\\n\\n\\n\\n 2\\n\\n No. 18-11479\\nU.S. 30, 32 (1989). Recognizing that a “special relationship” exists between the\\nUnited States and Indian tribes, Congress made the following findings:\\n Congress has plenary power over Indian affairs. 25 U.S.C. § 1901(1)\\n(citing U.S. CONST. art. I, section 8, cl. 3 (“The Congress shall have Power . . .\\nTo regulate Commerce . . . with the Indian Tribes.”)).\\n “[T]here is no resource that is more vital to the continued existence and\\nintegrity of Indian tribes than their children . . . .” Id. at § 1901(3).\\n “[A]n alarmingly high percentage of Indian families are broken up by the\\nremoval, often unwarranted, of their children from them by nontribal public\\nand private agencies and that an alarmingly high percentage of such children\\nare placed in non-Indian foster and adoptive homes and institutions.” Id. at\\n§ 1901(4).\\n “States exercising their recognized jurisdiction over Indian child custody\\nproceedings through administrative and judicial bodies, have often failed to\\nrecognize the essential tribal relations of Indian people and the cultural and\\nsocial standards prevailing in Indian communities and families.” Id. at\\n§ 1901(5).\\n In light of these findings, Congress declared that it was the policy of the\\nUnited States “to protect the best interests of Indian children and to promote\\nthe stability and security of Indian tribes and families by the establishment of\\nminimum Federal standards for the removal of Indian children from their\\nfamilies and the placement of such children in foster or adoptive homes which\\nwill reflect the unique values of Indian culture, and by providing for assistance\\nto Indian tribes in the operation of child and family service programs.” Id. at\\n§ 1902.\\n ICWA applies in state court child custody proceedings involving an\\n“Indian child,” defined as “any unmarried person who is under age eighteen\\nand is either (a) a member of an Indian tribe or (b) is eligible for membership\\n 3\\n\\n No. 18-11479\\nin an Indian tribe and is the biological child of a member of an Indian tribe.”\\nId. at § 1903(4). In proceedings for the foster care placement or termination of\\nparental rights, ICWA provides “the Indian custodian of the child and the\\nIndian child’s tribe [] a right to intervene at any point in the proceeding.” Id.\\nat § 1911(c). Where such proceedings are involuntary, ICWA requires that the\\nparent, the Indian custodian, the child’s tribe, or the Secretary of the United\\nStates Department of the Interior (Secretary or Secretary of the Interior) be\\nnotified of pending proceedings and of their right to intervene. Id. at § 1912.\\nIn voluntary proceedings for the termination of parental rights or adoptive\\nplacement of an Indian child, the parent can withdraw consent for any reason\\nprior to entry of a final decree of adoption or termination, and the child must\\nbe returned to the parent. Id. at § 1913(c). If consent was obtained through\\nfraud or duress, a parent may petition to withdraw consent within two years\\nafter the final decree of adoption and, upon a showing of fraud or duress, the\\ncourt must vacate the decree and return the child to the parent. Id. at\\n§ 1913(d). An Indian child, a parent or Indian custodian from whose custody\\nthe child was removed, or the child’s tribe may file a petition in any court of\\ncompetent jurisdiction to invalidate an action in state court for foster care\\nplacement or termination of parental rights if the action violated any provision\\nof ICWA §§ 1911–13. Id. at § 1914.\\n ICWA further sets forth placement preferences for foster care,\\npreadoptive, and adoptive proceedings involving Indian children. Section 1915\\nrequires that “[i]n any adoptive placement of an Indian child under State law,\\na preference shall be given, in the absence of good cause to the contrary, to a\\nplacement with: (1) a member of the child’s extended family; (2) other members\\nof the Indian child’s tribe; or (3) other Indian families.” Id. at § 1915(a).\\nSimilar requirements are set for foster care or preadoptive placements. Id. at\\n§ 1915(b). If a tribe establishes by resolution a different order of preferences,\\n 4\\n\\n No. 18-11479\\nthe state court or agency effecting the placement “shall follow [the tribe’s] order\\nso long as the placement is the least restrictive setting appropriate to the\\nparticular needs of the child.” Id. at § 1915(c).\\n The state in which an Indian child’s placement was made shall maintain\\nrecords of the placement, which shall be made available at any time upon\\nrequest by the Secretary or the child’s tribe. Id. at § 1915(e). A state court\\nentering a final decree in an adoptive placement “shall provide the Secretary\\nwith a copy of the decree or order” and information as necessary regarding “(1)\\nthe name and tribal affiliation of the child; (2) the names and addresses of the\\nbiological parents; (3) the names and addresses of the adoptive parents; and\\n(4) the identity of any agency having files or information relating to such\\nadoptive placement.” Id. at § 1951(a). ICWA’s severability clause provides\\nthat “[i]f any provision of this chapter or the applicability thereof is held\\ninvalid, the remaining provisions of this chapter shall not be affected thereby.”\\nId. at § 1963.\\n II. The Final Rule\\n ICWA provides that “the Secretary [of the Interior] shall promulgate\\nsuch rules and regulations as may be necessary to carry out [its] provisions.”\\n25 U.S.C. § 1952. In 1979, the Bureau of Indian Affairs (BIA) promulgated\\nguidelines (the “1979 Guidelines”) intended to assist state courts in\\nimplementing ICWA but without “binding legislative effect.” Guidelines for\\nState Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26,\\n1979). The 1979 Guidelines left the “primary responsibility” of interpreting\\ncertain language in ICWA “with the [state] courts that decide Indian child\\ncustody cases.” Id. However, in June 2016, the BIA promulgated the Final\\nRule to “clarify the minimum Federal standards governing implementation of\\n[ICWA]” and to ensure that it “is applied in all States consistent with the Act’s\\nexpress language, Congress’s intent in enacting the statute, and to promote\\n 5\\n\\n No. 18-11479\\nthe stability and security of Indian tribes and families.” 25 C.F.R. § 23.101;\\nIndian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,868 (June 14,\\n2016). The Final Rule explained that while the BIA “initially hoped that\\nbinding regulations would not be necessary to carry out [ICWA], a third of a\\ncentury of experience has confirmed the need for more uniformity in the\\ninterpretation and application of this important Federal law.” 81 Fed. Reg. at\\n38,782.\\n The Final Rule provides that states have the responsibility of\\ndetermining whether a child is an “Indian child” subject to ICWA’s\\nrequirements. 25 C.F.R. §§ 23.107–22; 81 Fed. Reg. at 38,778, 38,869–73. The\\nFinal Rule also sets forth notice and recordkeeping requirements for states, see\\n25 U.S.C. §§ 23.140–41; 81 Fed. Reg. at 38,778, 38,875–76, and requirements\\nfor states and individuals regarding voluntary proceedings and parental\\nwithdrawal of consent, see 25 C.F.R. §§ 23.124–28; 81 Fed. Reg. at 38,778,\\n38,873–74. The Final Rule also restates ICWA’s placement preferences and\\nclarifies when they apply and when states may depart from them. See 25\\nC.F.R. §§ 23.129–32; 81 Fed. Reg. at 38,778, 38,874–75.\\n III. The Instant Action\\n A. Parties\\n 1. Plaintiffs\\n Plaintiffs in this action are the states of Texas, Louisiana, and Indiana, 1\\n(collectively, the “State Plaintiffs”), and seven individual Plaintiffs—Chad and\\nJennifer Brackeen (the “Brackeens”), Nick and Heather Libretti (the\\n“Librettis”), Altagracia Socorro Hernandez (“Hernandez”), and Jason and\\n\\n\\n 1 There are three federally recognized tribes in Texas: the Yselta del Sur Pueblo, the\\nKickapoo Tribe, and the Alabama-Coushatta Tribe. There are four federally recognized\\ntribes in Louisiana: the Chitimacha Tribe, the Coushatta Tribe, the Tunica-Biloxi Tribe, and\\nthe Jena Band of Choctaw Indians. There is one federally recognized tribe in Indiana: the\\nPokagon Band of Potawatomi Indians.\\n 6\\n\\n No. 18-11479\\nDanielle Clifford (the “Cliffords”) (collectively, “Individual Plaintiffs”) (together\\nwith State Plaintiffs, “Plaintiffs”).\\n a. The Brackeens & A.L.M.\\n At the time their initial complaint was filed in the district court, the\\nBrackeens sought to adopt A.L.M., who falls within ICWA’s definition of an\\n“Indian Child.” His biological mother is an enrolled member of the Navajo\\nNation and his biological father is an enrolled member of the Cherokee Nation.\\nWhen A.L.M. was ten months old, Texas’s Child Protective Services (“CPS”)\\nremoved him from his paternal grandmother’s custody and placed him in foster\\ncare with the Brackeens. Both the Navajo Nation and the Cherokee Nation\\nwere notified pursuant to ICWA and the Final Rule. A.L.M. lived with the\\nBrackeens for more than sixteen months before they sought to adopt him with\\nthe support of his biological parents and paternal grandmother. In May 2017,\\na Texas court, in voluntary proceedings, terminated the parental rights of\\nA.L.M.’s biological parents, making him eligible for adoption under Texas law.\\nShortly thereafter, the Navajo Nation notified the state court that it had\\nlocated a potential alternative placement for A.L.M. with non-relatives in New\\nMexico, though this placement ultimately failed to materialize. In July 2017,\\nthe Brackeens filed an original petition for adoption, and the Cherokee Nation\\nand Navajo Nation were notified in compliance with ICWA. The Navajo Nation\\nand the Cherokee Nation reached an agreement whereby the Navajo Nation\\nwas designated as A.L.M.’s tribe for purposes of ICWA’s application in the state\\nproceedings. No one intervened in the Texas adoption proceeding or otherwise\\nformally sought to adopt A.L.M. The Brackeens entered into a settlement with\\nthe Texas state agency and A.L.M.’s guardian ad litem specifying that, because\\nno one else sought to adopt A.L.M., ICWA’s placement preferences did not\\napply. In January 2018, the Brackeens successfully petitioned to adopt A.L.M.\\nThe Brackeens initially alleged in their complaint that they would like to\\n 7\\n\\n No. 18-11479\\ncontinue to provide foster care for and possibly adopt additional children in\\nneed, but their experience adopting A.L.M. made them reluctant to provide\\nfoster care for other Indian children in the future. Since their complaint was\\nfiled, the Brackeens have sought to adopt A.L.M.’s sister, Y.R.J. in Texas state\\ncourt. Y.R.J., like her brother, is an Indian Child for purposes of ICWA. The\\nNavajo Nation contests the adoption. On February 2, 2019, the Texas court\\ngranted the Brackeens’ motion to declare ICWA inapplicable as a violation of\\nthe Texas constitution, but “conscientiously refrain[ed]” from ruling on the\\nBrackeens’ claims under the United States Constitution pending our\\nresolution of the instant appeal.\\n b. The Librettis & Baby O.\\n The Librettis live in Nevada and sought to adopt Baby O. when she was\\nborn in March 2016. Baby O.’s biological mother, Hernandez, wished to place\\nBaby O. for adoption at her birth, though Hernandez has continued to be a part\\nof Baby O.’s life and she and the Librettis visit each other regularly. Baby O.’s\\nbiological father, E.R.G., descends from members of the Ysleta del sur Pueblo\\nTribe (the “Pueblo Tribe”), located in El Paso, Texas, and was a registered\\nmember at the time Baby O. was born. The Pueblo Tribe intervened in the\\nNevada custody proceedings seeking to remove Baby O. from the Librettis.\\nOnce the Librettis joined the challenge to the constitutionality of the ICWA\\nand the Final Rule, the Pueblo Tribe indicated that it was willing settle. The\\nLibrettis agreed to a settlement with the tribe that would permit them to\\npetition for adoption of Baby O. The Pueblo Tribe agreed not to contest the\\nLibrettis’ adoption of Baby O., and on December 19, 2018, the Nevada state\\ncourt issued a decree of adoption, declaring that the Librettis were Baby O.’s\\nlawful parents. Like the Brackeens, the Librettis alleged that they intend to\\nprovide foster care for and possibly adopt additional children in need but are\\nreluctant to foster Indian children after this experience.\\n 8\\n\\n No. 18-11479\\n c. The Cliffords & Child P.\\n The Cliffords live in Minnesota and seek to adopt Child P., whose\\nmaternal grandmother is a registered member of the White Earth Band of\\nOjibwe Tribe (the “White Earth Band”). Child P. is a member of the White\\nEarth Band for purposes of ICWA’s application in the Minnesota state court\\nproceedings. Pursuant to ICWA section 1915’s placement preferences, county\\nofficials removed Child P. from the Cliffords’ custody and, in January 2018,\\nplaced her in the care of her maternal grandmother, whose foster license had\\nbeen revoked. Child P.’s guardian ad litem supports the Cliffords’ efforts to\\nadopt her and agrees that the adoption is in Child P.’s best interest. The\\nCliffords and Child P. remain separated, and the Cliffords face heightened\\nlegal barriers to adopting her. On January 17, 2019, the Minnesota court\\ndenied the Cliffords’ motion for adoptive placement.\\n 2. Defendants\\n Defendants are the United States of America; the United States\\nDepartment of the Interior and its Secretary Ryan Zinke, in his official\\ncapacity; the BIA and its Director Bryan Rice, in his official capacity; the BIA\\nPrincipal Assistant Secretary for Indian Affairs John Tahsuda III, in his\\nofficial capacity; and the Department of Health and Human Services (“HHS”)\\nand its Secretary Alex M. Azar II, in his official capacity (collectively the\\n“Federal Defendants”). Shortly after this case was filed in the district court,\\nthe Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo\\nBand of Mission Indians (collectively, the “Tribal Defendants”) moved to\\nintervene, and the district court granted the motion. On appeal, we granted\\n\\n\\n\\n\\n 9\\n\\n No. 18-11479\\nthe Navajo Nation’s motion to intervene as a defendant 2 (together with Federal\\nand Tribal Defendants, “Defendants”).\\n B. Procedural History\\n Plaintiffs filed the instant action against the Federal Defendants in\\nOctober 2017, alleging that the Final Rule and certain provisions of ICWA are\\nunconstitutional and seeking injunctive and declaratory relief. Plaintiffs\\nargued that ICWA and the Final Rule violated equal protection and\\nsubstantive due process under the Fifth Amendment and the\\nanticommandeering doctrine that arises from the Tenth Amendment.\\nPlaintiffs additionally sought a declaration that provisions of ICWA and the\\nFinal Rule violated the nondelegation doctrine and the Administrative\\nProcedure Act (APA). Defendants moved to dismiss, alleging that Plaintiffs\\nlacked standing. The district court denied the motion. All parties filed cross-\\nmotions for summary judgment. The district court granted Plaintiffs’ motion\\nfor summary judgment in part, concluding that ICWA and the Final Rule\\nviolated equal protection, the Tenth Amendment, and the nondelegation\\ndoctrine, and that the challenged portions of the Final Rule were invalid under\\nthe APA. 3 Defendants appealed. A panel of this court subsequently stayed the\\ndistrict court’s judgment pending further order of this court. In total, fourteen\\namicus briefs were filed in this court, including a brief in support of Plaintiffs\\nand affirmance filed by the state of Ohio; and a brief in support of Defendants\\nand reversal filed by the states of California, Alaska, Arizona, Colorado, Idaho,\\n\\n\\n\\n 2 The Navajo Nation had previously moved to intervene twice in the district court.\\nThe first motion was for the limited purpose of seeking dismissal pursuant to Rule 19, which\\nthe district court denied. The Navajo Nation filed a second motion to intervene for purposes\\nof appeal after the district court’s summary judgment order. The district court deferred\\ndecision on the motion pending further action by this court, at which time the Navajo Nation\\nfiled the motion directly with this court.\\n 3 The district court denied Plaintiffs’ substantive Due Process claim, from which\\n\\nPlaintiffs do not appeal.\\n 10\\n\\n No. 18-11479\\nIllinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi,\\nMontana, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Virginia,\\nWashington, and Wisconsin.\\n STANDARD OF REVIEW\\n We review a district court’s grant of summary judgment de novo. See\\nTexas v. United States, 497 F.3d 491, 495 (5th Cir. 2007). Summary judgment\\nis appropriate when the movant has demonstrated “that there is no genuine\\ndispute as to any material fact and the movant is entitled to judgment as a\\nmatter of law.” FED. R. CIV. P. 56(a). A genuine dispute of material fact exists\\n“if the evidence is such that a reasonable jury could return a verdict for the\\nnonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).\\n DISCUSSION\\n I. Article III Standing\\n Defendants first contend that Plaintiffs lack standing to challenge ICWA\\nand the Final Rule. The district court denied Defendants’ motion to dismiss\\non this basis, concluding that Individual Plaintiffs had standing to bring an\\nequal protection claim; State Plaintiffs had standing to challenge provisions of\\nICWA and the Final Rule on the grounds that they violated the Tenth\\nAmendment and the nondelegation doctrine; and all Plaintiffs had standing to\\nbring an APA claim challenging the validity of the Final Rule.\\n Article III limits the power of federal courts to “Cases” and\\n“Controversies.” See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing\\nU.S. CONST. art. III, § 2). “Standing to sue is a doctrine rooted in the traditional\\nunderstanding of a case or controversy.” Id. To meet the Article III standing\\nrequirement, plaintiffs must demonstrate “(1) an injury that is (2) fairly\\ntraceable to the defendant’s allegedly unlawful conduct and that is (3) likely to\\nbe redressed by the requested relief.” Lujan v. Defs. of Wildlife, 504 U.S. 555,\\n590 (1992) (internal quotations omitted). A plaintiff seeking equitable relief\\n 11\\n\\n No. 18-11479\\nmust demonstrate a likelihood of future injury in addition to past harm. See\\nCity of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). This injury must be\\n“concrete and particularized” and “actual or imminent, not conjectural or\\nhypothetical.” See Lujan, 504 U.S. at 560 (cleaned up). “[S]tanding is not\\ndispensed in gross,” and “a plaintiff must demonstrate standing for each claim\\nhe seeks to press and for each form of relief that is sought.” Town of Chester,\\nN.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. Fed.\\nElection Comm’n, 554 U.S. 724, 734 (2008)). “[T]he presence of one party with\\nstanding is sufficient to satisfy Article III’s case-or-controversy requirement.”\\nRumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2\\n(2006). “This court reviews questions of standing de novo.” Nat’l Rifle Ass’n of\\nAm., Inc. v. McCraw, 719 F.3d 338, 343 (5th Cir. 2013).\\n A. Standing to Bring Equal Protection Claim\\n Plaintiffs challenged ICWA sections 1915(a)–(b), 1913(d), and 1914 and\\nFinal Rule sections 23.129–32 on equal protection grounds, alleging that these\\nprovisions impose regulatory burdens on non-Indian families seeking to adopt\\nIndian children that are not similarly imposed on Indian families who seek to\\nadopt Indian children. The district court concluded that Individual Plaintiffs\\nsuffered and continued to suffer injuries when their efforts to adopt Indian\\nchildren were burdened by ICWA and the Final Rule; that their injuries were\\nfairly traceable to ICWA and the Final Rule because these authorities\\nmandated state compliance; and that these injuries were redressable because\\nif ICWA and the Final Rule were invalidated, then state courts would no longer\\nbe required to follow them. Defendants disagree, arguing that the Individual\\nPlaintiffs cannot demonstrate an injury in fact or redressability and thus lack\\nstanding to bring an equal protection claim. For the reasons below, we\\nconclude that the Brackeens have standing to assert an equal protection claim\\nas to ICWA sections 1915(a)–(b) and Final Rule sections 23.129–32, but as\\n 12\\n\\n No. 18-11479\\ndiscussed below, not as to ICWA sections 1913–14. Accordingly, because one\\nPlaintiff has standing, the “case-or-controversy requirement” is satisfied as to\\nthis claim, and we do not analyze whether any other Individual Plaintiff has\\nstanding to raise it. 4 See Rumsfeld, 547 U.S. at 53 n.2.\\n The district court concluded that ICWA section 1913(d), which allows a\\nparent to petition the court to vacate a final decree of adoption on the grounds\\nthat consent was obtained through fraud or duress, left the Brackeens’\\nadoption of A.L.M. vulnerable to collateral attack for two years. Defendants\\nargue that section 1914, 5 and not section 1913(d), applies to the Brackeens’\\nstate court proceedings and that, in any event, an injury premised on potential\\nfuture collateral attack under either provision is too speculative. We need not\\ndecide which provision applies here, as neither the Brackeens nor any of the\\nIndividual Plaintiffs havesuffered an injury under either provision. Plaintiffs\\ndo not assert that A.L.M.’s biological parents, the Navajo Nation, or any other\\nparty seeks to invalidate the Brackeens’ adoption of A.L.M. under either\\nprovision. Plaintiffs’ proffered injury under section 1913 or section 1914 is\\ntherefore too speculative to support standing. See Lujan, 504 U.S. at 560; see\\nalso Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (“[T]hreatened\\ninjury must be certainly impending to constitute injury in fact, and []\\n[a]llegations of possible future injury are not sufficient.” (cleaned up)). To the\\nextent Plaintiffs argue that an injury arises from their attempts to avoid\\n\\n\\n 4 State Plaintiffs argue that they have standing to bring an equal protection challenge\\nin parens patriae on behalf of their citizens. We disagree. See South Carolina v. Katzenbach,\\n383 U.S. 301, 324 (1966) (“[A] State [does not] have standing as the parent of its citizens to\\ninvoke [the Fifth Amendment Due Process Clause] against the Federal Government, the\\nultimate parens patriae of every American citizen.”).\\n 5 “Any Indian child who is the subject of any action for foster care placement or\\n\\ntermination of parental rights under State law, any parent or Indian custodian from whose\\ncustody such child was removed, and the Indian child’s tribe may petition any court of\\ncompetent jurisdiction to invalidate such action upon a showing that such action violated any\\nprovision of sections 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914.\\n 13\\n\\n No. 18-11479\\ncollateral attack under section 1914 by complying with sections 1911–13,\\n“costs incurred to avoid injury are insufficient to create standing” where the\\ninjury is not certainly impending. See Clapper, 568 U.S. at 417.\\n The district court also concluded that ICWA section 1915, and\\nsections 23.129–32 of the Final Rule, which clarify section 1915, gave rise to\\nan injury from an increased regulatory burden. We agree. Prior to the\\nfinalization of the Brackeens’ adoption of A.L.M., the Navajo Nation notified\\nthe state court that it had located a potential alternative placement for A.L.M.\\nin New Mexico. Though that alternative placement ultimately failed to\\nmaterialize, the regulatory burdens ICWA section 1915 and Final Rule\\nsections 23.129–32 imposed on the Brackeens in A.L.M.’s adoption\\nproceedings, which were ongoing at the time the complaint was filed, are\\nsufficient to demonstrate injury. See Contender Farms, L.L.P. v. U.S. Dep’t of\\nAgric., 779 F.3d 258, 266 (5th Cir. 2015) (“An increased regulatory burden\\ntypically satisfies the injury in fact requirement.”); see also Rockwell Int’l Corp.\\nv. United States, 549 U.S. 457, 473–74 (2007) (standing is assessed at the time\\nthe complaint was filed); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.\\n(TOC), Inc., 528 U.S. 167, 184 (2000) (discussing Lyons, 461 U.S. at 108, and\\nfinding the injury requirement satisfied where the alleged harmful conduct\\nwas occurring when the complaint was filed).\\n Defendants contend that the Brackeens’ challenge to section 1915 and\\nsections 23.129–32 is moot. They argue that, because the Brackeens’ adoption\\nof A.L.M. was finalized in January 2018 and the Navajo Nation will not seek\\nto challenge the adoption, section 1915’s placement preferences no longer\\napply in A.L.M.’s adoption proceedings. Plaintiffs argue that section 1915’s\\nplacement preferences impose on them the ongoing injury of increased\\nregulatory burdens in their proceedings to adopt A.L.M.’s sister, Y.R.J., which\\nthe Navajo Nation currently opposes in Texas state court.\\n 14\\n\\n No. 18-11479\\n “A corollary to this case-or-controversy requirement is that an actual\\ncontroversy must be extant at all stages of review, not merely at the time the\\ncomplaint is filed.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71\\n(2013). “[A] case is moot when the issues presented are no longer live or the\\nparties lack a legally cognizable interest in the outcome.” Powell v.\\nMcCormack, 395 U.S. 486, 496 (1969)(internal quotation marks omitted).\\nHowever, mootness will not render a case non-justiciable where the dispute is\\none that is “capable of repetition, yet evading review.” See Murphy v. Hunt,\\n455 U.S. 478, 482 (1982). “That exception applies where (1) the challenged\\naction is in its duration too short to be fully litigated prior to cessation or\\nexpiration, and (2) there is a reasonable expectation that the same complaining\\nparty will be subject to the same action again.” Davis v. Fed. Election Comm’n,\\n554 U.S. 724, 735 (2008) (internal citations and quotations omitted). Here, the\\nBrackeens were unable to fully litigate a challenge to section 1915 before\\nsuccessfully adopting A.L.M. Additionally, they have demonstrated a\\nreasonable expectation that they will be subject to section 1915’s regulatory\\nburdens in their adoption proceedings involving A.L.M.’s sister, Y.R.J. Thus,\\nthe Brackeens’ challenge to section 1915 is justiciable on the grounds that it is\\ncapable of repetition, yet evading review. See Hunt, 455 U.S. at 482.\\n Having thus found an injury with respect to ICWA section 1915 and\\nFinal Rule sections 23.129–32, we consider whether causation and\\nredressability are met here. See Lujan, 504 U.S. at 590. The Brackeens’\\nalleged injury is fairly traceable to the actions of at least some of the Federal\\nDefendants, who bear some responsibility for the regulatory burdens imposed\\nby ICWA and the Final Rule. See Contender Farms, L.L.P., 779 F.3d at 266\\n(noting that causation “flow[ed] naturally from” a regulatory injury).\\nAdditionally, the Brackeens have demonstrated a likelihood that their injury\\nwill be redressed by a favorable ruling of this court. In the Brackeens’ ongoing\\n 15\\n\\n No. 18-11479\\nproceedings to adopt Y.R.J., the Texas court has indicated that it will refrain\\nfrom ruling on the Brackeens’ federal constitutional claims pending a ruling\\nfrom this court. Accordingly, Plaintiffs have standing to bring an equal\\nprotection claim challenging ICWA section 1915(a)–(b) and Final Rule sections\\n23.129–32. See Lujan, 504 U.S. at 590; Rumsfeld, 547 U.S. at 53 n.2.\\n B. Standing to Bring Administrative Procedure Act Claim\\n Plaintiffs first argue that ICWA does not authorize the Secretary of the\\nInterior to promulgate binding rules and regulations, and the Final Rule is\\ntherefore invalid under the APA. The district court ruled that State Plaintiffs\\nhad standing to bring this claim, determining that the Final Rule injured State\\nPlaintiffs by intruding upon their interests as quasi-sovereigns to control the\\ndomestic affairs within their states. 6 A state may be entitled to “special\\nsolicitude” in our standing analysis if the state is vested by statute with a\\nprocedural right to file suit to protect an interest and the state has suffered an\\ninjury to its “quasi-sovereign interests.” Massachusetts v. EPA, 549 U.S. 497,\\n518–20 (2007) (holding that the Clean Air Act provided Massachusetts a\\nprocedural right to challenge the EPA’s rulemaking, and Massachusetts\\nsuffered an injury in its capacity as a quasi-sovereign landowner due to rising\\nsea levels associated with climate change). Applying Massachusetts, this court\\nin Texas v. United States held that Texas had standing to challenge the\\nDepartment of Homeland Security’s implementation and expansion of the\\nDeferred Action for Childhood Arrivals program (DACA) under the APA. See\\n809 F.3d 134, 152 (5th Cir. 2015). This court reasoned that Texas was entitled\\nto special solicitude on the grounds that the APA created a procedural right to\\n\\n\\n\\n 6The district court also found an injury based on the Social Security Act’s conditioning\\nof funding on states’ compliance with ICWA. However, because we find that Plaintiffs have\\nstanding on other grounds, we decline to decide whether they have demonstrated standing\\nbased on an alleged injury caused by the SSA.\\n 16\\n\\n No. 18-11479\\nchallenge the DHS’s actions, and DHS’s actions affected states’ sovereign\\ninterest in creating and enforcing a legal code. See id. at 153 (internal\\nquotations omitted).\\n Likewise, here, the APA provides State Plaintiffs a procedural right to\\nchallenge the Final Rule. See id.; 5 U.S.C. § 702. Moreover, State Plaintiffs\\nallege that the Final Rule affects their sovereign interest in controlling child\\ncustody proceedings in state courts. See Texas, 809 F.3d at 153 (recognizing\\nthat, pursuant to a sovereign interest in creating and enforcing a legal code,\\nstates may have standing based on, inter alia, federal preemption of state law).\\nThus, State Plaintiffs are entitled to special solicitude in our standing inquiry.\\nWith this in mind, we find that the elements of standing are satisfied. If, as\\nState Plaintiffs alleged, the Secretary promulgated a rule binding on states\\nwithout the authority to do so, then State Plaintiffs have suffered a concrete\\ninjury to their sovereign interest in controlling child custody proceedings that\\nwas caused by the Final Rule. Additionally, though state courts and agencies\\nare not bound by this court’s precedent, a favorable ruling from this court\\nwould remedy the alleged injury to states by making their compliance with\\nICWA and the Final Rule optional rather than compulsory. See Massachusetts,\\n549 U.S. at 521 (finding redressability where the requested relief would prompt\\nthe agency to “reduce th[e] risk” of harm to the state).\\n C. Standing to Bring Tenth Amendment Claim\\n For similar reasons, the district court found, and we agree, that State\\nPlaintiffs have standing to challenge provisions of ICWA and the Final Rule\\nunder the Tenth Amendment. The imposition of regulatory burdens on State\\nPlaintiffs is sufficient to demonstrate an injury to their sovereign interest in\\ncreating and enforcing a legal code to govern child custody proceedings in state\\ncourts. See Texas, 809 F.3d at 153. Additionally, the causation and\\nredressability requirements are satisfied here, as a favorable ruling from this\\n 17\\n\\n No. 18-11479\\ncourt would likely redress State Plaintiffs’ injury by lifting the mandatory\\nburdens ICWA and the Final Rule impose on states. See Lujan, 504 U.S. at\\n590.\\n D. Standing to Bring Nondelegation Claim\\n Finally, Plaintiffs contend that ICWA section 1915(c), which allows a\\ntribe to establish a different order of section 1915(a)’s placement preferences,\\nis an impermissible delegation of legislative power that binds State Plaintiffs.\\nDefendants argue that State Plaintiffs cannot demonstrate an injury, given the\\nlack of evidence that a tribe’s reordering of section 1915(a)’s placement\\npreferences has affected any children in Texas, Indiana, or Louisiana or that\\nsuch impact is “certainly impending.” State Plaintiffs respond that tribes can\\nchange ICWA’s placement preferences at any time and that at least one tribe,\\nthe Alabama-Coushatta Tribe of Texas, has already done so. We conclude that\\nState Plaintiffs have demonstrated injury and causation with respect to this\\nclaim, as State Plaintiffs’ injury from the Alabama-Coushatta Tribe’s decision\\nto depart from ICWA section 1915’s placement preferences is concrete and\\nparticularized and not speculative. See Lujan, 504 U.S. at 560. Moreover, a\\nfavorable ruling from this court would redress State Plaintiffs’ injury by\\nmaking a state’s compliance with a tribe’s alternative order of preferences\\nunder ICWA section 1915(c) optional rather than mandatory. See id.\\n Accordingly, having found that State Plaintiffs have standing on the\\naforementioned claims, we proceed to the merits of these claims. We note at\\nthe outset that ICWA is entitled to a “presumption of constitutionality,” so long\\nas Congress enacted the statute “based on one or more of its powers\\nenumerated in the Constitution.” See United States v. Morrison, 529 U.S. 598,\\n607 (2000). “Due respect for the decisions of a coordinate branch of\\nGovernment demands that we invalidate a congressional enactment only upon\\n\\n\\n 18\\n\\n No. 18-11479\\na plain showing that Congress has exceeded its constitutional bounds.” Id.\\n(citing, among others, United States v. Harris, 106 U.S. 629, 635 (1883)).\\n II. Equal Protection\\n The Equal Protection Clause of the Fourteenth Amendment prohibits\\nstates from “deny[ing] to any person within its jurisdiction the equal protection\\nof the laws.” U.S. CONST., amend. 14, § 1. This clause is implicitly incorporated\\ninto the Fifth Amendment’s guarantee of due process. See Bolling v. Sharpe,\\n347 U.S. 497, 499 (1954). We apply the same analysis with respect to equal\\nprotection claims under the Fifth and Fourteenth Amendments. See Richard\\nv. Hinson, 70 F.3d 415, 417 (5th Cir. 1995). In evaluating an equal protection\\nclaim, strict scrutiny applies to laws that rely on classifications of persons\\nbased on race. See id. But where the classification is political, rational basis\\nreview applies. See Morton v. Mancari, 417 U.S. 535, 555 (1974). The district\\ncourt granted summary judgment on behalf of Plaintiffs, concluding that\\nsection 1903(4)—setting forth ICWA’s definition of “Indian Child” for purposes\\nof determining when ICWA applies in state child custody proceedings—was a\\nrace-based classification that could not withstand strict scrutiny. 7 On appeal,\\nthe parties disagree as to whether section 1903(4)’s definition of “Indian Child”\\nis a political or race-based classification and which level of scrutiny applies.\\n“We review the constitutionality of federal statutes de novo.” Nat’l Rifle Ass’n\\n\\n\\n\\n\\n 7 As described above, we conclude that Plaintiffs have standing to challenge ICWA\\nsection 1915(a)–(b) and Final Rule sections 23.129–32 on equal protection grounds. The\\ndistrict court’s analysis of whether the ICWA classification was political or race-based focused\\non ICWA section 1903(4), presumably because section 1903(4) provides a threshold definition\\nof “Indian child” that must be met for any provision of ICWA to apply in child custody\\nproceedings in state court. Because we are satisfied that our analysis would produce the\\nsame result with respect to section 1903(4) and the specific provisions Plaintiffs have\\nstanding to challenge, we similarly confine our discussion of whether ICWA presents a\\npolitical or race-based classification to section 1903(4).\\n 19\\n\\n No. 18-11479\\nof Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d\\n185, 192 (5th Cir. 2012).\\n A. Level of Scrutiny\\n We begin by determining whether ICWA’s definition of “Indian child” is\\na race-based or political classification and, consequently, which level of\\nscrutiny applies. The district court concluded that ICWA’s “Indian Child”\\ndefinition was a race-based classification. We conclude that this was error.\\nCongress has exercised plenary power “over the tribal relations of the Indians\\n. . . from the beginning, and the power has always been deemed a political one,\\nnot subject to be controlled by the judicial department of the government.”\\nLone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903). The Supreme Court’s\\ndecisions “leave no doubt that federal legislation with respect to Indian tribes\\n. . . is not based upon impermissible racial classifications.” United States v.\\nAntelope, 430 U.S. 641, 645 (1977). “Literally every piece of legislation dealing\\nwith Indian tribes and reservations . . . single[s] out for special treatment a\\nconstituency of tribal Indians living on or near reservations.” Mancari, 417\\nU.S. at 552. “If these laws, derived from historical relationships and explicitly\\ndesigned to help only Indians, were deemed invidious racial discrimination, an\\nentire Title of the United States Code (25 U.S.C.) would be effectively erased\\nand the solemn commitment of the Government toward the Indians would be\\njeopardized.” Id.\\n In Morton v. Mancari, the Supreme Court rejected a challenge to a law\\naffording to qualified Indian applicants—those having one-fourth or more\\ndegree Indian blood with membership in a federally recognized tribe 8—a hiring\\n\\n\\n 8 The United States currently recognizes 573 Tribal entities. See 84 Fed. Reg. 1,200\\n(Feb. 1, 2019). Federal recognition “is a formal political act confirming the tribe’s existence\\nas a distinct political society, and institutionalizing the government-to-government\\nrelationship between the tribe and the federal government.” See California Valley Miwok\\nTribe v. United States, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (quoting COHEN’S HANDBOOK OF\\n 20\\n\\n No. 18-11479\\npreference over non-Indians within the BIA. Id. at 555. The Court recognized\\nthat central to the resolution of the issue was “the unique legal status of Indian\\ntribes under federal law and upon the plenary power of Congress . . . to legislate\\non behalf of federally recognized Indian tribes.” Id. at 551. It reasoned that\\nthe BIA’s hiring preference was “granted to Indians not as a discrete racial\\ngroup, but, rather, as members of quasi-sovereign tribal entities whose lives\\nand activities are governed by the BIA in a unique fashion.” Id. at 554. The\\npreference was thus a non-racial “employment criterion reasonably designed\\nto further the cause of Indian self-government and to make the BIA more\\nresponsive to the needs of its constituent groups. It [was] directed to\\nparticipation by the governed in the governing agency.” Id. at 553–54. The\\ndisadvantages to non-Indians resulting from the hiring preferences were an\\nintentional and “desirable feature of the entire program for self-government.” 9\\nId. at 544.\\n\\n\\n\\n\\nFEDERAL INDIAN LAW § 3.02[3], at 138 (2005 ed.) (internal quotation marks omitted)). It “[i]s\\na prerequisite to the protection, services, and benefits of the Federal Government available\\nto those that qualify.” 25 C.F.R. § 83.2.\\n 9 Plaintiffs argue that, unlike the law in Mancari, ICWA is not a law promoting tribal\\n\\nself-governance. However, prior to enacting ICWA, Congress considered testimony from the\\nTribal Chief of the Mississippi Band of Choctaw Indians about the devastating impacts of\\nremoving Indian children from tribes and placing them for adoption and foster care in non-\\nIndian homes:\\n Culturally, the chances of Indian survival are significantly reduced if our\\n children, the only real means for the transmission of the tribal heritage, are to\\n be raised in non-Indian homes and denied exposure to the ways of their People.\\n Furthermore, these practices seriously undercut the tribes’ ability to continue\\n as self-governing communities. Probably in no area is it more important that\\n tribal sovereignty be respected than in an area as socially and culturally\\n determinative as family relationships.\\nHolyfield, 490 U.S. at 34. This testimony undoubtedly informed Congress’s finding that\\nchildren are the most vital resource “to the continued existence and integrity of Indian\\ntribes.” 25 U.S.C. § 1901(3). Thus, interpreting ICWA as related to tribal self-government\\nand the survival of tribes makes the most sense in light of Congress’s explicit intent in\\nenacting the statute. See id.\\n 21\\n\\n No. 18-11479\\n The district court construed Mancari narrowly and distinguished it for\\ntwo primary reasons: First, the district court found that the law in Mancari\\nprovided special treatment “only to Indians living on or near reservations.”\\nSecond, the district court concluded that ICWA’s membership eligibility\\nstandard for an Indian child does not rely on actual tribal membership as did\\nthe statute in Mancari. The district court reasoned that, whereas the law in\\nMancari “applied ‘only to members of ‘federally recognized’ tribes which\\noperated to exclude many individuals who are racially to be classified as\\nIndians,’” ICWA’s definition of “Indian child” extended protection to children\\nwho were eligible for membership in a federally recognized tribe and had a\\nbiological parent who was a member of a tribe. The district court, citing the\\ntribal membership laws of several tribes, including the Navajo Nation,\\nconcluded that “[t]his means one is an Indian child if the child is related to a\\ntribal ancestor by blood.”\\n We disagree with the district court’s reasoning and conclude that\\nMancari controls here. As to the district court’s first distinction, Mancari’s\\nholding does not rise or fall with the geographical location of the Indians\\nreceiving “special treatment.” See Mancari, 417 U.S. at 552. The Supreme\\nCourt has long recognized Congress’s broad power to regulate Indians and\\nIndian tribes on and off the reservation. See e.g., United States v. McGowan,\\n302 U.S. 535, 539 (1938) (“Congress possesses the broad power of legislating\\nfor the protection of the Indians wherever they may be within the territory of\\nthe United States.”); Perrin v. United States, 232 U.S. 478, 482 (1914)\\n(acknowledging Congress’s power to regulate Indians “whether upon or off a\\nreservation and whether within or without the limits of a state”).\\n Second, the district court concluded that, unlike the statute in Mancari,\\nICWA’s definition of Indian child extends to children who are merely eligible\\nfor tribal membership because of their ancestry. However, ICWA’s definition\\n 22\\n\\n No. 18-11479\\nof “Indian child” is not based solely on tribal ancestry or race. ICWA defines\\nan “Indian child” as “any unmarried person who is under age eighteen and is\\neither (a) a member of an Indian tribe or (b) is eligible for membership in an\\nIndian tribe and is the biological child of a member of an Indian tribe.” 25\\nU.S.C. § 1903(4). As Defendants explain, under some tribal membership laws,\\neligibility extends to children without Indian blood, such as the descendants of\\nformer slaves of tribes who became members after they were freed, or the\\ndescendants of adopted white persons. Accordingly, a child may fall under\\nICWA’s membership eligibility standard because his or her biological parent\\nbecame a member of a tribe, despite not being racially Indian. Additionally,\\nmany racially Indian children, such as those belonging to non-federally\\nrecognized tribes, do not fall within ICWA’s definition of “Indian child.”\\nConditioning a child’s eligibility for membership, in part, on whether a\\nbiological parent is a member of the tribe is therefore not a proxy for race, as\\nthe district court concluded, but rather for not-yet-formalized tribal affiliation,\\nparticularly where the child is too young to formally apply for membership in\\na tribe. 10\\n Our conclusion that ICWA’s definition of Indian child is a political\\nclassification is consistent with both the Supreme Court’s holding in Mancari\\nand this court’s holding in Peyote Way Church of God, Inc. v. Thornburgh, 922\\nF.2d 1210, 1212 (5th Cir. 1991). In Mancari, the hiring preference extended to\\nindividuals who were one-fourth or more degree Indian blood and a member of\\n\\n\\n\\n 10 The Navajo Nation’s membership code is instructive on these points, despite the\\ndistrict court’s reliance on it to the contrary. The Navajo Nation explains that, under its\\nlaws, “blood alone is never determinative of membership.” The Navajo Nation will only grant\\nan application for membership “if the individual has some tangible connection to the Tribe,”\\nsuch as the ability to speak the Navajo language or time spent living among the Navajo\\npeople. “Having a biological parent who is an enrolled member is per se evidence of such a\\nconnection.” Additionally, individuals will not be granted membership in the Navajo Nation,\\nregardless of their race or ancestry, if they are members of another tribe.\\n 23\\n\\n No. 18-11479\\na federally recognized tribe. See 417 U.S. at 554. Similarly, in Peyote Way,\\nthis court considered whether equal protection was violated by federal and\\nstate laws prohibiting the possession of peyote by all persons except members\\nof the Native American Church of North America (NAC), who used peyote for\\nreligious purposes. See 922 F.2d at 1212. Applying Mancari’s reasoning, this\\ncourt upheld the preference on the basis that membership in NAC “is limited\\nto Native American members of federally recognized tribes who have at least\\n25% Native American ancestry, and therefore represents a political\\nclassification.” Id. at 1216. ICWA’s “Indian child” eligibility provision\\nsimilarly turns, at least in part, on whether the child is eligible for membership\\nin a federally recognized tribe. See California Valley Miwok Tribe v. United\\nStates, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (federal recognition “is a formal\\npolitical act” that “institutionaliz[es] the government-to-government\\nrelationship between the tribe and the federal government.”); 25 U.S.C.\\n§ 1903(4).\\n The district court concluded, and Plaintiffs now argue, that ICWA’s\\ndefinition “mirrors the impermissible racial classification in Rice [v. Cayetano,\\n528 U.S. 495 (2000)], and is legally and factually distinguishable from the\\npolitical classification in Mancari.” The Supreme Court in Rice concluded that\\na provision of the Hawaiian Constitution that permitted only “Hawaiian”\\npeople to vote in the statewide election for the trustees of the Office of\\nHawaiian Affairs (OHA) violated the Fifteenth Amendment. 528 U.S. at 515.\\n“Hawaiian” was defined by statute as “any descendant of the aboriginal peoples\\ninhabiting the Hawaiian Islands which exercised sovereignty and subsisted in\\nthe Hawaiian Islands in 1778, and which peoples thereafter have continued to\\nreside in Hawaii.” Id. The Court noted the state legislature’s express purpose\\nin using ancestry as a proxy for race and held that “[d]istinctions between\\ncitizens solely because of their ancestry are by their very nature odious to a\\n 24\\n\\n No. 18-11479\\nfree people whose institutions are founded upon the doctrine of equality.” Id.\\nat 514–17 (citing Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).\\nDistinguishing Mancari, the Court noted that its precedent did not afford\\nHawaiians a protected status like that of Indian tribes; that the OHA elections\\nwere an affair of the state and not of a “separate quasi sovereign” like a tribe;\\nand that extending “Mancari to this context would [] permit a State, by racial\\nclassification, to fence out whole classes of its citizens from decisionmaking in\\ncritical state affairs.” Id. at 522.\\n Rice is distinguishable from the present case for several reasons. Unlike\\nRice, which involved voter eligibility in a state-wide election for a state agency,\\nthere is no similar concern here that applying Mancari would permit “by racial\\nclassification, [the fencing] out [of] whole classes of [a state’s] citizens from\\ndecisionmaking in critical state affairs.” See 528 U.S. at 518–22. Additionally,\\nas discussed above, ICWA’s definition of “Indian child,” unlike the challenged\\nlaw in Rice, does not single out children “solely because of their ancestry or\\nethnic characteristics.” See id. at 515 (emphasis added). Further, unlike the\\nlaw in Rice, ICWA is a federal law enacted by Congress for the protection of\\nIndian children and tribes. See Rice, 528 U.S. at 518 (noting that to sustain\\nHawaii’s restriction under Mancari, it would have to “accept some beginning\\npremises not yet established in [its] case law,” such as that Congress “has\\ndetermined that native Hawaiians have a status like that of Indians in\\norganized tribes”); see also Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th\\nCir. 2004) (rejecting an equal protection challenge brought by Native\\nHawaiians, who were excluded from the U.S. Department of the Interior’s\\nregulatory tribal acknowledgement process, and concluding that the\\nrecognition of Indian tribes was political). Additionally, whereas the OHA\\nelections in Rice were squarely state affairs, state court adoption proceedings\\ninvolving Indian children are simultaneously affairs of states, tribes, and\\n 25\\n\\n No. 18-11479\\nCongress. See 25 U.S.C. § 1901(3) (“[T]here is no resource that is more vital to\\nthe continued existence and integrity of Indian tribes than their children.”).\\nBecause we find Rice inapplicable, and Mancari controlling here, we conclude,\\ncontrary to the district court’s determination, that ICWA’s definition of “Indian\\nchild” is a political classification subject to rational basis review. See Mancari,\\n417 U.S. at 555.\\n B. Rational Basis Review\\n Having so determined that rational basis review applies, we ask whether\\n“the special treatment can be tied rationally to the fulfillment of Congress’s\\nunique obligation toward the Indians.” Mancari, 417 U.S. at 555. Given\\nCongress’s explicit findings and stated objectives in enacting ICWA, we\\nconclude that the special treatment ICWA affords Indian children is rationally\\ntied to Congress’s fulfillment of its unique obligation toward Indian nations\\nand its stated purpose of “protect[ing] the best interests of Indian children and\\n[] promot[ing] the stability and security of Indian tribes.” See 25 U.S.C.\\n§§ 1901–02; see also Mancari, 417 U.S. at 555. ICWA section 1903(4)’s\\ndefinition of an “Indian child” is a political classification that does not violate\\nequal protection.\\n III. Tenth Amendment\\n The district court concluded that ICWA sections 1901–23 11 and 1951–\\n52 12 violated the anticommandeering doctrine by requiring state courts and\\nexecutive agencies to apply federal standards to state-created claims. The\\n\\n\\n\\n\\n 11 ICWA sections 1901–03 set forth Congress’s findings, declaration of policy, and\\ndefinitions. Sections 1911–23 govern child custody proceedings, including tribal court\\njurisdiction, notice requirements in involuntary and voluntary state proceedings,\\ntermination of parental rights, invalidation of state proceedings, placement preferences, and\\nagreements between states and tribes.\\n 12 Section 1951 sets forth information-sharing requirements for state courts. Section\\n\\n1952 authorizes the Secretary of the Interior to promulgate necessary rules and regulations.\\n 26\\n\\n No. 18-11479\\ndistrict court also considered whether ICWA preempts conflicting state law\\nunder the Supremacy Clause and concluded that preemption did not apply\\nbecause the law “directly regulated states.” Defendants argue that the\\nanticommandeering doctrine does not prevent Congress from requiring state\\ncourts to enforce substantive and procedural standards and precepts, and that\\nICWA sets minimum procedural standards that preempt conflicting state law.\\nWe examine the constitutionality of the challenged provisions of ICWA below\\nand conclude that they preempt conflicting state law and do not violate the\\nanticommandeering doctrine. .\\n A. Anticommandeering Doctrine\\n The Tenth Amendment provides that “[t]he powers not delegated to the\\nUnited States by the Constitution, nor prohibited by it to the States, are\\nreserved to the States respectively, or to the people.” U.S. CONST. amend. X.\\nCongress’s legislative powers are limited to those enumerated under the\\nConstitution. Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1476\\n(2018). “[C]onspicuously absent from the list of powers given to Congress is\\nthe power to issue direct orders to the governments of the States.” Id. The\\nanticommandeering doctrine, an expression of this limitation on Congress,\\nprohibits federal laws commanding the executive or legislative branch of a\\nstate government to act or refrain from acting. 13 Id. at 1478 (holding that a\\nfederal law prohibiting state authorization of sports gambling violated the\\nanticommandeering rule by “unequivocally dictat[ing] what a state legislature\\n\\n\\n\\n 13 Though Congress is prohibited from commandeering states, it can “encourage a\\nState to regulate in a particular way, or . . . hold out incentives to the States as a method of\\ninfluencing a State’s policy choices.” New York, 505 U.S. at 166. For example, Congress may\\nalso condition the receipt of federal funds under its spending power. See id. at 167.\\nDefendants also contend that ICWA is authorized under Congress’s Spending Clause powers\\nbecause Congress conditioned federal funding in Title IV-B and E of the Social Security Act\\non states’ compliance with ICWA. However, because we conclude that ICWA is\\nconstitutionally permissible on other bases, we need not reach this argument.\\n 27\\n\\n No. 18-11479\\nmay and may not do”); Printz v. United States, 521 U.S. 898, 935 (1997)\\n(holding that a federal law requiring state chief law enforcement officers to\\nconduct background checks on handgun purchasers “conscript[ed] the State’s\\nofficers directly” and was invalid); New York v. United States, 505 U.S. 144,\\n175–76 (1992) (holding that a federal law impermissibly commandeered states\\nto implement federal legislation when it gave states “[a] choice between two\\nunconstitutionally coercive” alternatives: to either dispose of radioactive waste\\nwithin their boundaries according to Congress’s instructions or “take title” to\\nand assume liabilities for the waste).\\n 1. State Courts\\n Defendants argue that because the Supremacy Clause requires the\\nenforcement of ICWA and the Final Rule by state courts, these provisions do\\nnot run afoul of the anticommandeering doctrine. We agree. The Supremacy\\nClause provides that “the Laws of the United States . . . shall be the supreme\\nLaw of the Land; and the Judges in every State shall be bound thereby, any\\nThing in the Constitution or Laws of any State to the Contrary\\nnotwithstanding.” U.S. CONST. art. VI, cl. 2. In setting forth the\\nanticommandeering doctrine, the Supreme Court drew a distinction between a\\nstate’s courts and its political branches. The Court acknowledged that\\n“[f]ederal statutes enforceable in state court do, in a sense, direct state judges\\nto enforce them, but this sort of federal “direction” of state judges is mandated\\nby the text of the Supremacy Clause.” New York, 505 U.S. at 178–79 (internal\\nquotation marks omitted). Early laws passed by the first Congresses requiring\\nstate court action “establish, at most, that the Constitution was originally\\nunderstood to permit imposition of an obligation on state judges to enforce\\nfederal prescriptions, insofar as those prescriptions related to matters\\nappropriate for the judicial power.” Printz, 521 U.S. at 907. State courts were\\nviewed as distinctive because, “unlike [state] legislatures and executives, they\\n 28\\n\\n No. 18-11479\\napplied the law of other sovereigns all the time,” including as mandated by the\\nSupremacy Clause. Id. Thus, to the extent provisions of ICWA and the Final\\nRule require state courts to enforce federal law, the anticommandeering\\ndoctrine does not apply. See id. at 928–29 (citing Testa v. Katt, 330 U.S. 386\\n(1947), “for the proposition that state courts cannot refuse to apply federal lawa\\nconclusion mandated by the terms of the Supremacy Clause”).\\n 2. State Agencies\\n Plaintiffs next challenge several provisions of ICWA that they contend\\ncommandeer state executive agencies, including sections 1912(a) (imposing\\nnotice requirements on “the party seeking the foster care placement of, or\\ntermination of parental rights to, an Indian child”), 1912(d) (requiring that\\n“any party seeking to effect a foster care placement of, or termination of\\nparental rights to, an Indian child under State law shall satisfy the court that\\nactive efforts have been made to provide remedial services and rehabilitative\\nprograms designed to prevent the breakup of the Indian family and that these\\nefforts have proved unsuccessful.”), 1915(c) (requiring “the agency or court\\neffecting [a] placement” adhere to the order of placement preferences\\nestablished by the tribe), and 1915(e) (requiring that “the State” in which the\\nplacement was made keep a record of each placement, evidencing the efforts to\\ncomply with the order of preference, to be made available upon request of the\\nSecretary or the child’s tribe). See 25 U.S.C. §§ 1912, 1915. Plaintiffs argue\\nthat ICWA’s requirements on state agencies go further than the federal\\nregulatory scheme invalidated in Printz and impermissibly impose costs that\\nstates must bear. Defendants contend that the challenged provisions of ICWA\\napply to private parties and state agencies alike and therefore do not violate\\nthe anticommandeering doctrine.\\n In Printz, the Supreme Court affirmed its prior holding that “[t]he\\nFederal Government may not compel the States to enact or administer a\\n 29\\n\\n No. 18-11479\\nfederal regulatory program,” and “Congress cannot circumvent that\\nprohibition by conscripting the State’s officers directly.” 521 U.S. at 925, 935\\n(quoting New York, 505 U.S. at 188). The Printz Court, rejecting as irrelevant\\nthe Government’s argument that the federal law imposed a minimal burden\\non state executive officers, explained that it was not “evaluating whether the\\nincidental application to the States of a federal law of general applicability\\nexcessively interfered with the functioning of state governments,” but rather a\\nlaw whose “whole object . . . [was] to direct the functioning of the state\\nexecutive.” Id. at 931–32. Expanding upon this distinction, the Court in\\nMurphy discussed Reno v. Condon, 528 U.S. 141 (2000), and South Carolina v.\\nBaker, 485 U.S. 505 (1988), and held that “[t]he anticommandeering doctrine\\ndoes not apply when Congress evenhandedly regulates an activity in which\\nboth States and private actors engage.” 138 S. Ct. at 1478.\\n In Condon, the Court upheld a federal regulatory scheme that restricted\\nthe ability of states to disclose a driver’s personal information without consent.\\n528 U.S. at 151. In determining that the anticommandeering doctrine did not\\napply, the Court distinguished the law from those invalidated in New York and\\nPrintz:\\n [This law] does not require the States in their sovereign capacity\\n to regulate their own citizens. The [law] regulates the States as\\n the owners of [Department of Motor Vehicle] data bases. It does\\n not require the South Carolina Legislature to enact any laws or\\n regulations, and it does not require state officials to assist in the\\n enforcement of federal statutes regulating private individuals.\\nId. In Baker, the Court rejected a Tenth Amendment challenge to a provision\\nof a federal statute that eliminated the federal income tax exemption for\\ninterest earned on certain bonds issued by state and local governments unless\\nthe bonds were registered, treating the provision “as if it directly regulated\\nStates by prohibiting outright the issuance of [unregistered] bearer bonds.”\\n485 U.S. at 507–08, 511. The Court reasoned that the provision at issue merely\\n 30\\n\\n No. 18-11479\\n“regulat[ed] a state activity” and did not “seek to control or influence the\\nmanner in which States regulate private parties.” Id. at 514. “That a State\\nwishing to engage in certain activity must take administrative and sometimes\\nlegislative action to comply with federal standards regulating that activity is a\\ncommonplace that presents no constitutional defect.” Id. at 514–15.\\n“[S]ubstantial effort[s]” to comply with federal regulations are “an inevitable\\nconsequence of regulating a state activity.” Id. at 514.\\n In light of these cases, we conclude that the provisions of ICWA that\\nPlaintiffs challenge do not commandeer state agencies. Sections 1912(a) and\\n(d) impose notice and “active efforts” requirements on the “party” seeking the\\nfoster care placement of, or termination of parental rights to, an Indian child.\\nBecause both state agencies and private parties who engage in state child\\ncustody proceedings may fall under these provisions, 1912(a) and (d)\\n“evenhandedly regulate[] an activity in which both States and private actors\\nengage.” 14 See Murphy, 138 S. Ct. at 1478. Moreover, sections 1915(c) and (e)\\nimpose an obligation on “the agency or court effecting the placement” of an\\nIndian child to respect a tribe’s order of placement preferences and require that\\n“the State” maintain a record of each placement to be made available to the\\nSecretary or child’s tribe. These provisions regulate state activity and do not\\n\\n\\n\\n 14Similarly, section 1912(e) provides that no foster care placement may be ordered in\\ninvoluntary proceedings in state court absent “a determination, supported by clear and\\nconvincing evidence, including testimony of qualified expert witnesses, that the continued\\ncustody of the child by the parent or Indian custodian is likely to result in serious emotional\\nor physical damage to the child.” See 25 U.S.C. § 1912(e). Section 1912(f) requires that no\\ntermination of parental rights may be ordered in involuntary proceedings in state court\\nabsent evidence beyond a reasonable doubt of the same. See id. at 1912(f). Neither section\\nexpressly refers to state agencies and, in conjunction with section 1912(d), both sections must\\nbe reasonably read to refer to “any party” seeking the foster care placement of, or the\\ntermination of parental rights to, an Indian child. Thus, like section 1912(d), sections\\n1912(e)–(f) “evenhandedly regulate[] an activity in which both States and private actors\\nengage” and do not run afoul of the anticommandeering doctrine. See Murphy, 138 S. Ct. at\\n1478; see also Condon, 528 U.S. at 151.\\n 31\\n\\n No. 18-11479\\nrequire states to enact any laws or regulations, or to assist in the enforcement\\nof federal statutes regulating private individuals. See Condon, 528 U.S. at 151;\\nBaker, 485 U.S. at 514; see also Printz, 521 U.S. at 918 (distinguishing statutes\\nthat merely require states to provide information to the federal government\\nfrom those that command state executive agencies to actually administer\\nfederal programs). To the contrary, they merely require states to “take\\nadministrative . . . action to comply with federal standards regulating” child\\ncustody proceedings involving Indian children, which is permissible under the\\nTenth Amendment. 15 See Baker, 485 U.S. at 514–15.\\n B. Preemption\\n Defendants argue that, to the extent there is a conflict between ICWA\\nand applicable state laws in child custody proceedings, ICWA preempts state\\nlaw. The Supremacy Clause provides that federal law is the “supreme Law of\\n\\n\\n\\n 15 In ruling otherwise, the district court discussed Murphy and emphasized that\\nadhering to the anticommandeering rule is necessary to protect constitutional principles of\\nstate sovereignty, promote political accountability, and prevent Congress from shifting the\\ncosts of regulation to states. See Murphy, 138 S. Ct. at 1477. These principles do not compel\\nthe result reached by the district court. See id. First, the anticommandeering doctrine is not\\nnecessary here to protect constitutional principles of state sovereignty because ICWA\\nregulates the actions of state executive agencies in their role as child advocates and\\ncustodians, and not in their capacity as sovereigns enforcing ICWA. See id. at 1478; see also\\nCondon, 528 U.S. at 151 (concluding that the law in question there “does not require the\\nStates in their sovereign capacity to regulate their own citizens [but] regulates the States as\\nthe owners of data bases”). The need to promote political accountability is minimized here\\nfor similar reasons, as ICWA does not require states to regulate their own citizens. See\\nMurphy, 138 S. Ct. at 1477 (noting concern that, if states are required to impose a federal\\nregulation on their voters, the voters will not know who to credit or blame and responsibility\\nwill be “blurred”). Finally, the need to prevent Congress from shifting the costs of regulation\\nto states is also minimized here, where some of the requirements at issue, like those in\\nsections 1912(d) and 1915(c), simply regulate a state’s actions during proceedings that it\\nwould already be expending resources on. ICWA’s recordkeeping and notice requirements\\ncould impose costs on states, but we cannot conclude that these costs compel application of\\nthe anticommandeering doctrine. See Condon, 528 U.S. at 150 (a federal law that “require[d]\\ntime and effort on the part of state employees” was constitutional); Baker, 485 U.S. at 515\\n(that states may have to raise funds necessary to comply with federal regulations “presents\\nno constitutional defect”).\\n 32\\n\\n No. 18-11479\\nthe Land . . . any Thing in the Constitution or Laws of any State to the Contrary\\nnotwithstanding.” U.S. CONST. art. VI, cl. 2. Conflict preemption occurs when\\n“Congress enacts a law that imposes restrictions or confers rights on private\\nactors; a state law confers rights or imposes restrictions that conflict with the\\nfederal law; and therefore the federal law takes precedence and the state law\\nis preempted.” Murphy, 138 S. Ct. at 1480. For a federal law to preempt\\nconflicting state law, two requirements must be satisfied: The challenged\\nprovision of the federal law “must represent the exercise of a power conferred\\non Congress by the Constitution” and “must be best read as one that regulates\\nprivate actors” by imposing restrictions or conferring rights. Id. at 1479–80.\\nThe district court concluded that preemption does not apply here, as ICWA\\nregulates states rather than private actors. We review de novo whether a\\nfederal law preempts a state statute or common law cause of action. See\\nFriberg v. Kansas City S. Ry. Co., 267 F.3d 439, 442 (5th Cir. 2001).\\n Congress enacted ICWA to “establish[] minimum Federal standards for\\nthe removal of Indian children from their families and the placement of such\\nchildren in foster or adoptive homes which will reflect the unique values of\\nIndian culture.” 25 U.S.C. § 1902. Defendants contend that these minimum\\nfederal standards preempt conflicting state laws. Plaintiffs contend that\\npreemption does not apply here because ICWA regulates states and not\\nindividuals, and nothing in the Constitution gives Congress authority to\\nregulate the adoption of Indian children under state jurisdiction.\\n ICWA specifies that Congress’s authority to regulate the adoption of\\nIndian children arises under the Indian Commerce Clause as well as “other\\nconstitutional authority.” 25 U.S.C. § 1901(1). The Indian Commerce Clause\\nprovides that “[t]he Congress shall have Power To . . . regulate Commerce . . .\\nwith the Indian Tribes.” U.S. CONST. art. I, § 8, cl. 3. The Supreme Court has\\nrepeatedly held that the Indian Commerce Clause grants Congress plenary\\n 33\\n\\n No. 18-11479\\npower over Indian affairs. See Lara, 541 U.S. at 200 (noting that the Indian\\nCommerce and Treaty Clauses are sources of Congress’s “plenary and\\nexclusive” “powers to legislate in respect to Indian tribes”); Ramah Navajo Sch.\\nBd., Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 837 (1982)\\n(discussing Congress’s “broad power . . . to regulate tribal affairs under the\\nIndian Commerce Clause”); Mancari, 417 U.S. at 551–52 (noting that “[t]he\\nplenary power of Congress to deal with the special problems of Indians is\\ndrawn both explicitly and implicitly from,” inter alia, the Indian Commerce\\nClause). Plaintiffs do not provide authority to support a departure from that\\nprinciple here.\\n Moreover, ICWA clearly regulates private individuals. See Murphy, 138\\nS. Ct. at 1479–80. In enacting the statute, Congress declared that it was the\\ndual policy of the United States to protect the best interests of Indian children\\nand promote the stability and security of Indian families and tribes. 25 U.S.C.\\n§ 1902. Each of the challenged provisions applies within the context of state\\ncourt proceedings involving Indian children and is informed by and designed\\nto promote Congress’s goals by conferring rights upon Indian children and\\nfamilies. 16 See H.R. REP. No. 95-1386, at 18 (1978) (“We conclude that rights\\narising under [ICWA] may be enforced, as of right, in the courts of the States\\nwhen their jurisdiction, as prescribed by local law, is adequate to the occasion.”\\n\\n\\n 16 Arguably, two of the challenged provisions of ICWA could be construed to\\nsimultaneously “confer[] rights” on Indian children and families while “imposing restrictions”\\non state agencies. See Murphy, 138 S. Ct. at 1479–80. Section 1915(c) requires “the agency\\nor court effecting [a] placement” to adhere to a tribe’s established order of placement\\npreferences, and section 1915(e) requires states to keep records and make them available to\\nthe Secretary and Indian tribes. 25 U.S.C. § 1915(c), (e). However, Murphy instructs that\\nfor a provision of a federal statute to preempt state law, the provision must be “best read as\\none that regulates private actors.” See 138 S. Ct. at 1479 (emphasis added). In light of\\nCongress’s express purpose in enacting ICWA, the legislative history of the statute, and\\nsection 1915’s scope in setting forth minimum standards for the “Placement of Indian\\nchildren,” we conclude that these provisions are “best read” as regulating private actors by\\nconferring rights on Indian children and families. See id.\\n 34\\n\\n No. 18-11479\\n(quoting Second Employers’ Liability Cases, 223 U.S. 1, 59 (1912))). Thus, to\\nthe extent ICWA’s minimum federal standards conflict with state law, “federal\\nlaw takes precedence and the state law is preempted.” See Murphy, 138 S. Ct.\\nat 1480.\\n IV. Nondelegation Doctrine\\n Article I of the Constitution vests “[a]ll legislative Powers” in Congress.\\nU.S. CONST. art. 1, § 1, cl. 1. “In a delegation challenge, the constitutional\\nquestion is whether the statute has delegated legislative power to the agency.”\\nWhitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). The limitations on\\nCongress’s ability to delegate its legislative power are “less stringent in cases\\nwhere the entity exercising the delegated authority itself possesses\\nindependent authority over the subject matter.” See United States v. Mazurie,\\n419 U.S. 544, 556–57 (1975). ICWA section 1915(c) allows Indian tribes to\\nestablish through tribal resolution a different order of preferred placement\\nthan that set forth in sections 1915(a) and (b). 17 Section 23.130 of the Final\\nRule provides that a tribe’s established placement preferences apply over those\\nspecified in ICWA. 18 The district court determined that these provisions\\nviolated the nondelegation doctrine, reasoning that section 1915(c) grants\\nIndian tribes the power to change legislative preferences with binding effect\\non the states, and Indian tribes, like private entities, are not part of the federal\\ngovernment of the United States and cannot exercise federal legislative or\\nexecutive regulatory power over non-Indians on non-tribal lands.\\n\\n\\n\\n 17 The section provides: “In the case of a placement under subsection (a) or (b) of this\\nsection, if the Indian child’s tribe shall establish a different order of preference by resolution,\\nthe agency or court effecting the placement shall follow such order so long as the placement\\nis the least restrictive setting appropriate to the particular needs of the child, as provided in\\nsubsection (b) of this section.” 25 U.S.C. § 1915(c).\\n 18 “If the Indian child’s Tribe has established by resolution a different order of\\n\\npreference than that specified in ICWA, the Tribe’s placement preferences apply.” 25 C.F.R.\\n§ 23.130.\\n 35\\n\\n No. 18-11479\\n Defendants argue that the district court’s analysis of the\\nconstitutionality of these provisions ignores the inherent sovereign authority\\nof tribes. They contend that section 1915 merely recognizes and incorporates\\na tribe’s exercise of its inherent sovereignty over Indian children and therefore\\ndoes not—indeed cannot—delegate this existing authority to Indian tribes.\\n The Supreme Court has long recognized that Congress may incorporate\\nthe laws of another sovereign into federal law without violating the\\nnondelegation doctrine. See Mazurie, 419 U.S. at 557 (“[I]ndependent tribal\\nauthority is quite sufficient to protect Congress’ decision to vest in tribal\\ncouncils this portion of its own authority ‘to regulate Commerce . . . with the\\nIndian tribes.’”); United States v. Sharpnack, 355 U.S. 286, 293–94 (1958)\\n(holding that a statute that prospectively incorporated state criminal laws “in\\nforce at the time” of the alleged crime was a “deliberate continuing adoption by\\nCongress” of state law as binding federal law in federal enclaves within state\\nboundaries); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 80 (1824) (“Although\\nCongress cannot enable a State to legislate, Congress may adopt the provisions\\nof a State on any subject.”). “Indian tribes are unique aggregations possessing\\nattributes of sovereignty over both their members and their territory.”\\nMazurie, 419 U.S. at 557. Though some exercises of tribal power require\\n“express congressional delegation,” the “tribes retain their inherent power to\\ndetermine tribal membership [and] to regulate domestic relations among\\nmembers . . . .” See Montana v. United States, 450 U.S. 544, 564 (1981); see\\nalso Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 170 (1982) (“tribes retain\\nthe power to create substantive law governing internal tribal affairs” like tribal\\ncitizenship and child custody).\\n In Mazurie, a federal law allowed the tribal council of the Wind River\\nTribes, with the approval of the Secretary of the Interior, to adopt ordinances\\nto control the introduction of alcoholic beverages by non-Indians on privately\\n 36\\n\\n No. 18-11479\\nowned land within the boundaries of the reservation. See 419 U.S. at 547, 557.\\nThe Supreme Court held that the law did not violate the nondelegation\\ndoctrine, focusing on the Tribes’ inherent power to regulate their internal and\\nsocial relations by controlling the distribution and use of intoxicants within the\\nreservation’s bounds. Id. Mazurie is instructive here. ICWA section 1915(c)\\nprovides that a tribe may pass, by its own legislative authority, a resolution\\nreordering the three placement preferences set forth by Congress in section\\n1915(a). Pursuant to this section, a tribe may assess whether the most\\nappropriate placement for an Indian child is with members of the child’s\\nextended family, the child’s tribe, or other Indian families, and thereby\\nexercise its “inherent power to determine tribal membership [and] regulate\\ndomestic relations among members” and Indian children eligible for\\nmembership. See Montana, 450 U.S. at 564.\\n State Plaintiffs contend that Mazurie is distinguishable because it\\ninvolves the exercise of tribal authority on tribal lands, whereas ICWA permits\\nthe extension of tribal authority over states and persons on non-tribal lands.\\nWe find this argument unpersuasive. It is well established that tribes have\\n“sovereignty over both their members and their territory.” See Mazurie, 419\\nU.S. at 557 (emphasis added). For a tribe to exercise its authority to determine\\ntribal membership and to regulate domestic relations among its members, it\\nmust necessarily be able to regulate all Indian children, irrespective of their\\nlocation. 19 See Montana, 450 U.S. at 564 (tribes retain inherent power to\\nregulate domestic relations and determine tribal membership); Merrion, 455\\nU.S. at 170 (tribes retain power to govern tribal citizenship and child custody).\\nSection 1915(c), by recognizing the inherent powers of tribal sovereigns to\\n\\n\\n\\n 19Indeed, as the BIA noted in promulgating the Final Rule, at least 78% of Native\\nAmericans lived outside of Indian country as of 2016. See 81 Fed. Reg. at 38,778, 38,783.\\n 37\\n\\n No. 18-11479\\ndetermine by resolution the order of placement preferences applicable to an\\nIndian child, is thus a “deliberate continuing adoption by Congress” of tribal\\nlaw as binding federal law. See Sharpnack, 355 U.S. at 293–94; see also 25\\nU.S.C. § 1915(c); 81 Fed. Reg. at 38,784 (the BIA noting that “through\\nnumerous statutory provisions, ICWA helps ensure that State courts\\nincorporate Indian social and cultural standards into decision-making that\\naffects Indian children”). We therefore conclude that ICWA section 1915(c) is\\nnot an unconstitutional delegation of Congressional legislative power to tribes,\\nbut is an incorporation of inherent tribal authority by Congress. See Mazurie,\\n419 U.S. at 544; Sharpnack, 355 U.S. at 293–94.\\n V. The Final Rule\\n The district court held that, to the extent sections 23.106–22, 23.124–32,\\nand 23.140–41 of the Final Rule were binding on State Plaintiffs, they violated\\nthe APA for three reasons: The provisions (1) purported to implement an\\nunconstitutional statute; (2) exceeded the scope of the Interior Department’s\\nstatutory regulatory authority to enforce ICWA with binding regulations; and\\n(3) reflected an impermissible construction of ICWA section 1915. We examine\\neach of these bases in turn.\\n A. The Constitutionality of ICWA\\n Because we concluded that the challenged provisions of ICWA are\\nconstitutional, for reasons discussed earlier in this opinion, the district court’s\\nfirst conclusion that the Final Rule was invalid because it implemented an\\nunconstitutional statue was erroneous. Thus, the statutory basis of the Final\\nRule is constitutionally valid.\\n B. The Scope of the BIA’s Authority\\n Congress authorized the Secretary of the Interior to promulgate rules\\nand regulations that may be necessary to carry out the provisions of ICWA.\\nSee 25 U.S.C. § 1952. Pursuant to this provision, the BIA, acting under\\n 38\\n\\n No. 18-11479\\nauthority delegated by the Interior Department, issued guidelines in 1979 for\\nstate courts in Indian child custody proceedings that were “not intended to\\nhave binding legislative effect.” 44 Fed. Reg. at 67,584. The BIA explained\\nthat, generally, “when the Department writes rules needed to carry out\\nresponsibilities Congress has explicitly imposed on the Department, those\\nrules are binding.” Id. However, when “the Department writes rules or\\nguidelines advising some other agency how it should carry out responsibilities\\nexplicitly assigned to it by Congress, those rules or guidelines are not, by\\nthemselves, binding.” Id. With respect to ICWA, the BIA concluded in 1979\\nthat it was “not necessary” to issue binding regulations advising states how to\\ncarry out the responsibilities Congress assigned to them; state courts were\\n“fully capable” of implementing the responsibilities Congress imposed on them,\\nand nothing in the language or legislative history of 25 U.S.C. § 1952 indicated\\nthat Congress intended the BIA to exercise supervisory control over states. Id.\\nHowever, in 2016, the BIA changed course and issued the Final Rule, which\\nsets binding standards for state courts in Indian child-custody proceedings.\\nSee 25 C.F.R. §§ 23.101, 23.106; 81 Fed. Reg. at 38,779, 38,785. The BIA\\nexplained that its earlier, nonbinding guidelines were “insufficient to fully\\nimplement Congress’s goal of nationwide protections for Indian children,\\nparents, and Tribes.” 81 Fed. Reg. at 38,782. Without the Final Rule, the BIA\\nstated, state-specific determinations about how to implement ICWA would\\ncontinue “with potentially devastating consequences” for those Congress\\nintended ICWA to protect. See id.\\n In reviewing “an agency’s construction of the statute which it\\nadministers,” we are “confronted with two questions.” Chevron, U.S.A., Inc. v.\\nNat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). First, we must\\nexamine whether the statute is ambiguous. Id. at 842. “If the intent of\\nCongress is clear, that is the end of the matter; for the court, as well as the\\n 39\\n\\n No. 18-11479\\nagency, must give effect to the unambiguously expressed intent of Congress.”\\nId. But “if the statute is silent or ambiguous with respect to the specific issue,\\nthe question for the court is whether the agency’s answer is based on a\\npermissible construction of the statute.” Id. at 842–43. We must uphold an\\nagency’s reasonable interpretation of an ambiguous statute. Id. at 844.\\n Under Chevron step one, the question is whether Congress\\nunambiguously intended to grant the Department authority to promulgate\\nbinding rules and regulations. ICWA provides that “the Secretary shall\\npromulgate such rules and regulations as may be necessary to carry out the\\nprovisions of this chapter.” 25 U.S.C. § 1952. The provision’s plain language\\nconfers broad authority on the Department to promulgate rules and\\nregulations it deems necessary to carry out ICWA. This language can be\\nconstrued to grant the authority to issue binding rules and regulations;\\nhowever, because “Congress has not directly addressed the precise question at\\nissue,” we conclude that section 1952 is ambiguous. See Chevron, 467 U.S. at\\n843.\\n Moving to the second Chevron step, we must determine whether the\\nBIA’s current interpretation of its authority to issue binding regulations\\npursuant to section 1952 is reasonable. See 467 U.S. at 843–44. Defendants\\nargue that section 1952’s language is substantively identical to other statutes\\nconferring broad delegations of rulemaking authority. Indeed, the Supreme\\nCourt has held that “[w]here the empowering provision of a statute states\\nsimply that the agency may make . . . such rules and regulations as may be\\nnecessary to carry out the provisions of this Act . . . the validity of a regulation\\npromulgated thereunder will be sustained so long as it is reasonably related to\\nthe purposes of the enabling legislation.” Mourning v. Family Publications\\nServ., Inc., 411 U.S. 356, 369 (1973) (internal quotation marks omitted); see\\nalso City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 306 (2013) (noting a lack of\\n 40\\n\\n No. 18-11479\\n“case[s] in which a general conferral of rulemaking or adjudicative authority\\nhas been held insufficient to support Chevron deference for an exercise of that\\nauthority within the agency’s substantive field”). Here, section 1952’s text is\\nsubstantially similar to the language in Mourning, and the Final Rule’s\\nbinding standards for Indian child custody proceedings are reasonably related\\nto ICWA’s purpose of establishing minimum federal standards in child custody\\nproceedings involving Indian children. See 25 U.S.C. § 1902. Thus, the Final\\nRule is a reasonable exercise of the broad authority granted to the BIA by\\nCongress in ICWA section 1952.\\n Plaintiffs contend that the BIA reversed its position on the scope of its\\nauthority to issue binding regulations after thirty-seven years and without\\nexplanation and its interpretation was therefore not entitled to deference. We\\ndisagree. “The mere fact that an agency interpretation contradicts a prior\\nagency position is not fatal. Sudden and unexplained change, or change that\\ndoes not take account of legitimate reliance on prior interpretation, may be\\narbitrary, capricious [or] an abuse of discretion. But if these pitfalls are\\navoided, change is not invalidating, since the whole point of Chevron is to leave\\nthe discretion provided by the ambiguities of a statute with the implementing\\nagency.” Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742 (1996)\\n(internal citations and quotation marks omitted). The agency must provide\\n“reasoned explanation” for its new policy, though “it need not demonstrate to\\na court’s satisfaction that the reasons for the new policy are better than the\\nreasons for the old one.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,\\n515 (2009). “[I]t suffices that the new policy is permissible under the statute,\\nthat there are good reasons for it, and that the agency believes it to be better,\\nwhich the conscious change of course adequately indicates.” Id.\\n The BIA directly addressed its reasons for departing from its earlier\\ninterpretation that it had no authority to promulgate binding regulations,\\n 41\\n\\n No. 18-11479\\nexplaining that, under Supreme Court precedent, the text of section 1952\\nconferred “a broad and general grant of rulemaking authority.” 81 Fed. Reg.\\nat 38,785 (collecting Supreme Court cases). The BIA further discussed why it\\nnow considered binding regulations necessary to implement ICWA: In 1979,\\nthe BIA “had neither the benefit of the Holyfield Court’s carefully reasoned\\ndecision nor the opportunity to observe how a lack of uniformity in the\\ninterpretation of ICWA by State courts could undermine the statute’s\\nunderlying purposes.” 81 Fed. Reg. at 38,787 (citing Holyfield, 490 U.S. at 30).\\n In Holyfield, the Supreme Court considered the meaning of the term\\n“domicile,” which ICWA section 1911 left undefined and the BIA left open to\\nstate interpretation under its 1979 Guidelines. 490 U.S. at 43, 51. The Court\\nheld that “it is most improbable that Congress would have intended to leave\\nthe scope of the statute’s key jurisdictional provision subject to definition by\\nstate courts as a matter of state law,” given that “Congress was concerned with\\nthe rights of Indian families vis-à-vis state authorities” and considered “States\\nand their courts as partly responsible for the problem it intended to correct”\\nthrough ICWA. Id. at 45. Because Congress intended for ICWA to address a\\nnationwide problem, the Court determined that the lack of nationwide\\nuniformity resulting from varied state-law definitions of this term frustrated\\nCongress’s intent. Id. The Holyfield Court’s reasoning applies here.\\nCongress’s concern with safeguarding the rights of Indian families and\\ncommunities was not limited to section 1911 and extended to all provisions of\\nICWA, including those at issue here. Thus, as the BIA explained, all provisions\\nof ICWA that it left open to state interpretation in 1979, including many that\\nPlaintiffs now challenge, were subject to the lack of uniformity the Supreme\\nCourt identified in Holyfield and determined was contrary to Congress’s intent.\\n81 Fed. Reg. at 38,782. Thus, in light of Holyfield, the BIA has provided a\\n“reasoned explanation” for departing from its earlier interpretation of its\\n 42\\n\\n No. 18-11479\\nauthority under section 1952 and for the need of binding regulations with\\nrespect to ICWA. See Fox Television Stations, 556 U.S. at 515.\\n In addition to assessing whether an agency’s interpretation of a statute\\nis reasonable under Chevron, the APA requires that we “hold unlawful and set\\naside agency action . . . found to be . . . arbitrary, capricious, an abuse of\\ndiscretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).\\nContrary to Plaintiffs’ contentions, the BIA explained that the Final Rule\\nresulted from years of study and public outreach and participation. See 81 Fed.\\nReg. 38,778, 38,784–85. In promulgating the rule, the BIA relied on its own\\nexpertise in Indian affairs, its experience in administering ICWA and other\\nIndian child-welfare programs, state interpretations and best practices, 20\\npublic hearings, and tribal consultations. See id. Thus, the BIA’s current\\ninterpretation is not “arbitrary, capricious, [or] an abuse of discretion” because\\nit was not sudden and unexplained. See Smiley, 517 U.S. at 742; 5 U.S.C.\\n§ 706(a)(2). The district court’s contrary conclusion was error.\\n C. The BIA’s Construction of ICWA Section 1915\\n ICWA section 1915 sets forth three preferences for the placement of\\nIndian children unless good cause can be shown to depart from them. 25 U.S.C.\\n§ 1915(a)–(b). The 1979 Guidelines initially advised that the term “good cause”\\nin ICWA section 1915 “was designed to provide state courts with flexibility in\\ndetermining the disposition of a placement proceeding involving an Indian\\nchild.” 44 Fed. Reg. 67,584. However, section 23.132(b) of the Final Rule\\nspecifies that “[t]he party seeking departure from [section 1915’s] placement\\npreferences should bear the burden of proving by clear and convincing evidence\\nthat there is ‘good cause’ to depart from the placement preferences.” 25 C.F.R.\\n\\n\\n 20 Since ICWA’s enactment in 1978, several states have incorporated the statute’s\\nrequirements into their own laws or have enacted detailed procedures for their state agencies\\nto collaborate with tribes in child custody proceedings.\\n 43\\n\\n No. 18-11479\\n§ 23.132(b). The district court determined that Congress unambiguously\\nintended the ordinary preponderance-of-the-evidence standard to apply, and\\nthe BIA’s interpretation that a higher standard applied was therefore not\\nentitled to Chevron deference.\\n Defendants contend that the Final Rule’s clear-and-convincing standard\\nis merely suggestive and not binding. They further aver that the Final Rule’s\\nclarification of the meaning of “good cause” and imposition of a clear-and-\\nconvincing-evidence standard are entitled to Chevron deference. Plaintiffs\\nrespond that state courts have interpreted the clear-and-convincing standard\\nas more than just suggestive in practice, and the Final Rule’s fixed definition\\nof “good cause” is contrary to ICWA’s intent to provide state courts with\\nflexibility.\\n Though provisions of the Final Rule are generally binding on states, the\\nBIA indicated that it did not intend for section 23.132(b) to establish a binding\\nstandard. See 25 C.F.R. § 23.132 (“The party seeking departure from the\\nplacement preferences should bear the burden of proving by clear and\\nconvincing evidence that there is ‘good cause’ to depart from the placement\\npreferences.” (emphasis added)). The BIA explained that “[w]hile the final rule\\nadvises that the application of the clear and convincing standard ‘should’ be\\nfollowed, it does not categorically require that outcome . . . [and] the\\nDepartment declines to establish a uniform standard of proof on this issue.”\\nSee 81 Fed. Reg. at 38,843.\\n The BIA’s interpretation of section 1915 is also entitled to Chevron\\ndeference. For purposes of Chevron step one, the statute is silent with respect\\nto which evidentiary standard applies. See 25 U.S.C. § 1915; Chevron, 467 U.S.\\nat 842. The district court relied on the canon of expressio unius est exclusio\\nalterius (“the expression of one is the exclusion of others”) in finding that\\nCongress unambiguously intended that a preponderance-of-the-evidence\\n 44\\n\\n No. 18-11479\\nstandard was necessary to show good cause under ICWA section 1915. The\\ncourt reasoned that because Congress specified a heightened evidentiary\\nstandard in other provisions of ICWA, but did not do so with respect to section\\n1915, Congress did not intend for the heightened clear-and-convincing-\\nevidence standard to apply. This was error. “When interpreting statutes that\\ngovern agency action, . . . a congressional mandate in one section and silence\\nin another often suggests not a prohibition but simply a decision not to\\nmandate any solution in the second context, i.e., to leave the question to agency\\ndiscretion.” Catawba Cty., N.C. v. E.P.A., 571 F.3d 20, 36 (D.C. Cir. 2009).\\n“[T]hat Congress spoke in one place but remained silent in another . . . rarely\\nif ever suffices for the direct answer that Chevron step one requires.” Id.\\n(cleaned up); see also Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940\\nF.2d 685, 694 (D.C. Cir. 1991) (“Under Chevron, we normally withhold\\ndeference from an agency’s interpretation of a statute only when Congress has\\ndirectly spoken to the precise question at issue, and the expressio canon is\\nsimply too thin a reed to support the conclusion that Congress has clearly\\nresolved this issue.”) (internal citations and quotation marks omitted).\\n Under Chevron step two, the BIA’s current interpretation of the\\napplicable evidentiary standard is reasonable. See Chevron, 467 U.S. at 844.\\nThe BIA’s suggestion that the clear-and-convincing standard should apply was\\nderived from the best practices of state courts. 81 Fed. Reg. at, 38,843. The\\nFinal Rule explains that, since ICWA’s passage, “courts that have grappled\\nwith the issue have almost universally concluded that application of the clear\\nand convincing evidence standard is required as it is most consistent with\\nCongress’s intent in ICWA to maintain Indian families and Tribes intact.” Id.\\nBecause the BIA’s current interpretation of section 1915, as set forth in Final\\nRule section 23.132(b), was based on its analysis of state cases and geared\\ntoward furthering Congress’s intent, it is reasonable and entitled to Chevron\\n 45\\n\\n No. 18-11479\\ndeference. Moreover, the BIA’s current interpretation is nonbinding and\\ntherefore consistent with the 1979 Guidelines in allowing state courts\\nflexibility to determine “good cause.” Section 23.132(b) of the Final Rule is\\nthus valid under the APA. See 5 U.S.C. § 706(a)(2).\\n ***\\n For these reasons, we conclude that Plaintiffs had standing to bring all\\nclaims and that ICWA and the Final Rule are constitutional because they are\\nbased on a political classification that is rationally related to the fulfillment of\\nCongress’s unique obligation toward Indians; ICWA preempts conflicting state\\nlaws and does not violate the Tenth Amendment anticommandeering doctrine;\\nand ICWA and the Final Rule do not violate the nondelegation doctrine. We\\nalso conclude that the Final Rule implementing the ICWA is valid because the\\nICWA is constitutional, the BIA did not exceed its authority when it issued the\\nFinal Rule, and the agency’s interpretation of ICWA section 1915 is reasonable.\\nAccordingly, we AFFIRM the district court’s judgment that Plaintiffs had\\nArticle III standing. But we REVERSE the district court’s grant of summary\\njudgment for Plaintiffs and RENDER judgment in favor of Defendants on all\\nclaims.\\n\\n\\n\\n\\n 46\\n\\n No. 18-11479\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3677,"cells":{"id":{"kind":"number","value":4649424,"string":"4,649,424"},"name":{"kind":"string","value":"In RE: Larry SWEARINGEN, Movant"},"name_abbreviation":{"kind":"string","value":"In Re: Larry Swearingen"},"decision_date":{"kind":"string","value":"2019-08-16"},"docket_number":{"kind":"string","value":"19-20565"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Costa, Willett, Duncan\", \"parties\": \"\", \"opinions\": [{\"author\": \"STUART KYLE DUNCAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 19-20565 Document: 00515080515 Page: 1 Date Filed: 08/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 19-20565 FILED\\n August 16, 2019\\n Lyle W. Cayce\\nIn re: LARRY SWEARINGEN, Clerk\\n\\n Movant\\n\\n\\n\\n\\n Motion for an Order Authorizing the United States District Court\\n for the Southern District of Texas to Consider a Successive\\n 28 U.S.C. § 2254 Petition and for Stay of Execution\\n\\n\\nBefore COSTA, WILLETT, and DUNCAN, Circuit Judges.\\nSTUART KYLE DUNCAN, Circuit Judge:\\n Larry Ray Swearingen, convicted nineteen years ago of capital murder\\nfor strangling nineteen-year-old Melissa Trotter, seeks permission to file a\\nfourth federal habeas corpus petition. He also moves to stay, for the fifth time,\\nhis execution date, scheduled for the evening of Wednesday, August 21, 2019.\\nFinding Swearingen’s claims fail to meet the strict requirements imposed by\\n28 U.S.C. § 2244(b) for authorizing a successive petition, we DENY his\\napplication and also DENY his motion for stay of execution.\\n I.\\n The facts and extensive litigation history of Swearingen’s case have been\\ncatalogued elsewhere. See, e.g., Swearingen v. State, 101 S.W.3d 89, 92 (Tex.\\nCrim. App. 2003) (direct appeal); Swearingen v. Presiding Judge of 9th\\nJudicial Dist. Court, Montgomery Cty., 2005 WL 995214 (Tex. Crim. App. 2005)\\n(mandamus petition); Swearingen v. Dretke, No. H-04-2058, slip op. (S.D. Tex.\\n\\f Case: 19-20565 Document: 00515080515 Page: 2 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nSept. 8, 2005) (first federal habeas); Swearingen v. Quarterman, 192 F. App’x\\n300 (5th Cir. 2006) (per curiam) (first federal habeas), cert. denied, 127 S. Ct.\\n1269 (2007); Ex parte Swearingen, 2008 WL 650306 (Tex. Crim. App. 2008)\\n(third state writ); Ex parte Swearingen, 2008 WL 5245348 (Tex. Crim. App.\\nDec. 17, 2008) (third state writ), cert. denied, 129 S. Ct. 1383 (2009); Ex parte\\nSwearingen, 2009 WL 249759 (Tex. Crim. App. Jan. 27, 2009) (fourth state\\nwrit); In re Swearingen, 556 F.3d 344 (5th Cir. 2009) (per curiam) (second\\nfederal habeas); Swearingen v. Thaler, 2009 WL 4433221 (S.D. Tex. Nov. 18,\\n2009) (second federal habeas); Ex parte Swearingen, 2009 WL 249778 (Tex.\\nCrim. App. 2009) (sixth state writ); Swearingen v. State, 303 S.W.3d 728 (Tex.\\nCrim. App. 2010) (third DNA motion); Swearingen v. Thaler, 421 F. App’x 413,\\n414 (5th Cir. 2011) (per curiam) (second federal habeas), cert. denied, 132 S.\\nCt. 1632; In re Swearingen, No. 11-20276, slip op. (5th Cir. May 9, 2011) (per\\ncuriam) (third federal habeas); Swearingen v. Obama, 2011 WL 2037607 (S.D.\\nTex. May 20, 2011) (civil rights complaint construed as unauthorized federal\\nhabeas); Ex Parte Swearingen, 2011 WL 3273901, (Tex. Crim. App. 2011) (sixth\\nstate writ); Ex parte Swearingen, 2012 WL 6200431 (Tex. Crim. App. 2012)\\n(sixth and seventh state writs), cert. denied sub nom. Swearingen v. Texas, 570\\nU.S. 905 (2013); State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014)\\n(fourth DNA motion); In re Swearingen, 2014 WL 1101761, (Tex. App. 2014)\\n(mandamus petition); State v. Swearingen, 478 S.W.3d 716 (Tex. Crim. App.\\n2015) (fifth DNA motion), cert. denied, 137 S. Ct. 60; Swearingen v. Keller, 2017\\nWL 6803366 (W.D. Tex. Nov. 9, 2017) (suit against Texas Court of Criminal\\nAppeals dismissed as frivolous). We provide a skeletal recitation here.\\n Swearingen was sentenced to death in 2000 after a Texas jury\\ndetermined that he murdered Trotter by strangulation while committing, or\\nattempting to commit, kidnapping or sexual assault. His conviction was based\\non a “mountain of inculpatory evidence.” Swearingen, 303 S.W.3d at 736\\n 2\\n\\f Case: 19-20565 Document: 00515080515 Page: 3 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\n(quoting Ex parte Swearingen, 2009 WL 249778, at *9 (Cochran, J.,\\nconcurring)); see also, e.g., Swearingen, 2009 WL 4433221 at *2–3 (cataloguing\\n“the extensive evidence of [Swearingen’s] guilt which the State adduced at\\ntrial”). The Texas Court of Criminal Appeals (“TCCA”) affirmed his conviction\\nand sentence. Over the next two decades, “Swearingen has filed a convoluted\\ntangle of habeas applications, pro se motions, mandamus actions, and amended\\npleadings,” seeking to overturn his conviction and postpone his death sentence.\\nId. at *6; see also id. at *6–10 (recounting state and federal post-conviction\\nlitigation history through 2009); Swearingen, 478 S.W.3d at 719 (recounting\\nhistory of motions for post-conviction DNA testing). These legal machinations\\nhave resulted in Swearingen’s execution being put off five times.\\n On March 12, 2019, his sixth execution date was set for Wednesday,\\nAugust 21, 2019. Seven days before the execution date, Swearingen sought our\\ncourt’s authorization to file a fourth habeas petition based on two claims. First,\\nbased on a recent letter from the Texas Department of Public Safety (“DPS”),\\nSwearingen claims the State sponsored “false and misleading” trial testimony\\nregarding blood flecks found under Trotter’s fingernails, in violation of Giglio\\nv. United States, 405 U.S. 150 (1972). Second, based on another recent DPS\\nletter, Swearingen claims the State withheld evidence that a criminologist had\\n“manufactured” evidence that the torn pantyhose used to strangle Trotter\\nmatched the pantyhose found at Swearingen’s house, in violation of both Giglio\\nand Brady v. Maryland, 373 U.S. 83 (1963). Based on these claims, Swearingen\\nhas also moved for a stay of execution.\\n II.\\n A.\\n Swearingen must receive this court’s authorization to file a second or\\nsuccessive petition. 28 U.S.C. § 2244(b)(3)(A); see generally, e.g., In re Raby,\\n925 F.3d 749, 754 (5th Cir. 2019). We may give that authorization only if we\\n 3\\n\\f Case: 19-20565 Document: 00515080515 Page: 4 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nconclude that Swearingen’s application makes a prima facie showing that it\\nsatisfies the strict requirements in § 2244(b). Id. A prima facie showing is\\n“simply a sufficient showing of possible merit to warrant a fuller exploration\\nby the district court.” In re Campbell, 750 F.3d 523, 530 (5th Cir. 2014) (citation\\nomitted). Consequently, if it seems reasonably likely that a successive petition\\nmeets the strict requirements provided in the statute, we will grant the motion\\nfor a successive petition. Id.\\n As both parties concede that Swearingen’s present claims were not\\nraised in previous federal habeas petitions, Swearingen must therefore make\\na prima facie showing that he satisfies the requirements of § 2244(b)(2)(B):\\n (2) A claim presented in a second or successive habeas corpus\\n application under section 2254 that was not presented in a prior\\n application shall be dismissed unless—\\n ...\\n (B)(i) the factual predicate for the claim could not have been\\n discovered previously through the exercise of due diligence; and\\n (ii) the facts underlying the claim, if proven and viewed in\\n light of the evidence as a whole, would be sufficient to establish by\\n clear and convincing evidence that, but for constitutional error, no\\n reasonable factfinder would have found the applicant guilty of the\\n underlying offense.\\n\\nId. § 2244(b)(2)(B).\\n This analysis does not address the merits of Swearingen’s two claims,\\nbut only whether Swearingen “makes a prima facie showing that [he] can meet\\nthe [two] requirements of § 2244(b)(2).” Swearingen, 556 F.3d at 347. Within\\nthat framework, we consider each of Swearingen’s claims in turn.\\n B.\\n Swearingen claims that a recent letter from the DPS crime lab director—\\nsent to Swearingen’s counsel on August 9, 2019—shows the State sponsored\\n“false and misleading” trial testimony from a DPS analyst, Cassie Carradine,\\n\\n 4\\n\\f Case: 19-20565 Document: 00515080515 Page: 5 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nconcerning blood flecks found under Trotter’s fingernails. Evidence at trial\\nshowed that the DNA profile derived from these flecks matched neither Trotter\\nnor Swearingen. Swearingen, 303 S.W.3d at 735. According to Swearingen,\\nCarradine testified this blood came from “contamination” of the sample,\\nleading the jury to discount the possibility that the blood actually pointed to\\nsomeone else as Trotter’s murderer. Now he claims that the 2019 DPS letter\\nshows Carradine’s testimony was fraudulently concocted by the State in\\nviolation of Giglio. This claim fails to meet both of the § 2244(b)(2)(B) threshold\\nrequirements.\\n At the outset, we observe that Swearingen mischaracterizes what the\\nDPS letter says. He claims that the letter “proves” that Carradine’s testimony\\nwas “false and misleading” and thus “demonstrates that the State sponsored\\nthe false contamination theory for the purpose of misleading the jury.” The\\nletter (which we reproduce in full below) says nothing like that. The letter first\\nnotes that Carradine “was qualified” to opine about contamination “within the\\nDPS laboratory or based on the packaging and condition of the evidence,” but\\nthat she lacked “direct knowledge” about how the evidence was “collected or\\nstored prior to its submission to DPS” (emphasis added). Thus, the letter states\\nthat a “more appropriate answer” from Carradine “would have been that she\\ncould not speak to the possibility of contamination of the samples when they\\nwere outside the control of the DPS laboratory.” Next, the letter states that\\nCarradine had an “insufficient basis” to opine regarding contamination and\\nthat, therefore, she should have testified that “[t]he full range of possibilities\\ninclude contamination or that it was not contamination and the [DNA] profile\\ndid come from the evidence.” Contrary to Swearingen’s characterization, the\\nletter does not say that Carradine testified “falsely” and says nothing to\\nsuggest that the State “sponsored” a “false contamination theory” to “mislead”\\nthe jury. Instead, the letter says at most that Carradine lacked a foundation to\\n 5\\n\\f Case: 19-20565 Document: 00515080515 Page: 6 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nopine on contamination that may have occurred when the samples were outside\\nDPS custody, and that her answers should have recognized that nuance.\\n We also note that Swearingen’s application neither quotes Carradine’s\\nactual trial testimony nor provides transcripts of her testimony. Nonetheless,\\nSwearingen baldly claims that Carradine “definitively told the jury” that the\\nblood flecks were “the result of contamination either at the DPS Crime Lab or\\nat earlier Autopsy [sic].” That is false. The trial record pages Swearingen cites\\nto support that claim tell a different story. After describing how she collected\\nthe flakes, Carradine testified only that there was a “possibility” of\\ncontamination. And while she briefly referred to the possibility that the flecks\\nmay have been deposited “at the time . . . the sample was being collected,” she\\nfocused far more on the possibility that the contamination might have occurred\\nin the DPS lab. Furthermore, Swearingen’s counsel objected to Carradine’s\\ntestimony as “speculation,” and then cross-examined her extensively on how\\nthe fingernail scrapings were packaged and how she handled them. During\\nthat cross-examination, Carradine was asked how the samples were\\ntransported to DPS and she responded, “I have no way of knowing how they\\nwere transported to the office.”\\n Having properly characterized Swearingen’s claim regarding the letter,\\nwe can now assess whether his claim meets the two prongs of § 2244(b)(2)(B).\\nWe conclude it meets neither.\\n First, the claim’s “factual predicate”—that Carradine lacked a\\nfoundation for her testimony regarding possible contamination—could have\\nbeen discovered long before the DPS letter was sent in August 2019. Indeed,\\nthe record shows that Swearingen’s attorneys were already aware of the issue:\\nHis trial attorneys objected to Carradine’s testimony on this point as\\n“speculative,” they cross-examined her on how she received and handled the\\nfingernail scrapings, and they elicited an admission that she had “no way of\\n 6\\n\\f Case: 19-20565 Document: 00515080515 Page: 7 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nknowing” how the samples were handled before arriving at DPS. More broadly,\\nwhether the blood flecks came from contamination was vigorously contested at\\ntrial. See, e.g., Swearingen, 424 S.W.3d at 39 (observing that “[t]he jury chose\\nto believe that the foreign DNA either was contamination or that it came from\\noutside the context of the crime”); Swearingen, 2009 WL 249778 at *5 n.7\\n(Cochran, J., concurring) (listing post-conviction court’s findings on blood\\nflakes). Any “reasonable attorney would have been put on notice” that they\\nshould have probed the basis for Carradine’s testimony on this issue—and\\nSwearingen’s attorneys did just that at trial. See Blackman v. Davis, 909 F.3d\\n772, 779 (5th Cir. 2018), cert. denied, 139 S. Ct. 1215 (2019).\\n Second, even assuming the facts underlying this claim are true —again,\\nthat Carradine lacked a foundation for testifying about possible\\ncontamination—we cannot say that no reasonable jury would have found\\nSwearingen guilty “in light of the evidence as a whole.” 28 U.S.C.\\n§ 2244(b)(2)(B)(ii). As the State points out, Carradine’s testimony was\\ncumulative of more detailed expert testimony from Dr. Joye Carter, from which\\na jury might have readily reached the same conclusion about the blood. And\\neven if we assume the foreign DNA under Trotter’s fingernails was not from\\ncontamination, that would not clearly and convincingly exonerate Swearingen.\\nWe cannot improve on the TCCA’s reasoning on this point:\\n We are not persuaded that results showing the presence of another\\n DNA donor in the fingernail scrapings would overcome the\\n “mountain of evidence” of the appellee’s guilt. Primarily, this is\\n because the victim’s having encountered another person would not\\n factually exclude the appellee from having killed her.\\n\\nSwearingen, 424 S.W.3d at 38–39. Given that “mountain of evidence,” jurors\\ncould have found the DNA evidence outweighed by the prosecution’s case, even\\n\\n\\n\\n\\n 7\\n\\f Case: 19-20565 Document: 00515080515 Page: 8 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nwithout a suggestion that the sample was contaminated. 1 While theoretically\\npossible that DNA evidence from the blood flakes could have swayed the jury,\\nit is not sufficient under § 2244(b) merely to show that evidence “muddies the\\nwaters.” In re Raby, 925 F.3d at 759. “Clear and convincing” evidence is\\nrequired. § 2244(b)(2)(B)(ii). Even assuming Carradine’s testimony on this\\npoint lacked any foundation, Swearingen has not come close to establishing\\nthat “no reasonable factfinder” would have found him guilty. 2\\n C.\\n Swearingen next claims that, in violation of Giglio, the State sponsored\\nfalse trial testimony from a criminologist, Sandy Musialowski, concerning the\\ndegree of “match” between the ligature used to strangle Trotter and the torn\\npantyhose found at Swearingen’s home. He also claims that, in violation of\\nBrady, the State withheld exculpatory and impeaching evidence on this issue.\\nHis Giglio claim is based on another recent DPS letter which he says “retracts”\\nMusialowski’s opinion that the ligature and the pantyhose matched. His Brady\\n\\n\\n 1 Swearingen cites four state cases where blood under a victim’s fingernails was found\\nsufficient to support a guilty verdict. See Cotton v. State, 144 So.3d 137, 142 (Miss. 2014);\\nState v. Abdelmalik, 273 S.W.3d 61, 66 (Mo. App. 2008); State v. Scott, 97 So.3d 1046, 1052\\n(La. Ct. App. 2012); State v. Gibbs, 763 N.W.2d 430, 443 (ND 2009). Those cases do not help\\nhis claim. The cases do not stand for the proposition that the presence of foreign DNA under\\nthe victim’s fingernails necessarily establishes a defendant’s innocence, particularly in a case\\nlike this one where there is a massive amount of evidence, distinct from the fingernail\\nevidence, tying the defendant to the crime.\\n 2 Reinforcing this point, Swearingen also fails to establish that “but for constitutional\\nerror, no reasonable factfinder would have found the applicant guilty of the underlying\\noffense” because he has not put forward a prima facie case for a constitutional violation. 28\\nU.S.C. § 2244(b)(2)(B)(ii). For purposes of a Giglio claim, “due process is not implicated by\\nthe prosecution’s introduction or allowance of false or perjured testimony unless the\\nprosecution actually knows or believes the testimony to be false or perjured.” Kutzner v.\\nCockrell, 303 F.3d 333, 337 (5th Cir. 2002); see also Raby, 925 F.3d at 756–57. While\\nSwearingen argues that Carradine’s testimony was false, he fails to argue the State knew it\\nwas false at the time. Thus, Swearingen fails to show a prima facie constitutional error under\\nGiglio, and so he cannot establish that “but for constitutional error” no rational jury would\\nhave found him guilty.\\n\\n\\n 8\\n\\f Case: 19-20565 Document: 00515080515 Page: 9 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nclaim is based on notes, written by Musialowski during her examination of the\\ntorn pantyhose, that he claims the State withheld. We conclude that these\\ninterrelated claims fail to satisfy § 2244(b)(2)(B).\\n The Giglio claim turns on a July 19, 2019 letter from DPS that\\nSwearingen again misrepresents. The letter (also reproduced below) does not\\n“retract” Musialowski’s testimony—it merely says her testimony about the\\nmatch between the ligature and the torn pantyhose would today use different\\nterminology. “Today,” says DPS, “we would report that the two pieces [of\\npantyhose] were once joined, but would not include the statement ‘to the\\nexclusion of all others.’” At the same time, the letter affirms that Musialowski\\n“did not err in her reporting or testimony regarding [the pantyhose match].”\\nWe think it sufficient to dispose of this claim to say this: Even if proven true,\\nwe do not think the claim provides clear and convincing evidence that no\\nreasonable jury would find Swearingen guilty. In other words, even if\\nMusialowski’s testimony were revised from “the litgature and the pantyhose\\nwere a unique match to the exclusion of all others,” to “the litgature and the\\npantyhose were once joined,” we see no possibility that this would make any\\ndifference to Swearingen’s guilt.\\n Finally, the Brady claim turns on Musialowski’s allegedly undisclosed\\nnotes. The notes document that, at the initial stages of her examination,\\nMusialowski could not say the ligature and the pantyhose were a “physical\\nmatch,” but as her examination progressed, she was able to determine that\\nthey were indeed a “unique physical match.” Swearingen claims this is\\nevidence that his attorneys could have used to impeach Musialowski’s key\\nconclusion linking him to the murder weapon. We conclude this claim fails both\\nprongs of § 2244(b)(2)(B).\\n With respect to the due diligence prong, § 2244(b)(2)(B)(i), Swearingen’s\\nattorneys were obviously aware at trial of the precise nature of Musialowski’s\\n 9\\n\\f Case: 19-20565 Document: 00515080515 Page: 10 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nexamination of the pantyhose, which is reflected in the allegedly undisclosed\\nnotes. For instance, the statement plausibly helpful to Swearingen in the notes\\nis the notation that Musialowski, having initially observed the ligature and\\npantyhose under glass plates, observed “no physical match between ligature\\nand pantyhose.” But this phase of the investigation, and the difficulties\\nMusialowski faced, were discussed in detail at trial. Musialowski testified that\\nshe attempted to observe the ligature and pantyhose on glass plates, but\\n“because the ends were rolling, it was difficult for [her] to keep the ends down\\nto compare.” So, she used other methods, including pinning the fabric to a foam\\nboard, which ultimately led to her conclusion of a match. The notes are\\nconsistent with Musialowski’s testimony at trial, and thus do not constitute\\nnew evidence previously undiscoverable by due diligence. Swearingen’s claim\\nthus fails under § 2244(b)(2)(B)(i).\\n Alternatively, Swearingen’s claim about the notes fails the second prong\\nof § 2244(b)(2)(B). As already discussed, Musialowski’s notes were basically\\ncumulative of her trial testimony about her developing examination of the\\npantyhose and ligature. Introducing the notes would simply have\\nestablished—as her trial testimony did—that Musialowski did not initially see\\na match when analyzing the items on glass plates, but did see one upon further\\ninvestigation. These facts were already present in her trial testimony and\\nwould have been, at most, marginally enhanced by the notes. Thus, the notes,\\neven if introduced and credited by the jury, would not have led to a trial in\\nwhich “no reasonable factfinder would have found the applicant guilty of the\\nunderlying offense.” 28 U.S.C. § 2244(b)(2)(B).\\n That conclusion is particularly compelling given that § 2244(b) requires\\nus to assess the claim “in light of the evidence as a whole.” § 2244(b)(2)(B)(ii).\\nWe have before alluded to the “mountain of inculpatory evidence,” discussed in\\ndetail by numerous courts, state and federal, that seals Swearingen’s guilt for\\n 10\\n\\f Case: 19-20565 Document: 00515080515 Page: 11 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nTrotter’s murder. Swearingen, 303 S.W.3d at 736. We end by quoting a\\nrelatively succinct summary of that evidence from a federal district court,\\nwhich underscores why Swearingen’s “new” claims in this latest phase could\\nnot possibly have made any difference to the outcome of his trial:\\n To reiterate, Swearingen was the last person that Ms. Trotter was\\n seen with alive. Ms. Trotter had been in Swearingen’s truck, where\\n he forcibly removed hair follicles. Swearingen’s histological evidence\\n does not explain why she was in his house that day, why it was later\\n found to be in disarray, and why he falsely claimed that there had\\n been a burglary there. The evidence itself does not explain why\\n papers belonging to Ms. Trotter were found near the house of\\n Swearingen’s parents and her cigarettes were in Swearingen’s\\n house. The new information does not explain why Ms. Trotter was\\n found wearing the same clothes as when she disappeared and why\\n she had a note given to her by a friend on December 8 in her back\\n pocket. The new evidence does not show why cell phone records\\n traced Swearingen to a location near where Ms. Trotter was found.\\n Histology does not explain why half of a pair of pantyhose belonging\\n to Swearingen’s wife was found in Swearingen’s house and the other\\n half around Ms. Trotter's neck. The new evidence does not explain\\n why the same meal Ms. Trotter was last seen eating was found in\\n her stomach. Swearingen lied about his whereabouts, tried to\\n fabricate an alibi, made false police reports, fled from the police,\\n asked friends to lie in his behalf, told others that the police would\\n be after him, and crafted an ultimately inculpatory letter to throw\\n attention away from himself. Swearingen told other inmates, “Fuck,\\n yeah, I did it.”\\n\\nSwearingen, 2009 WL 4433221, at *23 (footnote omitted). 3\\n III.\\n We DENY authorization to file a successive habeas corpus petition. We\\nDENY the motion for stay of execution.\\n\\n\\n\\n 3 The TCCA today dismissed the claims Swearingen raises here as an abuse of the\\nwrit. Ex parte Larry Ray Swearingen, No. WR-53,613-14 (Tex. Crim. App. Aug. 15, 2019).\\nBecause we deny Swearingen’s application on other grounds, we need not decide whether his\\nclaims are procedurally defaulted as well. See In re Raby, 925 F.3d at 755 n.7.\\n 11\\n\\fCase: 19-20565 Document: 00515080515 Page: 12 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\n APPENDIX\\n\\n\\n\\n\\n 12\\n\\fCase: 19-20565 Document: 00515080515 Page: 13 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\n APPENDIX\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426677/\", \"author_raw\": \"STUART KYLE DUNCAN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"COSTA"},"judge2":{"kind":"string","value":"WILLETT"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4649424/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In RE: Larry SWEARINGEN, Movant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 19-20565 Document: 00515080515 Page: 1 Date Filed: 08/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 19-20565 FILED\n August 16, 2019\n Lyle W. Cayce\nIn re: LARRY SWEARINGEN, Clerk\n\n Movant\n\n\n\n\n Motion for an Order Authorizing the United States District Court\n for the Southern District of Texas to Consider a Successive\n 28 U.S.C. § 2254 Petition and for Stay of Execution\n\n\nBefore COSTA, WILLETT, and DUNCAN, Circuit Judges.\nSTUART KYLE DUNCAN, Circuit Judge:\n Larry Ray Swearingen, convicted nineteen years ago of capital murder\nfor strangling nineteen-year-old Melissa Trotter, seeks permission to file a\nfourth federal habeas corpus petition. He also moves to stay, for the fifth time,\nhis execution date, scheduled for the evening of Wednesday, August 21, 2019.\nFinding Swearingen’s claims fail to meet the strict requirements imposed by\n28 U.S.C. § 2244(b) for authorizing a successive petition, we DENY his\napplication and also DENY his motion for stay of execution.\n I.\n The facts and extensive litigation history of Swearingen’s case have been\ncatalogued elsewhere. See, e.g., Swearingen v. State, 101 S.W.3d 89, 92 (Tex.\nCrim. App. 2003) (direct appeal); Swearingen v. Presiding Judge of 9th\nJudicial Dist. Court, Montgomery Cty., 2005 WL 995214 (Tex. Crim. App. 2005)\n(mandamus petition); Swearingen v. Dretke, No. H-04-2058, slip op. (S.D. Tex.\n\f Case: 19-20565 Document: 00515080515 Page: 2 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\nSept. 8, 2005) (first federal habeas); Swearingen v. Quarterman, 192 F. App’x\n300 (5th Cir. 2006) (per curiam) (first federal habeas), cert. denied, 127 S. Ct.\n1269 (2007); Ex parte Swearingen, 2008 WL 650306 (Tex. Crim. App. 2008)\n(third state writ); Ex parte Swearingen, 2008 WL 5245348 (Tex. Crim. App.\nDec. 17, 2008) (third state writ), cert. denied, 129 S. Ct. 1383 (2009); Ex parte\nSwearingen, 2009 WL 249759 (Tex. Crim. App. Jan. 27, 2009) (fourth state\nwrit); In re Swearingen, 556 F.3d 344 (5th Cir. 2009) (per curiam) (second\nfederal habeas); Swearingen v. Thaler, 2009 WL 4433221 (S.D. Tex. Nov. 18,\n2009) (second federal habeas); Ex parte Swearingen, 2009 WL 249778 (Tex.\nCrim. App. 2009) (sixth state writ); Swearingen v. State, 303 S.W.3d 728 (Tex.\nCrim. App. 2010) (third DNA motion); Swearingen v. Thaler, 421 F. App’x 413,\n414 (5th Cir. 2011) (per curiam) (second federal habeas), cert. denied, 132 S.\nCt. 1632; In re Swearingen, No. 11-20276, slip op. (5th Cir. May 9, 2011) (per\ncuriam) (third federal habeas); Swearingen v. Obama, 2011 WL 2037607 (S.D.\nTex. May 20, 2011) (civil rights complaint construed as unauthorized federal\nhabeas); Ex Parte Swearingen, 2011 WL 3273901, (Tex. Crim. App. 2011) (sixth\nstate writ); Ex parte Swearingen, 2012 WL 6200431 (Tex. Crim. App. 2012)\n(sixth and seventh state writs), cert. denied sub nom. Swearingen v. Texas, 570\nU.S. 905 (2013); State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014)\n(fourth DNA motion); In re Swearingen, 2014 WL 1101761, (Tex. App. 2014)\n(mandamus petition); State v. Swearingen, 478 S.W.3d 716 (Tex. Crim. App.\n2015) (fifth DNA motion), cert. denied, 137 S. Ct. 60; Swearingen v. Keller, 2017\nWL 6803366 (W.D. Tex. Nov. 9, 2017) (suit against Texas Court of Criminal\nAppeals dismissed as frivolous). We provide a skeletal recitation here.\n Swearingen was sentenced to death in 2000 after a Texas jury\ndetermined that he murdered Trotter by strangulation while committing, or\nattempting to commit, kidnapping or sexual assault. His conviction was based\non a “mountain of inculpatory evidence.” Swearingen, 303 S.W.3d at 736\n 2\n\f Case: 19-20565 Document: 00515080515 Page: 3 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\n(quoting Ex parte Swearingen, 2009 WL 249778, at *9 (Cochran, J.,\nconcurring)); see also, e.g., Swearingen, 2009 WL 4433221 at *2–3 (cataloguing\n“the extensive evidence of [Swearingen’s] guilt which the State adduced at\ntrial”). The Texas Court of Criminal Appeals (“TCCA”) affirmed his conviction\nand sentence. Over the next two decades, “Swearingen has filed a convoluted\ntangle of habeas applications, pro se motions, mandamus actions, and amended\npleadings,” seeking to overturn his conviction and postpone his death sentence.\nId. at *6; see also id. at *6–10 (recounting state and federal post-conviction\nlitigation history through 2009); Swearingen, 478 S.W.3d at 719 (recounting\nhistory of motions for post-conviction DNA testing). These legal machinations\nhave resulted in Swearingen’s execution being put off five times.\n On March 12, 2019, his sixth execution date was set for Wednesday,\nAugust 21, 2019. Seven days before the execution date, Swearingen sought our\ncourt’s authorization to file a fourth habeas petition based on two claims. First,\nbased on a recent letter from the Texas Department of Public Safety (“DPS”),\nSwearingen claims the State sponsored “false and misleading” trial testimony\nregarding blood flecks found under Trotter’s fingernails, in violation of Giglio\nv. United States, 405 U.S. 150 (1972). Second, based on another recent DPS\nletter, Swearingen claims the State withheld evidence that a criminologist had\n“manufactured” evidence that the torn pantyhose used to strangle Trotter\nmatched the pantyhose found at Swearingen’s house, in violation of both Giglio\nand Brady v. Maryland, 373 U.S. 83 (1963). Based on these claims, Swearingen\nhas also moved for a stay of execution.\n II.\n A.\n Swearingen must receive this court’s authorization to file a second or\nsuccessive petition. 28 U.S.C. § 2244(b)(3)(A); see generally, e.g., In re Raby,\n925 F.3d 749, 754 (5th Cir. 2019). We may give that authorization only if we\n 3\n\f Case: 19-20565 Document: 00515080515 Page: 4 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\nconclude that Swearingen’s application makes a prima facie showing that it\nsatisfies the strict requirements in § 2244(b). Id. A prima facie showing is\n“simply a sufficient showing of possible merit to warrant a fuller exploration\nby the district court.” In re Campbell, 750 F.3d 523, 530 (5th Cir. 2014) (citation\nomitted). Consequently, if it seems reasonably likely that a successive petition\nmeets the strict requirements provided in the statute, we will grant the motion\nfor a successive petition. Id.\n As both parties concede that Swearingen’s present claims were not\nraised in previous federal habeas petitions, Swearingen must therefore make\na prima facie showing that he satisfies the requirements of § 2244(b)(2)(B):\n (2) A claim presented in a second or successive habeas corpus\n application under section 2254 that was not presented in a prior\n application shall be dismissed unless—\n ...\n (B)(i) the factual predicate for the claim could not have been\n discovered previously through the exercise of due diligence; and\n (ii) the facts underlying the claim, if proven and viewed in\n light of the evidence as a whole, would be sufficient to establish by\n clear and convincing evidence that, but for constitutional error, no\n reasonable factfinder would have found the applicant guilty of the\n underlying offense.\n\nId. § 2244(b)(2)(B).\n This analysis does not address the merits of Swearingen’s two claims,\nbut only whether Swearingen “makes a prima facie showing that [he] can meet\nthe [two] requirements of § 2244(b)(2).” Swearingen, 556 F.3d at 347. Within\nthat framework, we consider each of Swearingen’s claims in turn.\n B.\n Swearingen claims that a recent letter from the DPS crime lab director—\nsent to Swearingen’s counsel on August 9, 2019—shows the State sponsored\n“false and misleading” trial testimony from a DPS analyst, Cassie Carradine,\n\n 4\n\f Case: 19-20565 Document: 00515080515 Page: 5 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\nconcerning blood flecks found under Trotter’s fingernails. Evidence at trial\nshowed that the DNA profile derived from these flecks matched neither Trotter\nnor Swearingen. Swearingen, 303 S.W.3d at 735. According to Swearingen,\nCarradine testified this blood came from “contamination” of the sample,\nleading the jury to discount the possibility that the blood actually pointed to\nsomeone else as Trotter’s murderer. Now he claims that the 2019 DPS letter\nshows Carradine’s testimony was fraudulently concocted by the State in\nviolation of Giglio. This claim fails to meet both of the § 2244(b)(2)(B) threshold\nrequirements.\n At the outset, we observe that Swearingen mischaracterizes what the\nDPS letter says. He claims that the letter “proves” that Carradine’s testimony\nwas “false and misleading” and thus “demonstrates that the State sponsored\nthe false contamination theory for the purpose of misleading the jury.” The\nletter (which we reproduce in full below) says nothing like that. The letter first\nnotes that Carradine “was qualified” to opine about contamination “within the\nDPS laboratory or based on the packaging and condition of the evidence,” but\nthat she lacked “direct knowledge” about how the evidence was “collected or\nstored prior to its submission to DPS” (emphasis added). Thus, the letter states\nthat a “more appropriate answer” from Carradine “would have been that she\ncould not speak to the possibility of contamination of the samples when they\nwere outside the control of the DPS laboratory.” Next, the letter states that\nCarradine had an “insufficient basis” to opine regarding contamination and\nthat, therefore, she should have testified that “[t]he full range of possibilities\ninclude contamination or that it was not contamination and the [DNA] profile\ndid come from the evidence.” Contrary to Swearingen’s characterization, the\nletter does not say that Carradine testified “falsely” and says nothing to\nsuggest that the State “sponsored” a “false contamination theory” to “mislead”\nthe jury. Instead, the letter says at most that Carradine lacked a foundation to\n 5\n\f Case: 19-20565 Document: 00515080515 Page: 6 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\nopine on contamination that may have occurred when the samples were outside\nDPS custody, and that her answers should have recognized that nuance.\n We also note that Swearingen’s application neither quotes Carradine’s\nactual trial testimony nor provides transcripts of her testimony. Nonetheless,\nSwearingen baldly claims that Carradine “definitively told the jury” that the\nblood flecks were “the result of contamination either at the DPS Crime Lab or\nat earlier Autopsy [sic].” That is false. The trial record pages Swearingen cites\nto support that claim tell a different story. After describing how she collected\nthe flakes, Carradine testified only that there was a “possibility” of\ncontamination. And while she briefly referred to the possibility that the flecks\nmay have been deposited “at the time . . . the sample was being collected,” she\nfocused far more on the possibility that the contamination might have occurred\nin the DPS lab. Furthermore, Swearingen’s counsel objected to Carradine’s\ntestimony as “speculation,” and then cross-examined her extensively on how\nthe fingernail scrapings were packaged and how she handled them. During\nthat cross-examination, Carradine was asked how the samples were\ntransported to DPS and she responded, “I have no way of knowing how they\nwere transported to the office.”\n Having properly characterized Swearingen’s claim regarding the letter,\nwe can now assess whether his claim meets the two prongs of § 2244(b)(2)(B).\nWe conclude it meets neither.\n First, the claim’s “factual predicate”—that Carradine lacked a\nfoundation for her testimony regarding possible contamination—could have\nbeen discovered long before the DPS letter was sent in August 2019. Indeed,\nthe record shows that Swearingen’s attorneys were already aware of the issue:\nHis trial attorneys objected to Carradine’s testimony on this point as\n“speculative,” they cross-examined her on how she received and handled the\nfingernail scrapings, and they elicited an admission that she had “no way of\n 6\n\f Case: 19-20565 Document: 00515080515 Page: 7 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\nknowing” how the samples were handled before arriving at DPS. More broadly,\nwhether the blood flecks came from contamination was vigorously contested at\ntrial. See, e.g., Swearingen, 424 S.W.3d at 39 (observing that “[t]he jury chose\nto believe that the foreign DNA either was contamination or that it came from\noutside the context of the crime”); Swearingen, 2009 WL 249778 at *5 n.7\n(Cochran, J., concurring) (listing post-conviction court’s findings on blood\nflakes). Any “reasonable attorney would have been put on notice” that they\nshould have probed the basis for Carradine’s testimony on this issue—and\nSwearingen’s attorneys did just that at trial. See Blackman v. Davis, 909 F.3d\n772, 779 (5th Cir. 2018), cert. denied, 139 S. Ct. 1215 (2019).\n Second, even assuming the facts underlying this claim are true —again,\nthat Carradine lacked a foundation for testifying about possible\ncontamination—we cannot say that no reasonable jury would have found\nSwearingen guilty “in light of the evidence as a whole.” 28 U.S.C.\n§ 2244(b)(2)(B)(ii). As the State points out, Carradine’s testimony was\ncumulative of more detailed expert testimony from Dr. Joye Carter, from which\na jury might have readily reached the same conclusion about the blood. And\neven if we assume the foreign DNA under Trotter’s fingernails was not from\ncontamination, that would not clearly and convincingly exonerate Swearingen.\nWe cannot improve on the TCCA’s reasoning on this point:\n We are not persuaded that results showing the presence of another\n DNA donor in the fingernail scrapings would overcome the\n “mountain of evidence” of the appellee’s guilt. Primarily, this is\n because the victim’s having encountered another person would not\n factually exclude the appellee from having killed her.\n\nSwearingen, 424 S.W.3d at 38–39. Given that “mountain of evidence,” jurors\ncould have found the DNA evidence outweighed by the prosecution’s case, even\n\n\n\n\n 7\n\f Case: 19-20565 Document: 00515080515 Page: 8 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\nwithout a suggestion that the sample was contaminated. 1 While theoretically\npossible that DNA evidence from the blood flakes could have swayed the jury,\nit is not sufficient under § 2244(b) merely to show that evidence “muddies the\nwaters.” In re Raby, 925 F.3d at 759. “Clear and convincing” evidence is\nrequired. § 2244(b)(2)(B)(ii). Even assuming Carradine’s testimony on this\npoint lacked any foundation, Swearingen has not come close to establishing\nthat “no reasonable factfinder” would have found him guilty. 2\n C.\n Swearingen next claims that, in violation of Giglio, the State sponsored\nfalse trial testimony from a criminologist, Sandy Musialowski, concerning the\ndegree of “match” between the ligature used to strangle Trotter and the torn\npantyhose found at Swearingen’s home. He also claims that, in violation of\nBrady, the State withheld exculpatory and impeaching evidence on this issue.\nHis Giglio claim is based on another recent DPS letter which he says “retracts”\nMusialowski’s opinion that the ligature and the pantyhose matched. His Brady\n\n\n 1 Swearingen cites four state cases where blood under a victim’s fingernails was found\nsufficient to support a guilty verdict. See Cotton v. State, 144 So.3d 137, 142 (Miss. 2014);\nState v. Abdelmalik, 273 S.W.3d 61, 66 (Mo. App. 2008); State v. Scott, 97 So.3d 1046, 1052\n(La. Ct. App. 2012); State v. Gibbs, 763 N.W.2d 430, 443 (ND 2009). Those cases do not help\nhis claim. The cases do not stand for the proposition that the presence of foreign DNA under\nthe victim’s fingernails necessarily establishes a defendant’s innocence, particularly in a case\nlike this one where there is a massive amount of evidence, distinct from the fingernail\nevidence, tying the defendant to the crime.\n 2 Reinforcing this point, Swearingen also fails to establish that “but for constitutional\nerror, no reasonable factfinder would have found the applicant guilty of the underlying\noffense” because he has not put forward a prima facie case for a constitutional violation. 28\nU.S.C. § 2244(b)(2)(B)(ii). For purposes of a Giglio claim, “due process is not implicated by\nthe prosecution’s introduction or allowance of false or perjured testimony unless the\nprosecution actually knows or believes the testimony to be false or perjured.” Kutzner v.\nCockrell, 303 F.3d 333, 337 (5th Cir. 2002); see also Raby, 925 F.3d at 756–57. While\nSwearingen argues that Carradine’s testimony was false, he fails to argue the State knew it\nwas false at the time. Thus, Swearingen fails to show a prima facie constitutional error under\nGiglio, and so he cannot establish that “but for constitutional error” no rational jury would\nhave found him guilty.\n\n\n 8\n\f Case: 19-20565 Document: 00515080515 Page: 9 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\nclaim is based on notes, written by Musialowski during her examination of the\ntorn pantyhose, that he claims the State withheld. We conclude that these\ninterrelated claims fail to satisfy § 2244(b)(2)(B).\n The Giglio claim turns on a July 19, 2019 letter from DPS that\nSwearingen again misrepresents. The letter (also reproduced below) does not\n“retract” Musialowski’s testimony—it merely says her testimony about the\nmatch between the ligature and the torn pantyhose would today use different\nterminology. “Today,” says DPS, “we would report that the two pieces [of\npantyhose] were once joined, but would not include the statement ‘to the\nexclusion of all others.’” At the same time, the letter affirms that Musialowski\n“did not err in her reporting or testimony regarding [the pantyhose match].”\nWe think it sufficient to dispose of this claim to say this: Even if proven true,\nwe do not think the claim provides clear and convincing evidence that no\nreasonable jury would find Swearingen guilty. In other words, even if\nMusialowski’s testimony were revised from “the litgature and the pantyhose\nwere a unique match to the exclusion of all others,” to “the litgature and the\npantyhose were once joined,” we see no possibility that this would make any\ndifference to Swearingen’s guilt.\n Finally, the Brady claim turns on Musialowski’s allegedly undisclosed\nnotes. The notes document that, at the initial stages of her examination,\nMusialowski could not say the ligature and the pantyhose were a “physical\nmatch,” but as her examination progressed, she was able to determine that\nthey were indeed a “unique physical match.” Swearingen claims this is\nevidence that his attorneys could have used to impeach Musialowski’s key\nconclusion linking him to the murder weapon. We conclude this claim fails both\nprongs of § 2244(b)(2)(B).\n With respect to the due diligence prong, § 2244(b)(2)(B)(i), Swearingen’s\nattorneys were obviously aware at trial of the precise nature of Musialowski’s\n 9\n\f Case: 19-20565 Document: 00515080515 Page: 10 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\nexamination of the pantyhose, which is reflected in the allegedly undisclosed\nnotes. For instance, the statement plausibly helpful to Swearingen in the notes\nis the notation that Musialowski, having initially observed the ligature and\npantyhose under glass plates, observed “no physical match between ligature\nand pantyhose.” But this phase of the investigation, and the difficulties\nMusialowski faced, were discussed in detail at trial. Musialowski testified that\nshe attempted to observe the ligature and pantyhose on glass plates, but\n“because the ends were rolling, it was difficult for [her] to keep the ends down\nto compare.” So, she used other methods, including pinning the fabric to a foam\nboard, which ultimately led to her conclusion of a match. The notes are\nconsistent with Musialowski’s testimony at trial, and thus do not constitute\nnew evidence previously undiscoverable by due diligence. Swearingen’s claim\nthus fails under § 2244(b)(2)(B)(i).\n Alternatively, Swearingen’s claim about the notes fails the second prong\nof § 2244(b)(2)(B). As already discussed, Musialowski’s notes were basically\ncumulative of her trial testimony about her developing examination of the\npantyhose and ligature. Introducing the notes would simply have\nestablished—as her trial testimony did—that Musialowski did not initially see\na match when analyzing the items on glass plates, but did see one upon further\ninvestigation. These facts were already present in her trial testimony and\nwould have been, at most, marginally enhanced by the notes. Thus, the notes,\neven if introduced and credited by the jury, would not have led to a trial in\nwhich “no reasonable factfinder would have found the applicant guilty of the\nunderlying offense.” 28 U.S.C. § 2244(b)(2)(B).\n That conclusion is particularly compelling given that § 2244(b) requires\nus to assess the claim “in light of the evidence as a whole.” § 2244(b)(2)(B)(ii).\nWe have before alluded to the “mountain of inculpatory evidence,” discussed in\ndetail by numerous courts, state and federal, that seals Swearingen’s guilt for\n 10\n\f Case: 19-20565 Document: 00515080515 Page: 11 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\nTrotter’s murder. Swearingen, 303 S.W.3d at 736. We end by quoting a\nrelatively succinct summary of that evidence from a federal district court,\nwhich underscores why Swearingen’s “new” claims in this latest phase could\nnot possibly have made any difference to the outcome of his trial:\n To reiterate, Swearingen was the last person that Ms. Trotter was\n seen with alive. Ms. Trotter had been in Swearingen’s truck, where\n he forcibly removed hair follicles. Swearingen’s histological evidence\n does not explain why she was in his house that day, why it was later\n found to be in disarray, and why he falsely claimed that there had\n been a burglary there. The evidence itself does not explain why\n papers belonging to Ms. Trotter were found near the house of\n Swearingen’s parents and her cigarettes were in Swearingen’s\n house. The new information does not explain why Ms. Trotter was\n found wearing the same clothes as when she disappeared and why\n she had a note given to her by a friend on December 8 in her back\n pocket. The new evidence does not show why cell phone records\n traced Swearingen to a location near where Ms. Trotter was found.\n Histology does not explain why half of a pair of pantyhose belonging\n to Swearingen’s wife was found in Swearingen’s house and the other\n half around Ms. Trotter's neck. The new evidence does not explain\n why the same meal Ms. Trotter was last seen eating was found in\n her stomach. Swearingen lied about his whereabouts, tried to\n fabricate an alibi, made false police reports, fled from the police,\n asked friends to lie in his behalf, told others that the police would\n be after him, and crafted an ultimately inculpatory letter to throw\n attention away from himself. Swearingen told other inmates, “Fuck,\n yeah, I did it.”\n\nSwearingen, 2009 WL 4433221, at *23 (footnote omitted). 3\n III.\n We DENY authorization to file a successive habeas corpus petition. We\nDENY the motion for stay of execution.\n\n\n\n 3 The TCCA today dismissed the claims Swearingen raises here as an abuse of the\nwrit. Ex parte Larry Ray Swearingen, No. WR-53,613-14 (Tex. Crim. App. Aug. 15, 2019).\nBecause we deny Swearingen’s application on other grounds, we need not decide whether his\nclaims are procedurally defaulted as well. See In re Raby, 925 F.3d at 755 n.7.\n 11\n\fCase: 19-20565 Document: 00515080515 Page: 12 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\n APPENDIX\n\n\n\n\n 12\n\fCase: 19-20565 Document: 00515080515 Page: 13 Date Filed: 08/16/2019\n\n\n\n No. 19-20565\n APPENDIX\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In RE: Larry SWEARINGEN, Movant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 19-20565 Document: 00515080515 Page: 1 Date Filed: 08/16/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 19-20565 FILED\\n August 16, 2019\\n Lyle W. Cayce\\nIn re: LARRY SWEARINGEN, Clerk\\n\\n Movant\\n\\n\\n\\n\\n Motion for an Order Authorizing the United States District Court\\n for the Southern District of Texas to Consider a Successive\\n 28 U.S.C. § 2254 Petition and for Stay of Execution\\n\\n\\nBefore COSTA, WILLETT, and DUNCAN, Circuit Judges.\\nSTUART KYLE DUNCAN, Circuit Judge:\\n Larry Ray Swearingen, convicted nineteen years ago of capital murder\\nfor strangling nineteen-year-old Melissa Trotter, seeks permission to file a\\nfourth federal habeas corpus petition. He also moves to stay, for the fifth time,\\nhis execution date, scheduled for the evening of Wednesday, August 21, 2019.\\nFinding Swearingen’s claims fail to meet the strict requirements imposed by\\n28 U.S.C. § 2244(b) for authorizing a successive petition, we DENY his\\napplication and also DENY his motion for stay of execution.\\n I.\\n The facts and extensive litigation history of Swearingen’s case have been\\ncatalogued elsewhere. See, e.g., Swearingen v. State, 101 S.W.3d 89, 92 (Tex.\\nCrim. App. 2003) (direct appeal); Swearingen v. Presiding Judge of 9th\\nJudicial Dist. Court, Montgomery Cty., 2005 WL 995214 (Tex. Crim. App. 2005)\\n(mandamus petition); Swearingen v. Dretke, No. H-04-2058, slip op. (S.D. Tex.\\n\\f Case: 19-20565 Document: 00515080515 Page: 2 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nSept. 8, 2005) (first federal habeas); Swearingen v. Quarterman, 192 F. App’x\\n300 (5th Cir. 2006) (per curiam) (first federal habeas), cert. denied, 127 S. Ct.\\n1269 (2007); Ex parte Swearingen, 2008 WL 650306 (Tex. Crim. App. 2008)\\n(third state writ); Ex parte Swearingen, 2008 WL 5245348 (Tex. Crim. App.\\nDec. 17, 2008) (third state writ), cert. denied, 129 S. Ct. 1383 (2009); Ex parte\\nSwearingen, 2009 WL 249759 (Tex. Crim. App. Jan. 27, 2009) (fourth state\\nwrit); In re Swearingen, 556 F.3d 344 (5th Cir. 2009) (per curiam) (second\\nfederal habeas); Swearingen v. Thaler, 2009 WL 4433221 (S.D. Tex. Nov. 18,\\n2009) (second federal habeas); Ex parte Swearingen, 2009 WL 249778 (Tex.\\nCrim. App. 2009) (sixth state writ); Swearingen v. State, 303 S.W.3d 728 (Tex.\\nCrim. App. 2010) (third DNA motion); Swearingen v. Thaler, 421 F. App’x 413,\\n414 (5th Cir. 2011) (per curiam) (second federal habeas), cert. denied, 132 S.\\nCt. 1632; In re Swearingen, No. 11-20276, slip op. (5th Cir. May 9, 2011) (per\\ncuriam) (third federal habeas); Swearingen v. Obama, 2011 WL 2037607 (S.D.\\nTex. May 20, 2011) (civil rights complaint construed as unauthorized federal\\nhabeas); Ex Parte Swearingen, 2011 WL 3273901, (Tex. Crim. App. 2011) (sixth\\nstate writ); Ex parte Swearingen, 2012 WL 6200431 (Tex. Crim. App. 2012)\\n(sixth and seventh state writs), cert. denied sub nom. Swearingen v. Texas, 570\\nU.S. 905 (2013); State v. Swearingen, 424 S.W.3d 32 (Tex. Crim. App. 2014)\\n(fourth DNA motion); In re Swearingen, 2014 WL 1101761, (Tex. App. 2014)\\n(mandamus petition); State v. Swearingen, 478 S.W.3d 716 (Tex. Crim. App.\\n2015) (fifth DNA motion), cert. denied, 137 S. Ct. 60; Swearingen v. Keller, 2017\\nWL 6803366 (W.D. Tex. Nov. 9, 2017) (suit against Texas Court of Criminal\\nAppeals dismissed as frivolous). We provide a skeletal recitation here.\\n Swearingen was sentenced to death in 2000 after a Texas jury\\ndetermined that he murdered Trotter by strangulation while committing, or\\nattempting to commit, kidnapping or sexual assault. His conviction was based\\non a “mountain of inculpatory evidence.” Swearingen, 303 S.W.3d at 736\\n 2\\n\\f Case: 19-20565 Document: 00515080515 Page: 3 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\n(quoting Ex parte Swearingen, 2009 WL 249778, at *9 (Cochran, J.,\\nconcurring)); see also, e.g., Swearingen, 2009 WL 4433221 at *2–3 (cataloguing\\n“the extensive evidence of [Swearingen’s] guilt which the State adduced at\\ntrial”). The Texas Court of Criminal Appeals (“TCCA”) affirmed his conviction\\nand sentence. Over the next two decades, “Swearingen has filed a convoluted\\ntangle of habeas applications, pro se motions, mandamus actions, and amended\\npleadings,” seeking to overturn his conviction and postpone his death sentence.\\nId. at *6; see also id. at *6–10 (recounting state and federal post-conviction\\nlitigation history through 2009); Swearingen, 478 S.W.3d at 719 (recounting\\nhistory of motions for post-conviction DNA testing). These legal machinations\\nhave resulted in Swearingen’s execution being put off five times.\\n On March 12, 2019, his sixth execution date was set for Wednesday,\\nAugust 21, 2019. Seven days before the execution date, Swearingen sought our\\ncourt’s authorization to file a fourth habeas petition based on two claims. First,\\nbased on a recent letter from the Texas Department of Public Safety (“DPS”),\\nSwearingen claims the State sponsored “false and misleading” trial testimony\\nregarding blood flecks found under Trotter’s fingernails, in violation of Giglio\\nv. United States, 405 U.S. 150 (1972). Second, based on another recent DPS\\nletter, Swearingen claims the State withheld evidence that a criminologist had\\n“manufactured” evidence that the torn pantyhose used to strangle Trotter\\nmatched the pantyhose found at Swearingen’s house, in violation of both Giglio\\nand Brady v. Maryland, 373 U.S. 83 (1963). Based on these claims, Swearingen\\nhas also moved for a stay of execution.\\n II.\\n A.\\n Swearingen must receive this court’s authorization to file a second or\\nsuccessive petition. 28 U.S.C. § 2244(b)(3)(A); see generally, e.g., In re Raby,\\n925 F.3d 749, 754 (5th Cir. 2019). We may give that authorization only if we\\n 3\\n\\f Case: 19-20565 Document: 00515080515 Page: 4 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nconclude that Swearingen’s application makes a prima facie showing that it\\nsatisfies the strict requirements in § 2244(b). Id. A prima facie showing is\\n“simply a sufficient showing of possible merit to warrant a fuller exploration\\nby the district court.” In re Campbell, 750 F.3d 523, 530 (5th Cir. 2014) (citation\\nomitted). Consequently, if it seems reasonably likely that a successive petition\\nmeets the strict requirements provided in the statute, we will grant the motion\\nfor a successive petition. Id.\\n As both parties concede that Swearingen’s present claims were not\\nraised in previous federal habeas petitions, Swearingen must therefore make\\na prima facie showing that he satisfies the requirements of § 2244(b)(2)(B):\\n (2) A claim presented in a second or successive habeas corpus\\n application under section 2254 that was not presented in a prior\\n application shall be dismissed unless—\\n ...\\n (B)(i) the factual predicate for the claim could not have been\\n discovered previously through the exercise of due diligence; and\\n (ii) the facts underlying the claim, if proven and viewed in\\n light of the evidence as a whole, would be sufficient to establish by\\n clear and convincing evidence that, but for constitutional error, no\\n reasonable factfinder would have found the applicant guilty of the\\n underlying offense.\\n\\nId. § 2244(b)(2)(B).\\n This analysis does not address the merits of Swearingen’s two claims,\\nbut only whether Swearingen “makes a prima facie showing that [he] can meet\\nthe [two] requirements of § 2244(b)(2).” Swearingen, 556 F.3d at 347. Within\\nthat framework, we consider each of Swearingen’s claims in turn.\\n B.\\n Swearingen claims that a recent letter from the DPS crime lab director—\\nsent to Swearingen’s counsel on August 9, 2019—shows the State sponsored\\n“false and misleading” trial testimony from a DPS analyst, Cassie Carradine,\\n\\n 4\\n\\f Case: 19-20565 Document: 00515080515 Page: 5 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nconcerning blood flecks found under Trotter’s fingernails. Evidence at trial\\nshowed that the DNA profile derived from these flecks matched neither Trotter\\nnor Swearingen. Swearingen, 303 S.W.3d at 735. According to Swearingen,\\nCarradine testified this blood came from “contamination” of the sample,\\nleading the jury to discount the possibility that the blood actually pointed to\\nsomeone else as Trotter’s murderer. Now he claims that the 2019 DPS letter\\nshows Carradine’s testimony was fraudulently concocted by the State in\\nviolation of Giglio. This claim fails to meet both of the § 2244(b)(2)(B) threshold\\nrequirements.\\n At the outset, we observe that Swearingen mischaracterizes what the\\nDPS letter says. He claims that the letter “proves” that Carradine’s testimony\\nwas “false and misleading” and thus “demonstrates that the State sponsored\\nthe false contamination theory for the purpose of misleading the jury.” The\\nletter (which we reproduce in full below) says nothing like that. The letter first\\nnotes that Carradine “was qualified” to opine about contamination “within the\\nDPS laboratory or based on the packaging and condition of the evidence,” but\\nthat she lacked “direct knowledge” about how the evidence was “collected or\\nstored prior to its submission to DPS” (emphasis added). Thus, the letter states\\nthat a “more appropriate answer” from Carradine “would have been that she\\ncould not speak to the possibility of contamination of the samples when they\\nwere outside the control of the DPS laboratory.” Next, the letter states that\\nCarradine had an “insufficient basis” to opine regarding contamination and\\nthat, therefore, she should have testified that “[t]he full range of possibilities\\ninclude contamination or that it was not contamination and the [DNA] profile\\ndid come from the evidence.” Contrary to Swearingen’s characterization, the\\nletter does not say that Carradine testified “falsely” and says nothing to\\nsuggest that the State “sponsored” a “false contamination theory” to “mislead”\\nthe jury. Instead, the letter says at most that Carradine lacked a foundation to\\n 5\\n\\f Case: 19-20565 Document: 00515080515 Page: 6 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nopine on contamination that may have occurred when the samples were outside\\nDPS custody, and that her answers should have recognized that nuance.\\n We also note that Swearingen’s application neither quotes Carradine’s\\nactual trial testimony nor provides transcripts of her testimony. Nonetheless,\\nSwearingen baldly claims that Carradine “definitively told the jury” that the\\nblood flecks were “the result of contamination either at the DPS Crime Lab or\\nat earlier Autopsy [sic].” That is false. The trial record pages Swearingen cites\\nto support that claim tell a different story. After describing how she collected\\nthe flakes, Carradine testified only that there was a “possibility” of\\ncontamination. And while she briefly referred to the possibility that the flecks\\nmay have been deposited “at the time . . . the sample was being collected,” she\\nfocused far more on the possibility that the contamination might have occurred\\nin the DPS lab. Furthermore, Swearingen’s counsel objected to Carradine’s\\ntestimony as “speculation,” and then cross-examined her extensively on how\\nthe fingernail scrapings were packaged and how she handled them. During\\nthat cross-examination, Carradine was asked how the samples were\\ntransported to DPS and she responded, “I have no way of knowing how they\\nwere transported to the office.”\\n Having properly characterized Swearingen’s claim regarding the letter,\\nwe can now assess whether his claim meets the two prongs of § 2244(b)(2)(B).\\nWe conclude it meets neither.\\n First, the claim’s “factual predicate”—that Carradine lacked a\\nfoundation for her testimony regarding possible contamination—could have\\nbeen discovered long before the DPS letter was sent in August 2019. Indeed,\\nthe record shows that Swearingen’s attorneys were already aware of the issue:\\nHis trial attorneys objected to Carradine’s testimony on this point as\\n“speculative,” they cross-examined her on how she received and handled the\\nfingernail scrapings, and they elicited an admission that she had “no way of\\n 6\\n\\f Case: 19-20565 Document: 00515080515 Page: 7 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nknowing” how the samples were handled before arriving at DPS. More broadly,\\nwhether the blood flecks came from contamination was vigorously contested at\\ntrial. See, e.g., Swearingen, 424 S.W.3d at 39 (observing that “[t]he jury chose\\nto believe that the foreign DNA either was contamination or that it came from\\noutside the context of the crime”); Swearingen, 2009 WL 249778 at *5 n.7\\n(Cochran, J., concurring) (listing post-conviction court’s findings on blood\\nflakes). Any “reasonable attorney would have been put on notice” that they\\nshould have probed the basis for Carradine’s testimony on this issue—and\\nSwearingen’s attorneys did just that at trial. See Blackman v. Davis, 909 F.3d\\n772, 779 (5th Cir. 2018), cert. denied, 139 S. Ct. 1215 (2019).\\n Second, even assuming the facts underlying this claim are true —again,\\nthat Carradine lacked a foundation for testifying about possible\\ncontamination—we cannot say that no reasonable jury would have found\\nSwearingen guilty “in light of the evidence as a whole.” 28 U.S.C.\\n§ 2244(b)(2)(B)(ii). As the State points out, Carradine’s testimony was\\ncumulative of more detailed expert testimony from Dr. Joye Carter, from which\\na jury might have readily reached the same conclusion about the blood. And\\neven if we assume the foreign DNA under Trotter’s fingernails was not from\\ncontamination, that would not clearly and convincingly exonerate Swearingen.\\nWe cannot improve on the TCCA’s reasoning on this point:\\n We are not persuaded that results showing the presence of another\\n DNA donor in the fingernail scrapings would overcome the\\n “mountain of evidence” of the appellee’s guilt. Primarily, this is\\n because the victim’s having encountered another person would not\\n factually exclude the appellee from having killed her.\\n\\nSwearingen, 424 S.W.3d at 38–39. Given that “mountain of evidence,” jurors\\ncould have found the DNA evidence outweighed by the prosecution’s case, even\\n\\n\\n\\n\\n 7\\n\\f Case: 19-20565 Document: 00515080515 Page: 8 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nwithout a suggestion that the sample was contaminated. 1 While theoretically\\npossible that DNA evidence from the blood flakes could have swayed the jury,\\nit is not sufficient under § 2244(b) merely to show that evidence “muddies the\\nwaters.” In re Raby, 925 F.3d at 759. “Clear and convincing” evidence is\\nrequired. § 2244(b)(2)(B)(ii). Even assuming Carradine’s testimony on this\\npoint lacked any foundation, Swearingen has not come close to establishing\\nthat “no reasonable factfinder” would have found him guilty. 2\\n C.\\n Swearingen next claims that, in violation of Giglio, the State sponsored\\nfalse trial testimony from a criminologist, Sandy Musialowski, concerning the\\ndegree of “match” between the ligature used to strangle Trotter and the torn\\npantyhose found at Swearingen’s home. He also claims that, in violation of\\nBrady, the State withheld exculpatory and impeaching evidence on this issue.\\nHis Giglio claim is based on another recent DPS letter which he says “retracts”\\nMusialowski’s opinion that the ligature and the pantyhose matched. His Brady\\n\\n\\n 1 Swearingen cites four state cases where blood under a victim’s fingernails was found\\nsufficient to support a guilty verdict. See Cotton v. State, 144 So.3d 137, 142 (Miss. 2014);\\nState v. Abdelmalik, 273 S.W.3d 61, 66 (Mo. App. 2008); State v. Scott, 97 So.3d 1046, 1052\\n(La. Ct. App. 2012); State v. Gibbs, 763 N.W.2d 430, 443 (ND 2009). Those cases do not help\\nhis claim. The cases do not stand for the proposition that the presence of foreign DNA under\\nthe victim’s fingernails necessarily establishes a defendant’s innocence, particularly in a case\\nlike this one where there is a massive amount of evidence, distinct from the fingernail\\nevidence, tying the defendant to the crime.\\n 2 Reinforcing this point, Swearingen also fails to establish that “but for constitutional\\nerror, no reasonable factfinder would have found the applicant guilty of the underlying\\noffense” because he has not put forward a prima facie case for a constitutional violation. 28\\nU.S.C. § 2244(b)(2)(B)(ii). For purposes of a Giglio claim, “due process is not implicated by\\nthe prosecution’s introduction or allowance of false or perjured testimony unless the\\nprosecution actually knows or believes the testimony to be false or perjured.” Kutzner v.\\nCockrell, 303 F.3d 333, 337 (5th Cir. 2002); see also Raby, 925 F.3d at 756–57. While\\nSwearingen argues that Carradine’s testimony was false, he fails to argue the State knew it\\nwas false at the time. Thus, Swearingen fails to show a prima facie constitutional error under\\nGiglio, and so he cannot establish that “but for constitutional error” no rational jury would\\nhave found him guilty.\\n\\n\\n 8\\n\\f Case: 19-20565 Document: 00515080515 Page: 9 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nclaim is based on notes, written by Musialowski during her examination of the\\ntorn pantyhose, that he claims the State withheld. We conclude that these\\ninterrelated claims fail to satisfy § 2244(b)(2)(B).\\n The Giglio claim turns on a July 19, 2019 letter from DPS that\\nSwearingen again misrepresents. The letter (also reproduced below) does not\\n“retract” Musialowski’s testimony—it merely says her testimony about the\\nmatch between the ligature and the torn pantyhose would today use different\\nterminology. “Today,” says DPS, “we would report that the two pieces [of\\npantyhose] were once joined, but would not include the statement ‘to the\\nexclusion of all others.’” At the same time, the letter affirms that Musialowski\\n“did not err in her reporting or testimony regarding [the pantyhose match].”\\nWe think it sufficient to dispose of this claim to say this: Even if proven true,\\nwe do not think the claim provides clear and convincing evidence that no\\nreasonable jury would find Swearingen guilty. In other words, even if\\nMusialowski’s testimony were revised from “the litgature and the pantyhose\\nwere a unique match to the exclusion of all others,” to “the litgature and the\\npantyhose were once joined,” we see no possibility that this would make any\\ndifference to Swearingen’s guilt.\\n Finally, the Brady claim turns on Musialowski’s allegedly undisclosed\\nnotes. The notes document that, at the initial stages of her examination,\\nMusialowski could not say the ligature and the pantyhose were a “physical\\nmatch,” but as her examination progressed, she was able to determine that\\nthey were indeed a “unique physical match.” Swearingen claims this is\\nevidence that his attorneys could have used to impeach Musialowski’s key\\nconclusion linking him to the murder weapon. We conclude this claim fails both\\nprongs of § 2244(b)(2)(B).\\n With respect to the due diligence prong, § 2244(b)(2)(B)(i), Swearingen’s\\nattorneys were obviously aware at trial of the precise nature of Musialowski’s\\n 9\\n\\f Case: 19-20565 Document: 00515080515 Page: 10 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nexamination of the pantyhose, which is reflected in the allegedly undisclosed\\nnotes. For instance, the statement plausibly helpful to Swearingen in the notes\\nis the notation that Musialowski, having initially observed the ligature and\\npantyhose under glass plates, observed “no physical match between ligature\\nand pantyhose.” But this phase of the investigation, and the difficulties\\nMusialowski faced, were discussed in detail at trial. Musialowski testified that\\nshe attempted to observe the ligature and pantyhose on glass plates, but\\n“because the ends were rolling, it was difficult for [her] to keep the ends down\\nto compare.” So, she used other methods, including pinning the fabric to a foam\\nboard, which ultimately led to her conclusion of a match. The notes are\\nconsistent with Musialowski’s testimony at trial, and thus do not constitute\\nnew evidence previously undiscoverable by due diligence. Swearingen’s claim\\nthus fails under § 2244(b)(2)(B)(i).\\n Alternatively, Swearingen’s claim about the notes fails the second prong\\nof § 2244(b)(2)(B). As already discussed, Musialowski’s notes were basically\\ncumulative of her trial testimony about her developing examination of the\\npantyhose and ligature. Introducing the notes would simply have\\nestablished—as her trial testimony did—that Musialowski did not initially see\\na match when analyzing the items on glass plates, but did see one upon further\\ninvestigation. These facts were already present in her trial testimony and\\nwould have been, at most, marginally enhanced by the notes. Thus, the notes,\\neven if introduced and credited by the jury, would not have led to a trial in\\nwhich “no reasonable factfinder would have found the applicant guilty of the\\nunderlying offense.” 28 U.S.C. § 2244(b)(2)(B).\\n That conclusion is particularly compelling given that § 2244(b) requires\\nus to assess the claim “in light of the evidence as a whole.” § 2244(b)(2)(B)(ii).\\nWe have before alluded to the “mountain of inculpatory evidence,” discussed in\\ndetail by numerous courts, state and federal, that seals Swearingen’s guilt for\\n 10\\n\\f Case: 19-20565 Document: 00515080515 Page: 11 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\nTrotter’s murder. Swearingen, 303 S.W.3d at 736. We end by quoting a\\nrelatively succinct summary of that evidence from a federal district court,\\nwhich underscores why Swearingen’s “new” claims in this latest phase could\\nnot possibly have made any difference to the outcome of his trial:\\n To reiterate, Swearingen was the last person that Ms. Trotter was\\n seen with alive. Ms. Trotter had been in Swearingen’s truck, where\\n he forcibly removed hair follicles. Swearingen’s histological evidence\\n does not explain why she was in his house that day, why it was later\\n found to be in disarray, and why he falsely claimed that there had\\n been a burglary there. The evidence itself does not explain why\\n papers belonging to Ms. Trotter were found near the house of\\n Swearingen’s parents and her cigarettes were in Swearingen’s\\n house. The new information does not explain why Ms. Trotter was\\n found wearing the same clothes as when she disappeared and why\\n she had a note given to her by a friend on December 8 in her back\\n pocket. The new evidence does not show why cell phone records\\n traced Swearingen to a location near where Ms. Trotter was found.\\n Histology does not explain why half of a pair of pantyhose belonging\\n to Swearingen’s wife was found in Swearingen’s house and the other\\n half around Ms. Trotter's neck. The new evidence does not explain\\n why the same meal Ms. Trotter was last seen eating was found in\\n her stomach. Swearingen lied about his whereabouts, tried to\\n fabricate an alibi, made false police reports, fled from the police,\\n asked friends to lie in his behalf, told others that the police would\\n be after him, and crafted an ultimately inculpatory letter to throw\\n attention away from himself. Swearingen told other inmates, “Fuck,\\n yeah, I did it.”\\n\\nSwearingen, 2009 WL 4433221, at *23 (footnote omitted). 3\\n III.\\n We DENY authorization to file a successive habeas corpus petition. We\\nDENY the motion for stay of execution.\\n\\n\\n\\n 3 The TCCA today dismissed the claims Swearingen raises here as an abuse of the\\nwrit. Ex parte Larry Ray Swearingen, No. WR-53,613-14 (Tex. Crim. App. Aug. 15, 2019).\\nBecause we deny Swearingen’s application on other grounds, we need not decide whether his\\nclaims are procedurally defaulted as well. See In re Raby, 925 F.3d at 755 n.7.\\n 11\\n\\fCase: 19-20565 Document: 00515080515 Page: 12 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\n APPENDIX\\n\\n\\n\\n\\n 12\\n\\fCase: 19-20565 Document: 00515080515 Page: 13 Date Filed: 08/16/2019\\n\\n\\n\\n No. 19-20565\\n APPENDIX\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3678,"cells":{"id":{"kind":"number","value":4649421,"string":"4,649,421"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Rogelio Flores-Abarca v. William Barr, U. S. Atty"},"decision_date":{"kind":"string","value":"2019-08-19"},"docket_number":{"kind":"string","value":"17-60236"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"STEPHEN A. HIGGINSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-60236 Document: 00515081008 Page: 1 Date Filed: 08/19/2019\\n\\n\\n\\n\\n REVISED August 19, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 17-60236\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\nROGELIO FLORES-ABARCA, August 16, 2019\\n\\n Petitioner Lyle W. Cayce\\n Clerk\\nv.\\n\\nWILLIAM P. BARR, U. S. ATTORNEY GENERAL,\\n\\n Respondent\\n\\n\\n\\n\\n Petitions for Review of an Order of the\\n Board of Immigration Appeals\\n\\n\\nBefore DAVIS, HIGGINSON, and WILLETT, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n Rogelio Flores Abarca seeks review of a Board of Immigration Appeals\\n(BIA) decision holding that he is statutorily ineligible for cancellation of\\nremoval because of a 2004 firearm transportation conviction. We first conclude\\nthat Flores Abarca failed to exhaust his challenge to the immigration court’s\\njurisdiction based on alleged defects in his Notice to Appear. On the merits, we\\nhold that the Oklahoma misdemeanor of transporting a loaded firearm in a\\nmotor vehicle is not one of the firearms offenses listed under 8 U.S.C.\\n§ 1227(a)(2)(C). Accordingly, this conviction does not disqualify Flores Abarca\\n\\f Case: 17-60236 Document: 00515081008 Page: 2 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nfrom seeking cancellation of removal. We grant the petition for review, vacate\\nthe BIA’s order, and remand for further proceedings.\\n I.\\n Flores Abarca is a native and citizen of Mexico. He entered the United\\nStates unlawfully in 1988, when he was five years old. He currently lives in\\nOklahoma and has four U.S. citizen children. In January 2004, Flores Abarca\\npleaded guilty to the Oklahoma misdemeanor offense of transporting a loaded\\nfirearm in a motor vehicle. See OKLA. STAT. tit. 21 § 1289.13. In May 2015,\\nthe Department of Homeland Security initiated removal proceedings against\\nFlores Abarca, alleging that he was present in the United States without\\nhaving been admitted or paroled. The Notice to Appear was personally served\\non Flores Abarca and instructed him to appear before an immigration judge in\\nDallas at a date and time to be set. Flores Abarca later received a notice of\\nhearing with a specific date and time, and he personally appeared in Dallas\\nimmigration court on October 19, 2015. At this hearing, Flores Abarca\\nacknowledged receipt of the Notice to Appear, conceded his removability, and\\nstated that he wished to seek cancellation of removal.\\n Cancellation of removal is a form of relief available to certain otherwise\\nremovable aliens. See 8 U.S.C. § 1229b. To be eligible for this relief, a\\nnonpermanent resident such as Flores Abarca must (1) have been continuously\\nphysically present in the United States for at least 10 years; (2) demonstrate\\ngood moral character during this period; (3) not be convicted of an offense\\nunder 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3); and (4) “establish[]\\nthat removal would result in exceptional and extremely unusual hardship to\\nthe alien’s spouse, parent, or child, who is a citizen of the United States or an\\nalien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1).\\n Flores Abarca requested cancellation of removal based on hardship to his\\nfour young children and his ailing lawful permanent resident parents. The\\n 2\\n\\f Case: 17-60236 Document: 00515081008 Page: 3 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nimmigration judge asked for the government’s views regarding Flores Abarca’s\\neligibility in light of his firearm transportation conviction. The government\\nstated that it believed Flores Abarca was eligible for cancellation of removal,\\nand that it did not believe that his firearm transportation conviction fell under\\nthe statute’s firearms provision. The immigration judge nonetheless expressed\\nconcern about this conviction and ordered further briefing on the issue. In its\\nbrief, the government revised its original position and argued that Flores\\nAbarca is ineligible for cancellation of removal because of his firearm\\ntransportation conviction.\\n\\n After considering the parties’ briefs, the immigration judge held that\\nFlores Abarca’s conviction for transporting a loaded firearm is a firearms\\noffense described under 8 U.S.C. § 1227(a)(2)(C) and renders him ineligible for\\ncancellation of removal as a matter of law. Flores Abarca appealed his order of\\nremoval to the BIA. On March 3, 2017, the BIA affirmed the immigration court\\nin a published and precedential opinion. See Matter of Flores-Abarca, 26 I & N\\nDec. 922 (B.I.A. 2017). Flores Abarca timely moved for reconsideration. While\\nhis motion for reconsideration was pending, Flores Abarca filed a motion to\\nremand to the immigration court to permit him to apply for adjustment of\\nstatus. The BIA denied both motions. Flores Abarca now petitions for review\\nof the BIA’s decisions.\\n II.\\n For the first time on appeal, Flores Abarca seeks to challenge alleged\\ndefects in his Notice to Appear (NTA). This court generally lacks jurisdiction\\nto consider issues that were not first presented to the BIA. See Omari v. Holder,\\n562 F.3d 314, 318–19 (5th Cir. 2009); see also 8 U.S.C. § 1252(d) (“A court may\\nreview a final order of removal only if – (1) the alien has exhausted all\\nadministrative remedies available to the alien as of right”). Flores Abarca\\nnonetheless contends that he can raise this issue at any time because defects\\n 3\\n\\f Case: 17-60236 Document: 00515081008 Page: 4 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nin the NTA undermine the immigration court’s subject matter jurisdiction.\\nThis argument is foreclosed by our precedent. See Pierre-Paul v. Barr, 930 F.3d\\n684, 693 (5th Cir. 2019) (holding that 8 C.F.R. § 1003.14 is a non-jurisdictional\\nclaim processing rule, defects in which are waivable). Because Flores Abarca\\ndid not properly exhaust this issue, we lack jurisdiction to consider it. We\\ntherefore turn to the merits.\\n III.\\n The BIA held that Flores Abarca is ineligible for cancellation of removal\\nas a matter of law because “the crime of transporting a loaded firearm under\\nOklahoma law is categorically a firearms offense under” 8 U.S.C.\\n§ 1227(a)(2)(C). Flores-Abarca, 26 I & N Dec. at 924. Because the BIA reached\\nan independent legal conclusion on this question, “our review is confined to the\\nBIA’s analysis and reasoning.” Enrique-Gutierrez v. Holder, 612 F.3d 400, 407\\n(5th Cir. 2010). With limited exceptions, we may “only affirm the BIA on the\\nbasis of its stated rationale for ordering an alien removed from the United\\nStates.” Id. The sole issue before us is therefore the purely legal question of\\nwhether Flores Abarca’s Oklahoma firearm transportation conviction is\\ncategorically a disqualifying firearms offense under § 1227(a)(2)(C). We have\\njurisdiction to consider this legal issue. See 8 U.S.C. § 1252(a)(2)(D).\\n A.\\n We first review the relevant statutory framework. A nonpermanent\\nresident does not qualify for cancellation of removal if he has “been convicted\\nof an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)” of Title 8 of the\\nU.S. Code. 8 U.S.C. § 1229b(b)(1)(C). The specific provision at issue in this case\\nis § 1227(a)(2)(C), which renders deportable “[a]ny alien who at any time after\\nadmission is convicted” of certain firearms offenses. As a threshold matter,\\n\\n\\n\\n\\n 4\\n\\f Case: 17-60236 Document: 00515081008 Page: 5 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nFlores Abarca contends that § 1227(a)(2)(C) does not apply to him because he\\nwas never admitted to the United States. 1\\n This argument is foreclosed by our precedent. Flores Abarca was not\\ncharged with being removable under § 1227(a)(2)(C). This provision is relevant\\nto this case only because it is cross-referenced in the cancellation of removal\\nstatute. See § 1229b(b)(1)(C). We have held that this statutory cross-reference\\nsimply “identif[ies] the kinds of offenses that will make an alien ineligible for\\ncancellation of removal.” Nino v. Holder, 690 F.3d 691, 697 (5th Cir. 2012)\\n(emphasis added). “For purposes of that ineligibility, it does not matter when\\nthe offense occurred in relation to the alien’s admission.” Id. at 697–98; see also\\nAleman v. Holder, 541 F. App’x 457, 459 (5th Cir. 2013) (“Nino v. Holder held\\nthe plain language of § 1229b(b)(1)(C) unambiguously refers to the elements of\\nthe offenses set forth in the three statutes and does not refer to any aspects of\\nimmigration law.”).\\n Flores Abarca is therefore ineligible for cancellation of removal if he was\\nconvicted of an offense listed in § 1227(a)(2)(C), regardless of whether he had\\nbeen admitted to the United States at the time of conviction. This provision\\nreads in full:\\n (C) Certain firearm offenses\\n\\n Any alien who at any time after admission is convicted under any\\n law of purchasing, selling, offering for sale, exchanging, using,\\n owning, possessing, or carrying, or of attempting or conspiring to\\n purchase, sell, offer for sale, exchange, use, own, possess, or carry,\\n any weapon, part, or accessory which is a firearm or destructive\\n device (as defined in section 921(a) of Title 18) in violation of any\\n law is deportable.\\n\\n\\n 1 We note that Flores Abarca failed to properly exhaust this issue before the BIA.\\nSee Omari, 562 F.3d at 319. Yet, as the government recognizes, exhaustion is not required\\nwhen the BIA has no power to grant the requested relief because of binding circuit precedent.\\nSee Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir. 2007). That is the case here.\\n 5\\n\\f Case: 17-60236 Document: 00515081008 Page: 6 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n8 U.S.C. § 1227(a)(2)(C).\\n The list of offenses in the statute does not include a conviction for\\n“transporting” a firearm in violation of any law.\\n The BIA reasoned, however, that “[a] plain reading of the statute makes\\n‘clear that Congress intended [it] to embrace the entire panoply of firearms\\noffenses.’” Flores-Abarca, 26 I & N Dec. at 923 (quoting Valerio-Ochoa v. INS,\\n241 F.3d 1092, 1095 (9th Cir. 2001)). The BIA further held that Flores Abarca\\n“necessarily had constructive ‘possession’ of the firearm for purposes of”\\n§ 1227(a)(2)(C) when he violated the Oklahoma firearm transportation statute.\\nId. Finally, the BIA opined that “it would be illogical to hold that unlawful\\npossession of a loaded firearm would fall within the scope of [§ 1227(a)(2)(C)]\\nbut that unlawfully transporting the same weapon would not.” Id. at 924. We\\naddress each rationale in turn.\\n B.\\n The government urges us to hold that a plain reading of the statute\\ndemonstrates that Congress intended § 1227(a)(2)(C) “to apply broadly to any\\ntype of firearm offense.” Alternatively, the government asks us to accord\\nChevron deference to the BIA’s view that the statute encompasses “firearms\\noffenses of any type.” Although this expansive reading would certainly simplify\\nour analysis, we decline the government’s invitation to rewrite the statutory\\ntext.\\n We review the BIA’s “legal conclusions de novo unless a conclusion\\nembodies the Board’s interpretation of an ambiguous provision of a statute\\nthat it administers.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). In\\nthe latter situation, a precedential decision by the BIA “is entitled to the\\ndeference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense\\nCouncil, 467 U.S. 837 (1984).” Ali v. Lynch, 814 F.3d 306, 309 (5th Cir. 2016)\\n(cleaned up). “If Congress has explicitly left a gap for the agency to fill, there\\n 6\\n\\f Case: 17-60236 Document: 00515081008 Page: 7 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nis an express delegation of authority to the agency to elucidate a specific\\nprovision of the statute by regulation.” Orellana-Monson v. Holder, 685 F.3d\\n511, 517 (5th Cir. 2012) (quoting Chevron, 467 U.S. at 843–44). Before\\naccording an agency Chevron deference, however, the “court must determine\\nfirst whether Congress has directly spoken to the question at issue.” Id. “If so,\\nthe court, as well as the agency, must give effect to the unambiguously\\nexpressed intent of Congress.” Id.\\n The BIA’s decision in this case is published and precedential, and thus\\neligible for Chevron deference. See Flores-Abarca, 26 I & N Dec. 922. But\\nneither the BIA nor the government on appeal identify any ambiguity in the\\nfirearms offense provision. The BIA instead relied on its “plain reading of the\\nstatute.” Id. at 923. “Chevron deference must be reflective, not reflexive.”\\nForrest Gen. Hosp. v. Azar, 926 F.3d 221, 228 (5th Cir. 2019). Absent statutory\\nambiguity, the government may not invoke Chevron to shield agency reasoning\\nfrom judicial scrutiny. Id.; Orellana-Monson, 685 F.3d at 517.\\n The text of § 1227(a)(2)(C) is neither vague nor unclear. Rather, it\\nunambiguously renders a large number of firearms convictions grounds for\\ndeportation. The provision applies to any alien, including legal permanent\\nresidents, convicted of “purchasing, selling, offering for sale, exchanging,\\nusing, owning, possessing, or carrying . . . a firearm or destructive device,” or\\n“of attempting or conspiring” to commit any of these offenses. 8 U.S.C.\\n§ 1227(a)(2)(C). Contrary to the government’s position, however, the statute\\ndoes not state that “any type of firearm offense” is a basis for deportation. Nor\\ndoes the statute on its face reach “the entire panoply of firearms offenses.”\\nFlores-Abarca, 26 I & N Dec. at 923 (quotation omitted). If that were Congress’s\\nintent, it could easily have said so. The same statute, for example, renders\\ndeportable any alien convicted of violating “any law or regulation of a State,\\nthe United States, or a foreign country relating to a controlled substance (as\\n 7\\n\\f Case: 17-60236 Document: 00515081008 Page: 8 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\ndefined in section 802 of Title 21),” with a narrow exception for personal\\nmarijuana possession. 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).\\n Congress could have used the same language to render deportable any\\nalien convicted of violating any law “relating to” a firearm. Instead, Congress\\nchose to enumerate a list of offenses. See Dep’t of Homeland Security v.\\nMacLean, 135 S. Ct. 913, 919 (2015) (explaining that “Congress generally acts\\nintentionally when it uses particular language in one section of a statute but\\nomits it in another”). Reflecting that choice, the provision is titled “Certain\\nfirearm offenses.” See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)\\n(explaining that while “headings are not commanding, they supply cues” as to\\nthe intended scope of a statute).\\n Notably, despite the expansive language of the controlled substance\\nprovision, the Supreme Court has declined to hold that Congress intended to\\ndeport every alien convicted of a drug offense. In Mellouli v. Lynch, the\\ngovernment argued that “aliens who commit drug crimes in States whose drug\\nschedules substantially overlap the federal schedules are removable, for state\\nstatutes that criminalize hundreds of federally controlled drugs and a handful\\nof similar substances, are laws relating to federally controlled substances.” 135\\nS. Ct. 1980, 1989 (2015) (quotation omitted). The Court rejected this\\nconstruction of § 1227(a)(2)(B)(i), explaining that “[t]his sweeping\\ninterpretation departs so sharply from the statute’s text and history that it\\ncannot be considered a permissible reading.” Id. at 1990. The Court also\\nrefused to adopt the BIA’s view that the statute covers all drug paraphernalia\\nconvictions on the grounds that drug paraphernalia statutes relate to “the drug\\ntrade in general.” Id. at 1988–89. The Court instead held that, “to trigger\\nremoval under § 1227(a)(2)(B)(i), the Government must connect an element of\\nthe alien’s conviction to a drug ‘defined in [§ 802].’” Id. at 1991.\\n\\n\\n 8\\n\\f Case: 17-60236 Document: 00515081008 Page: 9 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n The same logic applies here. A firearm conviction cannot trigger\\ndeportation or ineligibility for cancellation of removal under § 1227(a)(2)(C)\\nunless it fits within one of the statutorily enumerated offenses. This\\nconstruction is consistent with our prior applications of this statute, as well as\\nthat of other circuits. See Segovia-Rivas v. Lynch, 643 F. App’x 367, 369 (5th\\nCir. 2016) (holding that a conviction for “Attempted Deadly Conduct—\\nDischarge of a Firearm” is categorically an offense covered by § 1227(a)(2)(C)\\nbecause “[d]ischarging a firearm clearly involves use of a firearm”) (emphasis\\nadded); Aybar-Alejo v. INS, 230 F.3d 487, 488–89 (1st Cir. 2000) (explaining\\nthat a conviction for firearm possession under Rhode Island law is not broader\\nthan possession under federal law); Lopez-Amaro v. INS, 25 F.3d 986, 989–90\\n(11th Cir. 1994) (holding that “first degree murder with a pistol” qualifies as\\n“using a firearm in violation of any law”).\\n The government contends that several other circuits have interpreted\\n§ 1227(a)(2)(C) more expansively to “embrace the entire panoply of firearms\\noffenses.” Valerio-Ochoa, 241 F.3d at 1095; see also Kuhali v. Reno, 266 F.3d\\n93, 103 (2d Cir. 2001); Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999). The cases\\ncited do include some broad language regarding the scope of the firearms\\nprovision. But our sister circuits took care to locate the petitioner’s particular\\nconviction within one of the enumerated offenses. See Valerio-Ochoa, 241 F.3d\\nat 1095–96 (explaining that a conviction for “willfully discharg[ing] a firearm”\\nclearly “qualifies as ‘using’ a firearm under 8 U.S.C. § 1227(a)(2)(C)”); Kuhali,\\n266 F.3d at 105 (finding that exporting firearms without a license involves\\n“possessing” a firearm because “the power to send or take a commodity out of\\nthe country necessarily implies—because of the exercise of dominion or\\ncontrol—at least constructive possession”); Hall, 167 F.3d at 856 (holding that\\na conviction for making false statements in connection with the acquisition of\\na firearm was a conviction for “purchasing or attempting to purchase” a firearm\\n 9\\n\\f Case: 17-60236 Document: 00515081008 Page: 10 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nunder § 1227(a)(2)(C) because the petitioner “participated in and enabled an\\nunlawful purchase of a firearm”). These cases do not stand for the proposition\\nthat either the BIA or the courts are free to disregard the statute’s list of\\nenumerated offenses.\\n Despite its own broad language, the BIA similarly went on to consider\\nwhether Flores Abarca’s firearm transportation offense is a conviction for\\n“possessing” a firearm under § 1227(a)(2)(C). See Flores-Abarca, 26 I & N Dec.\\nat 923. We now review that determination.\\n C.\\n Flores Abarca is ineligible for cancellation of removal if he was “convicted\\nunder any law of . . . possessing . . . a firearm or destructive device.” 8 U.S.C.\\n§ 1227(a)(2)(C). The BIA held that Flores Abarca “necessarily had constructive\\n‘possession’ of the firearm” when he “knowingly and willfully transported” it in\\nhis vehicle, and “conclude[d] that the crime of transporting a loaded firearm\\nunder Oklahoma law is categorically a firearms offense under the Act.” Flores-\\nAbarca, 26 I&N Dec. at 923–24. Our analysis of federal and Oklahoma law\\ncompels a different conclusion.\\n Like the BIA, we must analyze Flores Abarca’s conviction under the\\ncategorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 192 (2013);\\nSegovia-Rivas, 643 F. App’x at 369. “Because Congress predicated deportation\\non convictions, not conduct, the approach looks to the statutory definition of\\nthe offense of conviction, not to the particulars of an alien’s behavior.” Mellouli,\\n135 S. Ct. at 1986 (quotation omitted). “[A] state offense is a categorical match\\nwith a generic federal offense only if a conviction of the state offense\\nnecessarily involved facts equating to the generic federal offense.” Moncrieffe,\\n569 U.S. at 190 (cleaned up). “[W]e are to look to the conviction itself as our\\nstarting place, not to what might have or could have been charged.” Carachuri-\\nRosendo v. Holder, 560 U.S. 563, 576 (2010). In the context of a guilty plea, a\\n 10\\n\\f Case: 17-60236 Document: 00515081008 Page: 11 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nconviction is a categorical match “only if the defendant ‘necessarily admitted\\n[the] elements of the generic offense.’” Descamps v. United States, 570 U.S. 254,\\n262 (2013) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).\\n Because we find that § 1227(a)(2)(C) “is unambiguous according to its\\nplain language with respect to the question presented,” we review the BIA’s\\nlegal conclusions de novo. Miresles-Zuniga v. Holder, 743 F.3d 110, 112 (5th\\nCir. 2014). We also review de novo the BIA’s interpretation of Flores Abarca’s\\nOklahoma offense, as “[d]etermining a particular federal or state crime’s\\nelements lies beyond the scope of the BIA’s delegated power or accumulated\\nexpertise.” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002); see also\\nSarmientos v. Holder, 742 F.3d 624, 627 (5th Cir. 2014) (“[N]o deference is\\nafforded in reviewing the BIA’s interpretation of state criminal law.”).\\n We first outline the elements of the generic federal offense of unlawful\\nfirearm possession. Under federal law, “possession” includes constructive\\npossession. See Henderson v. United States, 135 S. Ct. 1780, 1784 (2015); see\\nalso Aybar-Alejo, 230 F.3d at 488–89 (collecting cases). “Actual possession\\nexists when a person has direct physical control over a thing,” whereas\\n“[c]onstructive possession is established when a person, though lacking such\\nphysical custody, still has the power and intent to exercise control over the\\nobject.” Henderson, 135 S. Ct. at 1784. Yet mere possession of a firearm is not\\na criminal offense. 2 See District of Columbia v. Heller, 554 U.S. 570, 636 (2008).\\n“Assuming compliance with ordinary licensing requirements, the possession of\\na gun can be entirely innocent.” Rehaif v. United States, 139 S. Ct. 2191, 2197\\n(2019). The plain meaning of “possessing . . . a firearm . . . in violation of any\\n\\n\\n\\n\\n 2 Although Congress has restricted the rights of unlawfully present aliens to\\npossess firearms, the offenses listed in § 1227(a)(2)(C) apply to any alien, including legal\\npermanent residents. See, e.g., Valerio-Ochoa, 241 F.3d at 1094.\\n 11\\n\\f Case: 17-60236 Document: 00515081008 Page: 12 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nlaw” under § 1227(a)(2)(C) therefore requires that the possession be in some\\nrespect unlawful.\\n The parties agree that the elements of Flores Abarca’s Oklahoma offense\\nare: (1) knowingly; (2) willfully; (3) transporting; (4) a specified firearm; (5)\\nthat is loaded; (6) in the interior/(locked exterior compartment)/trunk; (7) of a\\nmotor vehicle; (8) on a public highway or roadway. See Okla. Unif. Jury Instr.\\nCR 6-37A; see also Flores-Abarca, 26 I & N Dec. at 923. These elements do not\\ninclude possession, much less unlawful possession. 3 On its face, the statute is\\ntherefore not a categorical match to the generic federal offense of unlawful\\nfirearm possession. See Moncrieffe, 569 U.S. at 190.\\n To resist this conclusion, the government argues that Flores Abarca’s act\\nof transporting a loaded firearm necessarily encompassed the possession or\\nconstructive possession of a firearm. The parties have not briefed the issue of\\nwhether an element of possession is sufficient to transform a conviction for a\\ndifferent firearms offense into a conviction for possessing a firearm within the\\nmeaning of § 1227(a)(2)(C). We have some doubts about this assumption. 4 Even\\naccepting the government’s framing of the issue, however, it is not the case\\nthat the Oklahoma offense of transporting a loaded firearm requires that the\\ndefendant actually or constructively possess a firearm.\\n\\n\\n\\n\\n 3 Oklahoma law recognizes separate offenses of unlawful firearm possession.\\nSee, e.g., OKLA. STAT. tit. 21 § 1280.1 (possession of a firearm on school property); § 1283\\n(possession of a firearm by a convicted felon). A conviction for one of these offenses does\\nrequire proof of possession. See Okla. Unif. Jury Instr. CR 6-37 (outlining the elements of\\n“unlawful possession of a firearm” as (1) knowing; (2) willful; (3) possession of/having under\\none’s immediate control; (4) a specified firearm; and (5) the specific ground for unlawfulness).\\n 4 We note that construing a conviction for “possessing” a firearm under\\n§ 1227(a)(2)(C) to include firearm convictions involving lawful possession plus an illegal act\\nmight render superfluous many of the other enumerated offenses, including “using,” and\\n“carrying” a firearm. See Bailey v. United States, 516 U.S. 137, 146 (1995) (adopting a limited\\nreading of “use” of a firearm to avoid creating redundancy with the term “carry”).\\n 12\\n\\f Case: 17-60236 Document: 00515081008 Page: 13 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n The term “transport” does not necessarily imply possession. The driver\\nof a vehicle can transport passengers and their possessions without having the\\n“power and intent to exercise control over” every object in the vehicle.\\nHenderson, 135 S. Ct. at 1784. As we have been clear, “dominion over the\\nvehicle . . . alone cannot establish constructive possession of a weapon found in\\nthe vehicle, particularly in the face of evidence that strongly suggests that\\nsomebody else exercised dominion and control over the weapon.” United States\\nv. Wright, 24 F.3d 732, 735 (5th Cir. 1994); see also United States v. Melancon,\\n662 F.3d 708, 713 (5th Cir. 2011) (“Where two people jointly occupy a space,\\ndominion over the space is not enough by itself to establish constructive\\npossession.”). Although knowledge of a firearm’s presence may be evidence of\\npossession, knowing transportation does not conclusively establish\\nconstructive possession as a matter of law. See Wright, 24 F.3d at 735\\n(explaining that “whether constructive possession exists is not a scientific\\ninquiry” and requires “a common sense, fact-specific approach”); United States\\nv. Crain, 33 F.3d 480, 486–87 (5th Cir. 1994) (finding insufficient evidence that\\ndefendant driver exercised constructive possession over drugs found in the\\nvehicle).\\n Oklahoma’s criminal prohibition against transporting loaded firearms in\\nvehicles clearly extends to firearms possessed by passengers. At the time of\\nFlores Abarca’s offense, the relevant statute read as follows:\\n Except as otherwise provided by . . . another provision of law\\n of this state, it shall be unlawful to transport a loaded pistol, rifle,\\n or shotgun in any landborne motor vehicle over a public highway\\n or roadway. However, a rifle or shotgun may be transported when\\n clip or magazine loaded and not chamber loaded when transported\\n in an exterior locked compartment of the vehicle or trunk of the\\n vehicle.\\n\\n Any person convicted of a violation of this section shall be\\n punished as provided in Section 1289.15 of this title.\\n 13\\n\\f Case: 17-60236 Document: 00515081008 Page: 14 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n\\n\\n Any person who is the operator of a vehicle or is a passenger\\n in any vehicle wherein another person who is licensed pursuant to\\n the Oklahoma Self-Defense Act, Sections 1 through 25 of this act,\\n to carry a concealed handgun and is carrying a concealed handgun\\n or has concealed the handgun in such vehicle, shall not be deemed\\n in violation of the provisions of this section provided the licensee\\n is in or near the vehicle.\\n\\nOKLA. STAT. tit. 21 § 1289.13 (2003).\\n The statute’s final paragraph protects a driver from liability if his\\npassenger has a concealed carry license. But a driver would have no such safe\\nharbor if he knowingly gave a ride to an armed passenger who lacked a\\nconcealed carry license. Even in cases where a defendant does have possession\\nof a firearm as a factual matter, Oklahoma is never required to prove\\npossession or constructive possession to obtain a conviction under this statute.\\nFlores Abarca thus did not “necessarily admit[] the elements of the generic\\noffense” of unlawful firearm possession by pleading guilty to this Oklahoma\\ntransportation offense. Descamps, 570 U.S. at 262 (quotation omitted).\\n The BIA’s contrary conclusion relied on a statement in United States v.\\nBass, that “virtually all transportations, whether interstate or intrastate,\\ninvolve an accompanying possession or receipt.” 404 U.S. 336, 340 (1971);\\nFlores-Abarca, 26 I & N Dec. at 924. This factual observation regarding the\\nfrequent overlap between transportation and possession offenses does not alter\\nour analysis. The question presented in Bass was whether the federal\\nprohibition on felons possessing, receiving, or transporting firearms requires\\nproof of a connection to interstate commerce in every case. 404 U.S. at 339. The\\nCourt held that “the phrase ‘in commerce or affecting commerce’ is part of all\\nthree offenses” rather than modifying only the transport offense. Id. at 347.\\nThe Supreme Court did not hold that the prohibition against felons\\ntransporting a firearm is redundant of the prohibition against possession, nor\\n 14\\n\\f Case: 17-60236 Document: 00515081008 Page: 15 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nthat all federal transportation offenses require proof of possession. 5 Such\\nholdings would have been consequential for federal criminal law, increasing\\nthe government’s burden of proof in transportation prosecutions and\\nintroducing redundancy in the federal criminal code. See, e.g., 18 U.S.C.\\n§ 922(g), (h)(1), (k). But that was not the issue presented in Bass, and it is not\\nthe issue the Court decided.\\n Importantly, the Supreme Court’s later decision in Muscarello v. United\\nStates, 524 U.S. 125 (1998), makes clear that transportation offenses remain\\ndistinct from possession offenses. The Court in Muscarello held that the phrase\\n“carries a firearm” in 18 U.S.C. § 924(c)(1) “applies to a person who knowingly\\npossesses and conveys firearms in a vehicle, including in the locked glove\\ncompartment or trunk of a car, which the person accompanies.” Id. at 126–27.\\nIn a dissenting opinion, Justice Ginsburg argued that this definition better\\ndescribes the term “transport” than the term “carry.” Id. at 146–48. 6 She noted\\nthat other federal statutes use the term “transport” rather than “carry” to\\n“describ[e] when and how a person may travel in a vehicle that contains his\\nfirearms.” Id. at 146–47 (citing 18 U.S.C §§ 925(a)(2)(B) and 926A). A majority\\nof the Court disagreed, explaining that its “definition does not equate ‘carry’\\nand ‘transport.’” Id. at 134. “‘Carry’ implies personal agency and some degree\\n\\n\\n\\n 5 We were not aided by the government’s briefing on this point, which incorrectly\\nattributed language from Malilia v. Holder, 632 F.3d 598, 604 (9th Cir. 2011) to Bass itself.\\nThis inaccurate citation was inquired into, but not corrected, at oral argument. We should\\nnot need to remind the government that, although we are bound by the precedent of the\\nSupreme Court, we are not bound by another circuit’s interpretation of that precedent. In\\nany event, we do not find support in Bass for the proposition that “establishing that a firearm\\ntraveled interstate necessarily requires some element of possession.” Malilia, 632 F.3d at\\n604. We similarly part ways with the Second Circuit’s interpretation of Bass to imply an\\nelement of possession in transportation offenses. See Kuhali, 266 F.3d at 105.\\n 6 The Eighth Circuit expressed a similar view in a case predating Muscarello.\\nSee United States v. Richards, 967 F.2d 1189, 1195 (8th Cir. 1992) (construing “the ordinary\\nmeaning of the term ‘transport’ . . . as involving an element of possession and an element of\\nmovement”).\\n 15\\n\\f Case: 17-60236 Document: 00515081008 Page: 16 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nof possession, whereas ‘transport’ does not have such a limited connotation and,\\nin addition, implies the movement of goods in bulk over great distances.” Id.\\n(emphasis added).\\n This distinction is fully consistent with our construction of the Oklahoma\\nstatute at issue in this case. Although carrying a firearm requires “some degree\\nof possession,” transporting a firearm does not. Id. The government attempts\\nto distinguish Muscarello by arguing that the Supreme Court understood\\n“transport” to refer only to the “movement of goods in bulk,” whereas Flores\\nAbarca’s Oklahoma transportation offense is more akin to “carrying.” Id. This\\nargument is unavailing. The Supreme Court discussed several statutes that\\napply the term “transport” to single firearms. See id. at 134–36; see also 18\\nU.S.C § 924(b) (imposing criminal penalties on someone who “transports . . . a\\nfirearm” with intent to commit a felony). Notably, the statute most central to\\nthe disagreement between the majority and the dissent, 18 U.S.C. § 926A, uses\\nthe term “transport” in precisely the same context as the Oklahoma statute at\\nissue here. See id. (providing that individuals are “entitled to transport a\\nfirearm for any lawful purpose,” so long as “during such transportation the\\nfirearm is unloaded” and not “directly accessible from the passenger\\ncompartment of such transporting vehicle”). The Court specifically addressed\\n§ 926A and reiterated its conclusion that “the word ‘transport’ is broader than\\nthe word ‘carry.’” Muscarello, 524 U.S. at 135. We have no basis to conclude\\nthat the term “transport” has a different meaning under Oklahoma law than\\nunder federal law. 7\\n\\n\\n\\n 7 The government represented at oral argument that its briefing and the BIA’s\\nopinion had relied on Oklahoma caselaw interpreting transportation to require an element\\nof constructive possession. As the government commendably acknowledged in a post-\\nargument letter to the court, this representation was mistaken. The government’s letter\\nbelatedly points us to a decision from the Oklahoma Court of Criminal Appeals, Allen v. State,\\n871 P.2d 79 (Okla. Crim. App. 1994), as support for its position. We emphasize that “[t]he\\n 16\\n\\f Case: 17-60236 Document: 00515081008 Page: 17 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n We acknowledge that our analysis is in tension with the outcome reached\\nby the Eighth Circuit in Awad v. Gonzales, 494 F.3d 723 (8th Cir. 2007). Awad,\\na legal permanent resident and “a sport hunter lawfully hunting,” was cited\\nfor transporting a loaded hunting rifle in his vehicle. Id. at 724. The BIA held\\nthat this misdemeanor game and fish law violation rendered Awad deportable\\nunder § 1227(a)(2)(C). Id. at 724–25. Awad petitioned for review, arguing that\\nhis hunting rifle fell within an exception to the federal definition of a firearm.\\nId. at 725. The court rejected this argument and affirmed. Id. at 726–27. The\\nissue of whether § 1227(a)(2)(C) encompasses transportation offenses was\\napparently not raised before the Eighth Circuit, and the court did not squarely\\naddress it. Instead, the court deferred to the BIA without examining the\\nspecific offenses enumerated in § 1227(a)(2)(C) or identifying any ambiguity in\\nthe statutory language. Id. at 725. We therefore do not find Awad persuasive\\nas to the question presented in this appeal.\\n In sum, we hold that Flores Abarca’s misdemeanor conviction for\\nunlawfully transporting a loaded firearm in a motor vehicle does not include\\nunlawful possession as a necessary element and does not categorically match\\nan offense listed under 8 U.S.C. § 1227(a)(2)(C).\\n\\n\\n\\n\\nproper time to closely examine the record and develop legal defenses is before the completion\\nof briefing,” not after oral argument. United States v. Arellano-Banuelos, 912 F.3d 862, 865\\nn.2 (5th Cir. 2019). Even if the government’s new argument were properly before us, it would\\nnot affect our conclusion. The defendant in Allen was charged with “carrying a loaded\\nfirearm.” 871 P.2d at 102. The Oklahoma Court of Criminal Appeals reversed this conviction,\\nexplaining that simple possession of a firearm is not a crime. Id. at 103. To constitute a crime,\\nthe “carrying” must be unlawful in some additional way, such as “carrying a loaded firearm\\nin a vehicle” or “carrying any firearm after conviction of a felony.” Id. The Oklahoma court\\ndid not, however, hold that “carrying” a firearm is the only means to commit the offense of\\nunlawful transportation of a firearm in a motor vehicle. Rather, its decision is consistent with\\nthe proposition that “‘transport’ is a broader category that includes ‘carry’ but also\\nencompasses other activity.” Muscarello, 524 U.S. at 135.\\n 17\\n\\f Case: 17-60236 Document: 00515081008 Page: 18 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n D.\\n Finally, we address the BIA’s view that omitting firearm transportation\\noffenses from the scope of § 1227(a)(2)(C) is “illogical” and inconsistent with\\nlegislative history. Flores-Abarca, 26 I&N Dec. at 924. The BIA observes that,\\nin the original version of the statute, “only the crimes of ‘possessing or carrying’\\na firearm were a basis for deportation.” Id. “Subsequent legislation expanded\\nthe deportable offenses to the current extensive list of crimes, as well as\\nattempts and conspiracies to commit them.” Id. This history, however, can be\\nread in multiple ways. On the one hand, Congress may have wished to expand\\nthe reach of § 1227(a)(2)(C) to cover all firearms offenses, and simply neglected\\nto include the term “transporting” when amending the statute. Such an\\noversight would be somewhat surprising, as federal criminal law extensively\\nregulates the transportation of firearms. See, e.g., 18 U.S.C. § 922(a)(1)–(5), (i),\\n(n), § 924(b). On the other hand, Congress may have made a deliberate choice\\nto add some firearms offenses but not others. Regardless, “[w]e cannot replace\\nthe actual text with speculation as to Congress’ intent.” Magwood v. Patterson,\\n561 U.S. 320, 334 (2010).\\n Nor can we substitute either the BIA’s policy views or our own judgment\\nfor that of Congress. See Rodriguez v. United States, 480 U.S. 522, 525–26\\n(1987). Congress clearly intended to render deportable most aliens convicted of\\ngun crimes, but it chose to effectuate this goal by specifying a list of offenses.\\n“Legislation is, after all, the art of compromise, the limitations expressed in\\nstatutory terms often the price of passage, and no statute yet known pursues\\nits stated purpose at all costs.” Henson v. Santander Consumer USA Inc., 137\\nS. Ct. 1718, 1725 (2017) (cleaned up). We must therefore “presume that a\\nlegislature says in a statute what it means and means in a statute what it says\\nthere.” Connecticut National Bank v. Germain, 503 U.S. 249, 253–54 (1992).\\n\\n\\n 18\\n\\f Case: 17-60236 Document: 00515081008 Page: 19 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n “[W]hen the statute’s language is plain, the sole function of the courts—\\nat least where the disposition required by the text is not absurd—is to enforce\\nit according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters\\nBank, N.A., 530 U.S. 1, 6 (2000) (cleaned up). Here, a plain reading of the\\nstatute produces no absurd results. The BIA maintains that it would be\\n“illogical to hold that unlawful possession of a loaded firearm would fall within\\nthe scope of [§ 1227(a)(2)(C)] but that unlawfully transporting the same\\nweapon would not.” Flores-Abarca, 26 I&N Dec. at 924. We disagree. As\\npreviously emphasized, firearms are not inherently illicit. An individual can\\ncommit a transportation offense even if transporting a legally-owned firearm\\nfrom one lawful location to another, for an entirely lawful purpose. See, e.g.,\\nAwad, 494 F.3d at 724 (noting that Awad was “a sport hunter lawfully hunting”\\nwhen he was cited for transporting a loaded hunting rifle). Moreover, mere\\ntransportation lacks the elements of unlawful possession or use that can make\\nfirearm offenses particularly dangerous. See, e.g., Muscarello, 524 U.S. at 135–\\n36 (noting that Congress “impose[d] a less strict sentencing regime” on firearm\\ntransport offenses under 18 U.S.C. § 924(b) than firearm carrying offenses\\nunder § 924(c)).\\n It is thus rational for Congress to treat unlawful firearm transportation\\ndifferently from unlawful possession. We also note that § 1227(a)(2)(C) is not\\nthe sole removal provision applicable to firearms offenses. Congress has\\nseparately designated certain serious firearm transportation offenses as\\naggravated felonies, including transporting a firearm with the intent to\\ncommit a felony. See 8 U.S.C. § 1101(43)(E)(ii); see also 18 U.S.C. § 922(g)(1)–\\n(5); § 922(n); § 924(b). An alien convicted of one of these offenses is deportable\\nunder § 1227(a)(2)(A)(iii), notwithstanding our construction of § 1227(a)(2)(C).\\nThe statutory scheme as a whole does not create any illogical gaps in\\nimmigration enforcement.\\n 19\\n\\f Case: 17-60236 Document: 00515081008 Page: 20 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n IV.\\n Flores Abarca’s Oklahoma firearm transportation conviction is not an\\noffense under 8 U.S.C. § 1227(a)(2)(C) and does not render him statutorily\\nineligible for cancellation of removal. In light of this holding, we need not reach\\nthe question of whether the BIA abused its discretion in denying Flores\\nAbarca’s motions for reconsideration and remand.\\n We GRANT the petition for review, VACATE the decision of the BIA,\\nand REMAND for further proceedings not inconsistent with this opinion.\\n\\n\\n\\n\\n 20\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426674/\", \"author_raw\": \"STEPHEN A. HIGGINSON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"DAVIS"},"judge2":{"kind":"string","value":"HIGGINSON"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"DAVIS\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4649421/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Rogelio Flores-Abarca v. William Barr, U. S. Atty\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-60236 Document: 00515081008 Page: 1 Date Filed: 08/19/2019\n\n\n\n\n REVISED August 19, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n No. 17-60236\n United States Court of Appeals\n Fifth Circuit\n\n FILED\nROGELIO FLORES-ABARCA, August 16, 2019\n\n Petitioner Lyle W. Cayce\n Clerk\nv.\n\nWILLIAM P. BARR, U. S. ATTORNEY GENERAL,\n\n Respondent\n\n\n\n\n Petitions for Review of an Order of the\n Board of Immigration Appeals\n\n\nBefore DAVIS, HIGGINSON, and WILLETT, Circuit Judges.\nSTEPHEN A. HIGGINSON, Circuit Judge:\n Rogelio Flores Abarca seeks review of a Board of Immigration Appeals\n(BIA) decision holding that he is statutorily ineligible for cancellation of\nremoval because of a 2004 firearm transportation conviction. We first conclude\nthat Flores Abarca failed to exhaust his challenge to the immigration court’s\njurisdiction based on alleged defects in his Notice to Appear. On the merits, we\nhold that the Oklahoma misdemeanor of transporting a loaded firearm in a\nmotor vehicle is not one of the firearms offenses listed under 8 U.S.C.\n§ 1227(a)(2)(C). Accordingly, this conviction does not disqualify Flores Abarca\n\f Case: 17-60236 Document: 00515081008 Page: 2 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\nfrom seeking cancellation of removal. We grant the petition for review, vacate\nthe BIA’s order, and remand for further proceedings.\n I.\n Flores Abarca is a native and citizen of Mexico. He entered the United\nStates unlawfully in 1988, when he was five years old. He currently lives in\nOklahoma and has four U.S. citizen children. In January 2004, Flores Abarca\npleaded guilty to the Oklahoma misdemeanor offense of transporting a loaded\nfirearm in a motor vehicle. See OKLA. STAT. tit. 21 § 1289.13. In May 2015,\nthe Department of Homeland Security initiated removal proceedings against\nFlores Abarca, alleging that he was present in the United States without\nhaving been admitted or paroled. The Notice to Appear was personally served\non Flores Abarca and instructed him to appear before an immigration judge in\nDallas at a date and time to be set. Flores Abarca later received a notice of\nhearing with a specific date and time, and he personally appeared in Dallas\nimmigration court on October 19, 2015. At this hearing, Flores Abarca\nacknowledged receipt of the Notice to Appear, conceded his removability, and\nstated that he wished to seek cancellation of removal.\n Cancellation of removal is a form of relief available to certain otherwise\nremovable aliens. See 8 U.S.C. § 1229b. To be eligible for this relief, a\nnonpermanent resident such as Flores Abarca must (1) have been continuously\nphysically present in the United States for at least 10 years; (2) demonstrate\ngood moral character during this period; (3) not be convicted of an offense\nunder 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3); and (4) “establish[]\nthat removal would result in exceptional and extremely unusual hardship to\nthe alien’s spouse, parent, or child, who is a citizen of the United States or an\nalien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1).\n Flores Abarca requested cancellation of removal based on hardship to his\nfour young children and his ailing lawful permanent resident parents. The\n 2\n\f Case: 17-60236 Document: 00515081008 Page: 3 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\nimmigration judge asked for the government’s views regarding Flores Abarca’s\neligibility in light of his firearm transportation conviction. The government\nstated that it believed Flores Abarca was eligible for cancellation of removal,\nand that it did not believe that his firearm transportation conviction fell under\nthe statute’s firearms provision. The immigration judge nonetheless expressed\nconcern about this conviction and ordered further briefing on the issue. In its\nbrief, the government revised its original position and argued that Flores\nAbarca is ineligible for cancellation of removal because of his firearm\ntransportation conviction.\n\n After considering the parties’ briefs, the immigration judge held that\nFlores Abarca’s conviction for transporting a loaded firearm is a firearms\noffense described under 8 U.S.C. § 1227(a)(2)(C) and renders him ineligible for\ncancellation of removal as a matter of law. Flores Abarca appealed his order of\nremoval to the BIA. On March 3, 2017, the BIA affirmed the immigration court\nin a published and precedential opinion. See Matter of Flores-Abarca, 26 I & N\nDec. 922 (B.I.A. 2017). Flores Abarca timely moved for reconsideration. While\nhis motion for reconsideration was pending, Flores Abarca filed a motion to\nremand to the immigration court to permit him to apply for adjustment of\nstatus. The BIA denied both motions. Flores Abarca now petitions for review\nof the BIA’s decisions.\n II.\n For the first time on appeal, Flores Abarca seeks to challenge alleged\ndefects in his Notice to Appear (NTA). This court generally lacks jurisdiction\nto consider issues that were not first presented to the BIA. See Omari v. Holder,\n562 F.3d 314, 318–19 (5th Cir. 2009); see also 8 U.S.C. § 1252(d) (“A court may\nreview a final order of removal only if – (1) the alien has exhausted all\nadministrative remedies available to the alien as of right”). Flores Abarca\nnonetheless contends that he can raise this issue at any time because defects\n 3\n\f Case: 17-60236 Document: 00515081008 Page: 4 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\nin the NTA undermine the immigration court’s subject matter jurisdiction.\nThis argument is foreclosed by our precedent. See Pierre-Paul v. Barr, 930 F.3d\n684, 693 (5th Cir. 2019) (holding that 8 C.F.R. § 1003.14 is a non-jurisdictional\nclaim processing rule, defects in which are waivable). Because Flores Abarca\ndid not properly exhaust this issue, we lack jurisdiction to consider it. We\ntherefore turn to the merits.\n III.\n The BIA held that Flores Abarca is ineligible for cancellation of removal\nas a matter of law because “the crime of transporting a loaded firearm under\nOklahoma law is categorically a firearms offense under” 8 U.S.C.\n§ 1227(a)(2)(C). Flores-Abarca, 26 I & N Dec. at 924. Because the BIA reached\nan independent legal conclusion on this question, “our review is confined to the\nBIA’s analysis and reasoning.” Enrique-Gutierrez v. Holder, 612 F.3d 400, 407\n(5th Cir. 2010). With limited exceptions, we may “only affirm the BIA on the\nbasis of its stated rationale for ordering an alien removed from the United\nStates.” Id. The sole issue before us is therefore the purely legal question of\nwhether Flores Abarca’s Oklahoma firearm transportation conviction is\ncategorically a disqualifying firearms offense under § 1227(a)(2)(C). We have\njurisdiction to consider this legal issue. See 8 U.S.C. § 1252(a)(2)(D).\n A.\n We first review the relevant statutory framework. A nonpermanent\nresident does not qualify for cancellation of removal if he has “been convicted\nof an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)” of Title 8 of the\nU.S. Code. 8 U.S.C. § 1229b(b)(1)(C). The specific provision at issue in this case\nis § 1227(a)(2)(C), which renders deportable “[a]ny alien who at any time after\nadmission is convicted” of certain firearms offenses. As a threshold matter,\n\n\n\n\n 4\n\f Case: 17-60236 Document: 00515081008 Page: 5 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\nFlores Abarca contends that § 1227(a)(2)(C) does not apply to him because he\nwas never admitted to the United States. 1\n This argument is foreclosed by our precedent. Flores Abarca was not\ncharged with being removable under § 1227(a)(2)(C). This provision is relevant\nto this case only because it is cross-referenced in the cancellation of removal\nstatute. See § 1229b(b)(1)(C). We have held that this statutory cross-reference\nsimply “identif[ies] the kinds of offenses that will make an alien ineligible for\ncancellation of removal.” Nino v. Holder, 690 F.3d 691, 697 (5th Cir. 2012)\n(emphasis added). “For purposes of that ineligibility, it does not matter when\nthe offense occurred in relation to the alien’s admission.” Id. at 697–98; see also\nAleman v. Holder, 541 F. App’x 457, 459 (5th Cir. 2013) (“Nino v. Holder held\nthe plain language of § 1229b(b)(1)(C) unambiguously refers to the elements of\nthe offenses set forth in the three statutes and does not refer to any aspects of\nimmigration law.”).\n Flores Abarca is therefore ineligible for cancellation of removal if he was\nconvicted of an offense listed in § 1227(a)(2)(C), regardless of whether he had\nbeen admitted to the United States at the time of conviction. This provision\nreads in full:\n (C) Certain firearm offenses\n\n Any alien who at any time after admission is convicted under any\n law of purchasing, selling, offering for sale, exchanging, using,\n owning, possessing, or carrying, or of attempting or conspiring to\n purchase, sell, offer for sale, exchange, use, own, possess, or carry,\n any weapon, part, or accessory which is a firearm or destructive\n device (as defined in section 921(a) of Title 18) in violation of any\n law is deportable.\n\n\n 1 We note that Flores Abarca failed to properly exhaust this issue before the BIA.\nSee Omari, 562 F.3d at 319. Yet, as the government recognizes, exhaustion is not required\nwhen the BIA has no power to grant the requested relief because of binding circuit precedent.\nSee Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir. 2007). That is the case here.\n 5\n\f Case: 17-60236 Document: 00515081008 Page: 6 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\n8 U.S.C. § 1227(a)(2)(C).\n The list of offenses in the statute does not include a conviction for\n“transporting” a firearm in violation of any law.\n The BIA reasoned, however, that “[a] plain reading of the statute makes\n‘clear that Congress intended [it] to embrace the entire panoply of firearms\noffenses.’” Flores-Abarca, 26 I & N Dec. at 923 (quoting Valerio-Ochoa v. INS,\n241 F.3d 1092, 1095 (9th Cir. 2001)). The BIA further held that Flores Abarca\n“necessarily had constructive ‘possession’ of the firearm for purposes of”\n§ 1227(a)(2)(C) when he violated the Oklahoma firearm transportation statute.\nId. Finally, the BIA opined that “it would be illogical to hold that unlawful\npossession of a loaded firearm would fall within the scope of [§ 1227(a)(2)(C)]\nbut that unlawfully transporting the same weapon would not.” Id. at 924. We\naddress each rationale in turn.\n B.\n The government urges us to hold that a plain reading of the statute\ndemonstrates that Congress intended § 1227(a)(2)(C) “to apply broadly to any\ntype of firearm offense.” Alternatively, the government asks us to accord\nChevron deference to the BIA’s view that the statute encompasses “firearms\noffenses of any type.” Although this expansive reading would certainly simplify\nour analysis, we decline the government’s invitation to rewrite the statutory\ntext.\n We review the BIA’s “legal conclusions de novo unless a conclusion\nembodies the Board’s interpretation of an ambiguous provision of a statute\nthat it administers.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). In\nthe latter situation, a precedential decision by the BIA “is entitled to the\ndeference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense\nCouncil, 467 U.S. 837 (1984).” Ali v. Lynch, 814 F.3d 306, 309 (5th Cir. 2016)\n(cleaned up). “If Congress has explicitly left a gap for the agency to fill, there\n 6\n\f Case: 17-60236 Document: 00515081008 Page: 7 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\nis an express delegation of authority to the agency to elucidate a specific\nprovision of the statute by regulation.” Orellana-Monson v. Holder, 685 F.3d\n511, 517 (5th Cir. 2012) (quoting Chevron, 467 U.S. at 843–44). Before\naccording an agency Chevron deference, however, the “court must determine\nfirst whether Congress has directly spoken to the question at issue.” Id. “If so,\nthe court, as well as the agency, must give effect to the unambiguously\nexpressed intent of Congress.” Id.\n The BIA’s decision in this case is published and precedential, and thus\neligible for Chevron deference. See Flores-Abarca, 26 I & N Dec. 922. But\nneither the BIA nor the government on appeal identify any ambiguity in the\nfirearms offense provision. The BIA instead relied on its “plain reading of the\nstatute.” Id. at 923. “Chevron deference must be reflective, not reflexive.”\nForrest Gen. Hosp. v. Azar, 926 F.3d 221, 228 (5th Cir. 2019). Absent statutory\nambiguity, the government may not invoke Chevron to shield agency reasoning\nfrom judicial scrutiny. Id.; Orellana-Monson, 685 F.3d at 517.\n The text of § 1227(a)(2)(C) is neither vague nor unclear. Rather, it\nunambiguously renders a large number of firearms convictions grounds for\ndeportation. The provision applies to any alien, including legal permanent\nresidents, convicted of “purchasing, selling, offering for sale, exchanging,\nusing, owning, possessing, or carrying . . . a firearm or destructive device,” or\n“of attempting or conspiring” to commit any of these offenses. 8 U.S.C.\n§ 1227(a)(2)(C). Contrary to the government’s position, however, the statute\ndoes not state that “any type of firearm offense” is a basis for deportation. Nor\ndoes the statute on its face reach “the entire panoply of firearms offenses.”\nFlores-Abarca, 26 I & N Dec. at 923 (quotation omitted). If that were Congress’s\nintent, it could easily have said so. The same statute, for example, renders\ndeportable any alien convicted of violating “any law or regulation of a State,\nthe United States, or a foreign country relating to a controlled substance (as\n 7\n\f Case: 17-60236 Document: 00515081008 Page: 8 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\ndefined in section 802 of Title 21),” with a narrow exception for personal\nmarijuana possession. 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).\n Congress could have used the same language to render deportable any\nalien convicted of violating any law “relating to” a firearm. Instead, Congress\nchose to enumerate a list of offenses. See Dep’t of Homeland Security v.\nMacLean, 135 S. Ct. 913, 919 (2015) (explaining that “Congress generally acts\nintentionally when it uses particular language in one section of a statute but\nomits it in another”). Reflecting that choice, the provision is titled “Certain\nfirearm offenses.” See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)\n(explaining that while “headings are not commanding, they supply cues” as to\nthe intended scope of a statute).\n Notably, despite the expansive language of the controlled substance\nprovision, the Supreme Court has declined to hold that Congress intended to\ndeport every alien convicted of a drug offense. In Mellouli v. Lynch, the\ngovernment argued that “aliens who commit drug crimes in States whose drug\nschedules substantially overlap the federal schedules are removable, for state\nstatutes that criminalize hundreds of federally controlled drugs and a handful\nof similar substances, are laws relating to federally controlled substances.” 135\nS. Ct. 1980, 1989 (2015) (quotation omitted). The Court rejected this\nconstruction of § 1227(a)(2)(B)(i), explaining that “[t]his sweeping\ninterpretation departs so sharply from the statute’s text and history that it\ncannot be considered a permissible reading.” Id. at 1990. The Court also\nrefused to adopt the BIA’s view that the statute covers all drug paraphernalia\nconvictions on the grounds that drug paraphernalia statutes relate to “the drug\ntrade in general.” Id. at 1988–89. The Court instead held that, “to trigger\nremoval under § 1227(a)(2)(B)(i), the Government must connect an element of\nthe alien’s conviction to a drug ‘defined in [§ 802].’” Id. at 1991.\n\n\n 8\n\f Case: 17-60236 Document: 00515081008 Page: 9 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\n The same logic applies here. A firearm conviction cannot trigger\ndeportation or ineligibility for cancellation of removal under § 1227(a)(2)(C)\nunless it fits within one of the statutorily enumerated offenses. This\nconstruction is consistent with our prior applications of this statute, as well as\nthat of other circuits. See Segovia-Rivas v. Lynch, 643 F. App’x 367, 369 (5th\nCir. 2016) (holding that a conviction for “Attempted Deadly Conduct—\nDischarge of a Firearm” is categorically an offense covered by § 1227(a)(2)(C)\nbecause “[d]ischarging a firearm clearly involves use of a firearm”) (emphasis\nadded); Aybar-Alejo v. INS, 230 F.3d 487, 488–89 (1st Cir. 2000) (explaining\nthat a conviction for firearm possession under Rhode Island law is not broader\nthan possession under federal law); Lopez-Amaro v. INS, 25 F.3d 986, 989–90\n(11th Cir. 1994) (holding that “first degree murder with a pistol” qualifies as\n“using a firearm in violation of any law”).\n The government contends that several other circuits have interpreted\n§ 1227(a)(2)(C) more expansively to “embrace the entire panoply of firearms\noffenses.” Valerio-Ochoa, 241 F.3d at 1095; see also Kuhali v. Reno, 266 F.3d\n93, 103 (2d Cir. 2001); Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999). The cases\ncited do include some broad language regarding the scope of the firearms\nprovision. But our sister circuits took care to locate the petitioner’s particular\nconviction within one of the enumerated offenses. See Valerio-Ochoa, 241 F.3d\nat 1095–96 (explaining that a conviction for “willfully discharg[ing] a firearm”\nclearly “qualifies as ‘using’ a firearm under 8 U.S.C. § 1227(a)(2)(C)”); Kuhali,\n266 F.3d at 105 (finding that exporting firearms without a license involves\n“possessing” a firearm because “the power to send or take a commodity out of\nthe country necessarily implies—because of the exercise of dominion or\ncontrol—at least constructive possession”); Hall, 167 F.3d at 856 (holding that\na conviction for making false statements in connection with the acquisition of\na firearm was a conviction for “purchasing or attempting to purchase” a firearm\n 9\n\f Case: 17-60236 Document: 00515081008 Page: 10 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\nunder § 1227(a)(2)(C) because the petitioner “participated in and enabled an\nunlawful purchase of a firearm”). These cases do not stand for the proposition\nthat either the BIA or the courts are free to disregard the statute’s list of\nenumerated offenses.\n Despite its own broad language, the BIA similarly went on to consider\nwhether Flores Abarca’s firearm transportation offense is a conviction for\n“possessing” a firearm under § 1227(a)(2)(C). See Flores-Abarca, 26 I & N Dec.\nat 923. We now review that determination.\n C.\n Flores Abarca is ineligible for cancellation of removal if he was “convicted\nunder any law of . . . possessing . . . a firearm or destructive device.” 8 U.S.C.\n§ 1227(a)(2)(C). The BIA held that Flores Abarca “necessarily had constructive\n‘possession’ of the firearm” when he “knowingly and willfully transported” it in\nhis vehicle, and “conclude[d] that the crime of transporting a loaded firearm\nunder Oklahoma law is categorically a firearms offense under the Act.” Flores-\nAbarca, 26 I&N Dec. at 923–24. Our analysis of federal and Oklahoma law\ncompels a different conclusion.\n Like the BIA, we must analyze Flores Abarca’s conviction under the\ncategorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 192 (2013);\nSegovia-Rivas, 643 F. App’x at 369. “Because Congress predicated deportation\non convictions, not conduct, the approach looks to the statutory definition of\nthe offense of conviction, not to the particulars of an alien’s behavior.” Mellouli,\n135 S. Ct. at 1986 (quotation omitted). “[A] state offense is a categorical match\nwith a generic federal offense only if a conviction of the state offense\nnecessarily involved facts equating to the generic federal offense.” Moncrieffe,\n569 U.S. at 190 (cleaned up). “[W]e are to look to the conviction itself as our\nstarting place, not to what might have or could have been charged.” Carachuri-\nRosendo v. Holder, 560 U.S. 563, 576 (2010). In the context of a guilty plea, a\n 10\n\f Case: 17-60236 Document: 00515081008 Page: 11 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\nconviction is a categorical match “only if the defendant ‘necessarily admitted\n[the] elements of the generic offense.’” Descamps v. United States, 570 U.S. 254,\n262 (2013) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).\n Because we find that § 1227(a)(2)(C) “is unambiguous according to its\nplain language with respect to the question presented,” we review the BIA’s\nlegal conclusions de novo. Miresles-Zuniga v. Holder, 743 F.3d 110, 112 (5th\nCir. 2014). We also review de novo the BIA’s interpretation of Flores Abarca’s\nOklahoma offense, as “[d]etermining a particular federal or state crime’s\nelements lies beyond the scope of the BIA’s delegated power or accumulated\nexpertise.” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002); see also\nSarmientos v. Holder, 742 F.3d 624, 627 (5th Cir. 2014) (“[N]o deference is\nafforded in reviewing the BIA’s interpretation of state criminal law.”).\n We first outline the elements of the generic federal offense of unlawful\nfirearm possession. Under federal law, “possession” includes constructive\npossession. See Henderson v. United States, 135 S. Ct. 1780, 1784 (2015); see\nalso Aybar-Alejo, 230 F.3d at 488–89 (collecting cases). “Actual possession\nexists when a person has direct physical control over a thing,” whereas\n“[c]onstructive possession is established when a person, though lacking such\nphysical custody, still has the power and intent to exercise control over the\nobject.” Henderson, 135 S. Ct. at 1784. Yet mere possession of a firearm is not\na criminal offense. 2 See District of Columbia v. Heller, 554 U.S. 570, 636 (2008).\n“Assuming compliance with ordinary licensing requirements, the possession of\na gun can be entirely innocent.” Rehaif v. United States, 139 S. Ct. 2191, 2197\n(2019). The plain meaning of “possessing . . . a firearm . . . in violation of any\n\n\n\n\n 2 Although Congress has restricted the rights of unlawfully present aliens to\npossess firearms, the offenses listed in § 1227(a)(2)(C) apply to any alien, including legal\npermanent residents. See, e.g., Valerio-Ochoa, 241 F.3d at 1094.\n 11\n\f Case: 17-60236 Document: 00515081008 Page: 12 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\nlaw” under § 1227(a)(2)(C) therefore requires that the possession be in some\nrespect unlawful.\n The parties agree that the elements of Flores Abarca’s Oklahoma offense\nare: (1) knowingly; (2) willfully; (3) transporting; (4) a specified firearm; (5)\nthat is loaded; (6) in the interior/(locked exterior compartment)/trunk; (7) of a\nmotor vehicle; (8) on a public highway or roadway. See Okla. Unif. Jury Instr.\nCR 6-37A; see also Flores-Abarca, 26 I & N Dec. at 923. These elements do not\ninclude possession, much less unlawful possession. 3 On its face, the statute is\ntherefore not a categorical match to the generic federal offense of unlawful\nfirearm possession. See Moncrieffe, 569 U.S. at 190.\n To resist this conclusion, the government argues that Flores Abarca’s act\nof transporting a loaded firearm necessarily encompassed the possession or\nconstructive possession of a firearm. The parties have not briefed the issue of\nwhether an element of possession is sufficient to transform a conviction for a\ndifferent firearms offense into a conviction for possessing a firearm within the\nmeaning of § 1227(a)(2)(C). We have some doubts about this assumption. 4 Even\naccepting the government’s framing of the issue, however, it is not the case\nthat the Oklahoma offense of transporting a loaded firearm requires that the\ndefendant actually or constructively possess a firearm.\n\n\n\n\n 3 Oklahoma law recognizes separate offenses of unlawful firearm possession.\nSee, e.g., OKLA. STAT. tit. 21 § 1280.1 (possession of a firearm on school property); § 1283\n(possession of a firearm by a convicted felon). A conviction for one of these offenses does\nrequire proof of possession. See Okla. Unif. Jury Instr. CR 6-37 (outlining the elements of\n“unlawful possession of a firearm” as (1) knowing; (2) willful; (3) possession of/having under\none’s immediate control; (4) a specified firearm; and (5) the specific ground for unlawfulness).\n 4 We note that construing a conviction for “possessing” a firearm under\n§ 1227(a)(2)(C) to include firearm convictions involving lawful possession plus an illegal act\nmight render superfluous many of the other enumerated offenses, including “using,” and\n“carrying” a firearm. See Bailey v. United States, 516 U.S. 137, 146 (1995) (adopting a limited\nreading of “use” of a firearm to avoid creating redundancy with the term “carry”).\n 12\n\f Case: 17-60236 Document: 00515081008 Page: 13 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\n The term “transport” does not necessarily imply possession. The driver\nof a vehicle can transport passengers and their possessions without having the\n“power and intent to exercise control over” every object in the vehicle.\nHenderson, 135 S. Ct. at 1784. As we have been clear, “dominion over the\nvehicle . . . alone cannot establish constructive possession of a weapon found in\nthe vehicle, particularly in the face of evidence that strongly suggests that\nsomebody else exercised dominion and control over the weapon.” United States\nv. Wright, 24 F.3d 732, 735 (5th Cir. 1994); see also United States v. Melancon,\n662 F.3d 708, 713 (5th Cir. 2011) (“Where two people jointly occupy a space,\ndominion over the space is not enough by itself to establish constructive\npossession.”). Although knowledge of a firearm’s presence may be evidence of\npossession, knowing transportation does not conclusively establish\nconstructive possession as a matter of law. See Wright, 24 F.3d at 735\n(explaining that “whether constructive possession exists is not a scientific\ninquiry” and requires “a common sense, fact-specific approach”); United States\nv. Crain, 33 F.3d 480, 486–87 (5th Cir. 1994) (finding insufficient evidence that\ndefendant driver exercised constructive possession over drugs found in the\nvehicle).\n Oklahoma’s criminal prohibition against transporting loaded firearms in\nvehicles clearly extends to firearms possessed by passengers. At the time of\nFlores Abarca’s offense, the relevant statute read as follows:\n Except as otherwise provided by . . . another provision of law\n of this state, it shall be unlawful to transport a loaded pistol, rifle,\n or shotgun in any landborne motor vehicle over a public highway\n or roadway. However, a rifle or shotgun may be transported when\n clip or magazine loaded and not chamber loaded when transported\n in an exterior locked compartment of the vehicle or trunk of the\n vehicle.\n\n Any person convicted of a violation of this section shall be\n punished as provided in Section 1289.15 of this title.\n 13\n\f Case: 17-60236 Document: 00515081008 Page: 14 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\n\n\n Any person who is the operator of a vehicle or is a passenger\n in any vehicle wherein another person who is licensed pursuant to\n the Oklahoma Self-Defense Act, Sections 1 through 25 of this act,\n to carry a concealed handgun and is carrying a concealed handgun\n or has concealed the handgun in such vehicle, shall not be deemed\n in violation of the provisions of this section provided the licensee\n is in or near the vehicle.\n\nOKLA. STAT. tit. 21 § 1289.13 (2003).\n The statute’s final paragraph protects a driver from liability if his\npassenger has a concealed carry license. But a driver would have no such safe\nharbor if he knowingly gave a ride to an armed passenger who lacked a\nconcealed carry license. Even in cases where a defendant does have possession\nof a firearm as a factual matter, Oklahoma is never required to prove\npossession or constructive possession to obtain a conviction under this statute.\nFlores Abarca thus did not “necessarily admit[] the elements of the generic\noffense” of unlawful firearm possession by pleading guilty to this Oklahoma\ntransportation offense. Descamps, 570 U.S. at 262 (quotation omitted).\n The BIA’s contrary conclusion relied on a statement in United States v.\nBass, that “virtually all transportations, whether interstate or intrastate,\ninvolve an accompanying possession or receipt.” 404 U.S. 336, 340 (1971);\nFlores-Abarca, 26 I & N Dec. at 924. This factual observation regarding the\nfrequent overlap between transportation and possession offenses does not alter\nour analysis. The question presented in Bass was whether the federal\nprohibition on felons possessing, receiving, or transporting firearms requires\nproof of a connection to interstate commerce in every case. 404 U.S. at 339. The\nCourt held that “the phrase ‘in commerce or affecting commerce’ is part of all\nthree offenses” rather than modifying only the transport offense. Id. at 347.\nThe Supreme Court did not hold that the prohibition against felons\ntransporting a firearm is redundant of the prohibition against possession, nor\n 14\n\f Case: 17-60236 Document: 00515081008 Page: 15 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\nthat all federal transportation offenses require proof of possession. 5 Such\nholdings would have been consequential for federal criminal law, increasing\nthe government’s burden of proof in transportation prosecutions and\nintroducing redundancy in the federal criminal code. See, e.g., 18 U.S.C.\n§ 922(g), (h)(1), (k). But that was not the issue presented in Bass, and it is not\nthe issue the Court decided.\n Importantly, the Supreme Court’s later decision in Muscarello v. United\nStates, 524 U.S. 125 (1998), makes clear that transportation offenses remain\ndistinct from possession offenses. The Court in Muscarello held that the phrase\n“carries a firearm” in 18 U.S.C. § 924(c)(1) “applies to a person who knowingly\npossesses and conveys firearms in a vehicle, including in the locked glove\ncompartment or trunk of a car, which the person accompanies.” Id. at 126–27.\nIn a dissenting opinion, Justice Ginsburg argued that this definition better\ndescribes the term “transport” than the term “carry.” Id. at 146–48. 6 She noted\nthat other federal statutes use the term “transport” rather than “carry” to\n“describ[e] when and how a person may travel in a vehicle that contains his\nfirearms.” Id. at 146–47 (citing 18 U.S.C §§ 925(a)(2)(B) and 926A). A majority\nof the Court disagreed, explaining that its “definition does not equate ‘carry’\nand ‘transport.’” Id. at 134. “‘Carry’ implies personal agency and some degree\n\n\n\n 5 We were not aided by the government’s briefing on this point, which incorrectly\nattributed language from Malilia v. Holder, 632 F.3d 598, 604 (9th Cir. 2011) to Bass itself.\nThis inaccurate citation was inquired into, but not corrected, at oral argument. We should\nnot need to remind the government that, although we are bound by the precedent of the\nSupreme Court, we are not bound by another circuit’s interpretation of that precedent. In\nany event, we do not find support in Bass for the proposition that “establishing that a firearm\ntraveled interstate necessarily requires some element of possession.” Malilia, 632 F.3d at\n604. We similarly part ways with the Second Circuit’s interpretation of Bass to imply an\nelement of possession in transportation offenses. See Kuhali, 266 F.3d at 105.\n 6 The Eighth Circuit expressed a similar view in a case predating Muscarello.\nSee United States v. Richards, 967 F.2d 1189, 1195 (8th Cir. 1992) (construing “the ordinary\nmeaning of the term ‘transport’ . . . as involving an element of possession and an element of\nmovement”).\n 15\n\f Case: 17-60236 Document: 00515081008 Page: 16 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\nof possession, whereas ‘transport’ does not have such a limited connotation and,\nin addition, implies the movement of goods in bulk over great distances.” Id.\n(emphasis added).\n This distinction is fully consistent with our construction of the Oklahoma\nstatute at issue in this case. Although carrying a firearm requires “some degree\nof possession,” transporting a firearm does not. Id. The government attempts\nto distinguish Muscarello by arguing that the Supreme Court understood\n“transport” to refer only to the “movement of goods in bulk,” whereas Flores\nAbarca’s Oklahoma transportation offense is more akin to “carrying.” Id. This\nargument is unavailing. The Supreme Court discussed several statutes that\napply the term “transport” to single firearms. See id. at 134–36; see also 18\nU.S.C § 924(b) (imposing criminal penalties on someone who “transports . . . a\nfirearm” with intent to commit a felony). Notably, the statute most central to\nthe disagreement between the majority and the dissent, 18 U.S.C. § 926A, uses\nthe term “transport” in precisely the same context as the Oklahoma statute at\nissue here. See id. (providing that individuals are “entitled to transport a\nfirearm for any lawful purpose,” so long as “during such transportation the\nfirearm is unloaded” and not “directly accessible from the passenger\ncompartment of such transporting vehicle”). The Court specifically addressed\n§ 926A and reiterated its conclusion that “the word ‘transport’ is broader than\nthe word ‘carry.’” Muscarello, 524 U.S. at 135. We have no basis to conclude\nthat the term “transport” has a different meaning under Oklahoma law than\nunder federal law. 7\n\n\n\n 7 The government represented at oral argument that its briefing and the BIA’s\nopinion had relied on Oklahoma caselaw interpreting transportation to require an element\nof constructive possession. As the government commendably acknowledged in a post-\nargument letter to the court, this representation was mistaken. The government’s letter\nbelatedly points us to a decision from the Oklahoma Court of Criminal Appeals, Allen v. State,\n871 P.2d 79 (Okla. Crim. App. 1994), as support for its position. We emphasize that “[t]he\n 16\n\f Case: 17-60236 Document: 00515081008 Page: 17 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\n We acknowledge that our analysis is in tension with the outcome reached\nby the Eighth Circuit in Awad v. Gonzales, 494 F.3d 723 (8th Cir. 2007). Awad,\na legal permanent resident and “a sport hunter lawfully hunting,” was cited\nfor transporting a loaded hunting rifle in his vehicle. Id. at 724. The BIA held\nthat this misdemeanor game and fish law violation rendered Awad deportable\nunder § 1227(a)(2)(C). Id. at 724–25. Awad petitioned for review, arguing that\nhis hunting rifle fell within an exception to the federal definition of a firearm.\nId. at 725. The court rejected this argument and affirmed. Id. at 726–27. The\nissue of whether § 1227(a)(2)(C) encompasses transportation offenses was\napparently not raised before the Eighth Circuit, and the court did not squarely\naddress it. Instead, the court deferred to the BIA without examining the\nspecific offenses enumerated in § 1227(a)(2)(C) or identifying any ambiguity in\nthe statutory language. Id. at 725. We therefore do not find Awad persuasive\nas to the question presented in this appeal.\n In sum, we hold that Flores Abarca’s misdemeanor conviction for\nunlawfully transporting a loaded firearm in a motor vehicle does not include\nunlawful possession as a necessary element and does not categorically match\nan offense listed under 8 U.S.C. § 1227(a)(2)(C).\n\n\n\n\nproper time to closely examine the record and develop legal defenses is before the completion\nof briefing,” not after oral argument. United States v. Arellano-Banuelos, 912 F.3d 862, 865\nn.2 (5th Cir. 2019). Even if the government’s new argument were properly before us, it would\nnot affect our conclusion. The defendant in Allen was charged with “carrying a loaded\nfirearm.” 871 P.2d at 102. The Oklahoma Court of Criminal Appeals reversed this conviction,\nexplaining that simple possession of a firearm is not a crime. Id. at 103. To constitute a crime,\nthe “carrying” must be unlawful in some additional way, such as “carrying a loaded firearm\nin a vehicle” or “carrying any firearm after conviction of a felony.” Id. The Oklahoma court\ndid not, however, hold that “carrying” a firearm is the only means to commit the offense of\nunlawful transportation of a firearm in a motor vehicle. Rather, its decision is consistent with\nthe proposition that “‘transport’ is a broader category that includes ‘carry’ but also\nencompasses other activity.” Muscarello, 524 U.S. at 135.\n 17\n\f Case: 17-60236 Document: 00515081008 Page: 18 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\n D.\n Finally, we address the BIA’s view that omitting firearm transportation\noffenses from the scope of § 1227(a)(2)(C) is “illogical” and inconsistent with\nlegislative history. Flores-Abarca, 26 I&N Dec. at 924. The BIA observes that,\nin the original version of the statute, “only the crimes of ‘possessing or carrying’\na firearm were a basis for deportation.” Id. “Subsequent legislation expanded\nthe deportable offenses to the current extensive list of crimes, as well as\nattempts and conspiracies to commit them.” Id. This history, however, can be\nread in multiple ways. On the one hand, Congress may have wished to expand\nthe reach of § 1227(a)(2)(C) to cover all firearms offenses, and simply neglected\nto include the term “transporting” when amending the statute. Such an\noversight would be somewhat surprising, as federal criminal law extensively\nregulates the transportation of firearms. See, e.g., 18 U.S.C. § 922(a)(1)–(5), (i),\n(n), § 924(b). On the other hand, Congress may have made a deliberate choice\nto add some firearms offenses but not others. Regardless, “[w]e cannot replace\nthe actual text with speculation as to Congress’ intent.” Magwood v. Patterson,\n561 U.S. 320, 334 (2010).\n Nor can we substitute either the BIA’s policy views or our own judgment\nfor that of Congress. See Rodriguez v. United States, 480 U.S. 522, 525–26\n(1987). Congress clearly intended to render deportable most aliens convicted of\ngun crimes, but it chose to effectuate this goal by specifying a list of offenses.\n“Legislation is, after all, the art of compromise, the limitations expressed in\nstatutory terms often the price of passage, and no statute yet known pursues\nits stated purpose at all costs.” Henson v. Santander Consumer USA Inc., 137\nS. Ct. 1718, 1725 (2017) (cleaned up). We must therefore “presume that a\nlegislature says in a statute what it means and means in a statute what it says\nthere.” Connecticut National Bank v. Germain, 503 U.S. 249, 253–54 (1992).\n\n\n 18\n\f Case: 17-60236 Document: 00515081008 Page: 19 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\n “[W]hen the statute’s language is plain, the sole function of the courts—\nat least where the disposition required by the text is not absurd—is to enforce\nit according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters\nBank, N.A., 530 U.S. 1, 6 (2000) (cleaned up). Here, a plain reading of the\nstatute produces no absurd results. The BIA maintains that it would be\n“illogical to hold that unlawful possession of a loaded firearm would fall within\nthe scope of [§ 1227(a)(2)(C)] but that unlawfully transporting the same\nweapon would not.” Flores-Abarca, 26 I&N Dec. at 924. We disagree. As\npreviously emphasized, firearms are not inherently illicit. An individual can\ncommit a transportation offense even if transporting a legally-owned firearm\nfrom one lawful location to another, for an entirely lawful purpose. See, e.g.,\nAwad, 494 F.3d at 724 (noting that Awad was “a sport hunter lawfully hunting”\nwhen he was cited for transporting a loaded hunting rifle). Moreover, mere\ntransportation lacks the elements of unlawful possession or use that can make\nfirearm offenses particularly dangerous. See, e.g., Muscarello, 524 U.S. at 135–\n36 (noting that Congress “impose[d] a less strict sentencing regime” on firearm\ntransport offenses under 18 U.S.C. § 924(b) than firearm carrying offenses\nunder § 924(c)).\n It is thus rational for Congress to treat unlawful firearm transportation\ndifferently from unlawful possession. We also note that § 1227(a)(2)(C) is not\nthe sole removal provision applicable to firearms offenses. Congress has\nseparately designated certain serious firearm transportation offenses as\naggravated felonies, including transporting a firearm with the intent to\ncommit a felony. See 8 U.S.C. § 1101(43)(E)(ii); see also 18 U.S.C. § 922(g)(1)–\n(5); § 922(n); § 924(b). An alien convicted of one of these offenses is deportable\nunder § 1227(a)(2)(A)(iii), notwithstanding our construction of § 1227(a)(2)(C).\nThe statutory scheme as a whole does not create any illogical gaps in\nimmigration enforcement.\n 19\n\f Case: 17-60236 Document: 00515081008 Page: 20 Date Filed: 08/19/2019\n\n\n\n No. 17-60236\n IV.\n Flores Abarca’s Oklahoma firearm transportation conviction is not an\noffense under 8 U.S.C. § 1227(a)(2)(C) and does not render him statutorily\nineligible for cancellation of removal. In light of this holding, we need not reach\nthe question of whether the BIA abused its discretion in denying Flores\nAbarca’s motions for reconsideration and remand.\n We GRANT the petition for review, VACATE the decision of the BIA,\nand REMAND for further proceedings not inconsistent with this opinion.\n\n\n\n\n 20\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Rogelio Flores-Abarca v. William Barr, U. S. Atty\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-60236 Document: 00515081008 Page: 1 Date Filed: 08/19/2019\\n\\n\\n\\n\\n REVISED August 19, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n\\n\\n No. 17-60236\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\nROGELIO FLORES-ABARCA, August 16, 2019\\n\\n Petitioner Lyle W. Cayce\\n Clerk\\nv.\\n\\nWILLIAM P. BARR, U. S. ATTORNEY GENERAL,\\n\\n Respondent\\n\\n\\n\\n\\n Petitions for Review of an Order of the\\n Board of Immigration Appeals\\n\\n\\nBefore DAVIS, HIGGINSON, and WILLETT, Circuit Judges.\\nSTEPHEN A. HIGGINSON, Circuit Judge:\\n Rogelio Flores Abarca seeks review of a Board of Immigration Appeals\\n(BIA) decision holding that he is statutorily ineligible for cancellation of\\nremoval because of a 2004 firearm transportation conviction. We first conclude\\nthat Flores Abarca failed to exhaust his challenge to the immigration court’s\\njurisdiction based on alleged defects in his Notice to Appear. On the merits, we\\nhold that the Oklahoma misdemeanor of transporting a loaded firearm in a\\nmotor vehicle is not one of the firearms offenses listed under 8 U.S.C.\\n§ 1227(a)(2)(C). Accordingly, this conviction does not disqualify Flores Abarca\\n\\f Case: 17-60236 Document: 00515081008 Page: 2 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nfrom seeking cancellation of removal. We grant the petition for review, vacate\\nthe BIA’s order, and remand for further proceedings.\\n I.\\n Flores Abarca is a native and citizen of Mexico. He entered the United\\nStates unlawfully in 1988, when he was five years old. He currently lives in\\nOklahoma and has four U.S. citizen children. In January 2004, Flores Abarca\\npleaded guilty to the Oklahoma misdemeanor offense of transporting a loaded\\nfirearm in a motor vehicle. See OKLA. STAT. tit. 21 § 1289.13. In May 2015,\\nthe Department of Homeland Security initiated removal proceedings against\\nFlores Abarca, alleging that he was present in the United States without\\nhaving been admitted or paroled. The Notice to Appear was personally served\\non Flores Abarca and instructed him to appear before an immigration judge in\\nDallas at a date and time to be set. Flores Abarca later received a notice of\\nhearing with a specific date and time, and he personally appeared in Dallas\\nimmigration court on October 19, 2015. At this hearing, Flores Abarca\\nacknowledged receipt of the Notice to Appear, conceded his removability, and\\nstated that he wished to seek cancellation of removal.\\n Cancellation of removal is a form of relief available to certain otherwise\\nremovable aliens. See 8 U.S.C. § 1229b. To be eligible for this relief, a\\nnonpermanent resident such as Flores Abarca must (1) have been continuously\\nphysically present in the United States for at least 10 years; (2) demonstrate\\ngood moral character during this period; (3) not be convicted of an offense\\nunder 8 U.S.C. § 1182(a)(2), § 1227(a)(2), or § 1227(a)(3); and (4) “establish[]\\nthat removal would result in exceptional and extremely unusual hardship to\\nthe alien’s spouse, parent, or child, who is a citizen of the United States or an\\nalien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1).\\n Flores Abarca requested cancellation of removal based on hardship to his\\nfour young children and his ailing lawful permanent resident parents. The\\n 2\\n\\f Case: 17-60236 Document: 00515081008 Page: 3 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nimmigration judge asked for the government’s views regarding Flores Abarca’s\\neligibility in light of his firearm transportation conviction. The government\\nstated that it believed Flores Abarca was eligible for cancellation of removal,\\nand that it did not believe that his firearm transportation conviction fell under\\nthe statute’s firearms provision. The immigration judge nonetheless expressed\\nconcern about this conviction and ordered further briefing on the issue. In its\\nbrief, the government revised its original position and argued that Flores\\nAbarca is ineligible for cancellation of removal because of his firearm\\ntransportation conviction.\\n\\n After considering the parties’ briefs, the immigration judge held that\\nFlores Abarca’s conviction for transporting a loaded firearm is a firearms\\noffense described under 8 U.S.C. § 1227(a)(2)(C) and renders him ineligible for\\ncancellation of removal as a matter of law. Flores Abarca appealed his order of\\nremoval to the BIA. On March 3, 2017, the BIA affirmed the immigration court\\nin a published and precedential opinion. See Matter of Flores-Abarca, 26 I & N\\nDec. 922 (B.I.A. 2017). Flores Abarca timely moved for reconsideration. While\\nhis motion for reconsideration was pending, Flores Abarca filed a motion to\\nremand to the immigration court to permit him to apply for adjustment of\\nstatus. The BIA denied both motions. Flores Abarca now petitions for review\\nof the BIA’s decisions.\\n II.\\n For the first time on appeal, Flores Abarca seeks to challenge alleged\\ndefects in his Notice to Appear (NTA). This court generally lacks jurisdiction\\nto consider issues that were not first presented to the BIA. See Omari v. Holder,\\n562 F.3d 314, 318–19 (5th Cir. 2009); see also 8 U.S.C. § 1252(d) (“A court may\\nreview a final order of removal only if – (1) the alien has exhausted all\\nadministrative remedies available to the alien as of right”). Flores Abarca\\nnonetheless contends that he can raise this issue at any time because defects\\n 3\\n\\f Case: 17-60236 Document: 00515081008 Page: 4 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nin the NTA undermine the immigration court’s subject matter jurisdiction.\\nThis argument is foreclosed by our precedent. See Pierre-Paul v. Barr, 930 F.3d\\n684, 693 (5th Cir. 2019) (holding that 8 C.F.R. § 1003.14 is a non-jurisdictional\\nclaim processing rule, defects in which are waivable). Because Flores Abarca\\ndid not properly exhaust this issue, we lack jurisdiction to consider it. We\\ntherefore turn to the merits.\\n III.\\n The BIA held that Flores Abarca is ineligible for cancellation of removal\\nas a matter of law because “the crime of transporting a loaded firearm under\\nOklahoma law is categorically a firearms offense under” 8 U.S.C.\\n§ 1227(a)(2)(C). Flores-Abarca, 26 I & N Dec. at 924. Because the BIA reached\\nan independent legal conclusion on this question, “our review is confined to the\\nBIA’s analysis and reasoning.” Enrique-Gutierrez v. Holder, 612 F.3d 400, 407\\n(5th Cir. 2010). With limited exceptions, we may “only affirm the BIA on the\\nbasis of its stated rationale for ordering an alien removed from the United\\nStates.” Id. The sole issue before us is therefore the purely legal question of\\nwhether Flores Abarca’s Oklahoma firearm transportation conviction is\\ncategorically a disqualifying firearms offense under § 1227(a)(2)(C). We have\\njurisdiction to consider this legal issue. See 8 U.S.C. § 1252(a)(2)(D).\\n A.\\n We first review the relevant statutory framework. A nonpermanent\\nresident does not qualify for cancellation of removal if he has “been convicted\\nof an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3)” of Title 8 of the\\nU.S. Code. 8 U.S.C. § 1229b(b)(1)(C). The specific provision at issue in this case\\nis § 1227(a)(2)(C), which renders deportable “[a]ny alien who at any time after\\nadmission is convicted” of certain firearms offenses. As a threshold matter,\\n\\n\\n\\n\\n 4\\n\\f Case: 17-60236 Document: 00515081008 Page: 5 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nFlores Abarca contends that § 1227(a)(2)(C) does not apply to him because he\\nwas never admitted to the United States. 1\\n This argument is foreclosed by our precedent. Flores Abarca was not\\ncharged with being removable under § 1227(a)(2)(C). This provision is relevant\\nto this case only because it is cross-referenced in the cancellation of removal\\nstatute. See § 1229b(b)(1)(C). We have held that this statutory cross-reference\\nsimply “identif[ies] the kinds of offenses that will make an alien ineligible for\\ncancellation of removal.” Nino v. Holder, 690 F.3d 691, 697 (5th Cir. 2012)\\n(emphasis added). “For purposes of that ineligibility, it does not matter when\\nthe offense occurred in relation to the alien’s admission.” Id. at 697–98; see also\\nAleman v. Holder, 541 F. App’x 457, 459 (5th Cir. 2013) (“Nino v. Holder held\\nthe plain language of § 1229b(b)(1)(C) unambiguously refers to the elements of\\nthe offenses set forth in the three statutes and does not refer to any aspects of\\nimmigration law.”).\\n Flores Abarca is therefore ineligible for cancellation of removal if he was\\nconvicted of an offense listed in § 1227(a)(2)(C), regardless of whether he had\\nbeen admitted to the United States at the time of conviction. This provision\\nreads in full:\\n (C) Certain firearm offenses\\n\\n Any alien who at any time after admission is convicted under any\\n law of purchasing, selling, offering for sale, exchanging, using,\\n owning, possessing, or carrying, or of attempting or conspiring to\\n purchase, sell, offer for sale, exchange, use, own, possess, or carry,\\n any weapon, part, or accessory which is a firearm or destructive\\n device (as defined in section 921(a) of Title 18) in violation of any\\n law is deportable.\\n\\n\\n 1 We note that Flores Abarca failed to properly exhaust this issue before the BIA.\\nSee Omari, 562 F.3d at 319. Yet, as the government recognizes, exhaustion is not required\\nwhen the BIA has no power to grant the requested relief because of binding circuit precedent.\\nSee Arce-Vences v. Mukasey, 512 F.3d 167, 172 (5th Cir. 2007). That is the case here.\\n 5\\n\\f Case: 17-60236 Document: 00515081008 Page: 6 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n8 U.S.C. § 1227(a)(2)(C).\\n The list of offenses in the statute does not include a conviction for\\n“transporting” a firearm in violation of any law.\\n The BIA reasoned, however, that “[a] plain reading of the statute makes\\n‘clear that Congress intended [it] to embrace the entire panoply of firearms\\noffenses.’” Flores-Abarca, 26 I & N Dec. at 923 (quoting Valerio-Ochoa v. INS,\\n241 F.3d 1092, 1095 (9th Cir. 2001)). The BIA further held that Flores Abarca\\n“necessarily had constructive ‘possession’ of the firearm for purposes of”\\n§ 1227(a)(2)(C) when he violated the Oklahoma firearm transportation statute.\\nId. Finally, the BIA opined that “it would be illogical to hold that unlawful\\npossession of a loaded firearm would fall within the scope of [§ 1227(a)(2)(C)]\\nbut that unlawfully transporting the same weapon would not.” Id. at 924. We\\naddress each rationale in turn.\\n B.\\n The government urges us to hold that a plain reading of the statute\\ndemonstrates that Congress intended § 1227(a)(2)(C) “to apply broadly to any\\ntype of firearm offense.” Alternatively, the government asks us to accord\\nChevron deference to the BIA’s view that the statute encompasses “firearms\\noffenses of any type.” Although this expansive reading would certainly simplify\\nour analysis, we decline the government’s invitation to rewrite the statutory\\ntext.\\n We review the BIA’s “legal conclusions de novo unless a conclusion\\nembodies the Board’s interpretation of an ambiguous provision of a statute\\nthat it administers.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). In\\nthe latter situation, a precedential decision by the BIA “is entitled to the\\ndeference prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense\\nCouncil, 467 U.S. 837 (1984).” Ali v. Lynch, 814 F.3d 306, 309 (5th Cir. 2016)\\n(cleaned up). “If Congress has explicitly left a gap for the agency to fill, there\\n 6\\n\\f Case: 17-60236 Document: 00515081008 Page: 7 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nis an express delegation of authority to the agency to elucidate a specific\\nprovision of the statute by regulation.” Orellana-Monson v. Holder, 685 F.3d\\n511, 517 (5th Cir. 2012) (quoting Chevron, 467 U.S. at 843–44). Before\\naccording an agency Chevron deference, however, the “court must determine\\nfirst whether Congress has directly spoken to the question at issue.” Id. “If so,\\nthe court, as well as the agency, must give effect to the unambiguously\\nexpressed intent of Congress.” Id.\\n The BIA’s decision in this case is published and precedential, and thus\\neligible for Chevron deference. See Flores-Abarca, 26 I & N Dec. 922. But\\nneither the BIA nor the government on appeal identify any ambiguity in the\\nfirearms offense provision. The BIA instead relied on its “plain reading of the\\nstatute.” Id. at 923. “Chevron deference must be reflective, not reflexive.”\\nForrest Gen. Hosp. v. Azar, 926 F.3d 221, 228 (5th Cir. 2019). Absent statutory\\nambiguity, the government may not invoke Chevron to shield agency reasoning\\nfrom judicial scrutiny. Id.; Orellana-Monson, 685 F.3d at 517.\\n The text of § 1227(a)(2)(C) is neither vague nor unclear. Rather, it\\nunambiguously renders a large number of firearms convictions grounds for\\ndeportation. The provision applies to any alien, including legal permanent\\nresidents, convicted of “purchasing, selling, offering for sale, exchanging,\\nusing, owning, possessing, or carrying . . . a firearm or destructive device,” or\\n“of attempting or conspiring” to commit any of these offenses. 8 U.S.C.\\n§ 1227(a)(2)(C). Contrary to the government’s position, however, the statute\\ndoes not state that “any type of firearm offense” is a basis for deportation. Nor\\ndoes the statute on its face reach “the entire panoply of firearms offenses.”\\nFlores-Abarca, 26 I & N Dec. at 923 (quotation omitted). If that were Congress’s\\nintent, it could easily have said so. The same statute, for example, renders\\ndeportable any alien convicted of violating “any law or regulation of a State,\\nthe United States, or a foreign country relating to a controlled substance (as\\n 7\\n\\f Case: 17-60236 Document: 00515081008 Page: 8 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\ndefined in section 802 of Title 21),” with a narrow exception for personal\\nmarijuana possession. 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added).\\n Congress could have used the same language to render deportable any\\nalien convicted of violating any law “relating to” a firearm. Instead, Congress\\nchose to enumerate a list of offenses. See Dep’t of Homeland Security v.\\nMacLean, 135 S. Ct. 913, 919 (2015) (explaining that “Congress generally acts\\nintentionally when it uses particular language in one section of a statute but\\nomits it in another”). Reflecting that choice, the provision is titled “Certain\\nfirearm offenses.” See Yates v. United States, 135 S. Ct. 1074, 1083 (2015)\\n(explaining that while “headings are not commanding, they supply cues” as to\\nthe intended scope of a statute).\\n Notably, despite the expansive language of the controlled substance\\nprovision, the Supreme Court has declined to hold that Congress intended to\\ndeport every alien convicted of a drug offense. In Mellouli v. Lynch, the\\ngovernment argued that “aliens who commit drug crimes in States whose drug\\nschedules substantially overlap the federal schedules are removable, for state\\nstatutes that criminalize hundreds of federally controlled drugs and a handful\\nof similar substances, are laws relating to federally controlled substances.” 135\\nS. Ct. 1980, 1989 (2015) (quotation omitted). The Court rejected this\\nconstruction of § 1227(a)(2)(B)(i), explaining that “[t]his sweeping\\ninterpretation departs so sharply from the statute’s text and history that it\\ncannot be considered a permissible reading.” Id. at 1990. The Court also\\nrefused to adopt the BIA’s view that the statute covers all drug paraphernalia\\nconvictions on the grounds that drug paraphernalia statutes relate to “the drug\\ntrade in general.” Id. at 1988–89. The Court instead held that, “to trigger\\nremoval under § 1227(a)(2)(B)(i), the Government must connect an element of\\nthe alien’s conviction to a drug ‘defined in [§ 802].’” Id. at 1991.\\n\\n\\n 8\\n\\f Case: 17-60236 Document: 00515081008 Page: 9 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n The same logic applies here. A firearm conviction cannot trigger\\ndeportation or ineligibility for cancellation of removal under § 1227(a)(2)(C)\\nunless it fits within one of the statutorily enumerated offenses. This\\nconstruction is consistent with our prior applications of this statute, as well as\\nthat of other circuits. See Segovia-Rivas v. Lynch, 643 F. App’x 367, 369 (5th\\nCir. 2016) (holding that a conviction for “Attempted Deadly Conduct—\\nDischarge of a Firearm” is categorically an offense covered by § 1227(a)(2)(C)\\nbecause “[d]ischarging a firearm clearly involves use of a firearm”) (emphasis\\nadded); Aybar-Alejo v. INS, 230 F.3d 487, 488–89 (1st Cir. 2000) (explaining\\nthat a conviction for firearm possession under Rhode Island law is not broader\\nthan possession under federal law); Lopez-Amaro v. INS, 25 F.3d 986, 989–90\\n(11th Cir. 1994) (holding that “first degree murder with a pistol” qualifies as\\n“using a firearm in violation of any law”).\\n The government contends that several other circuits have interpreted\\n§ 1227(a)(2)(C) more expansively to “embrace the entire panoply of firearms\\noffenses.” Valerio-Ochoa, 241 F.3d at 1095; see also Kuhali v. Reno, 266 F.3d\\n93, 103 (2d Cir. 2001); Hall v. INS, 167 F.3d 852, 855 (4th Cir. 1999). The cases\\ncited do include some broad language regarding the scope of the firearms\\nprovision. But our sister circuits took care to locate the petitioner’s particular\\nconviction within one of the enumerated offenses. See Valerio-Ochoa, 241 F.3d\\nat 1095–96 (explaining that a conviction for “willfully discharg[ing] a firearm”\\nclearly “qualifies as ‘using’ a firearm under 8 U.S.C. § 1227(a)(2)(C)”); Kuhali,\\n266 F.3d at 105 (finding that exporting firearms without a license involves\\n“possessing” a firearm because “the power to send or take a commodity out of\\nthe country necessarily implies—because of the exercise of dominion or\\ncontrol—at least constructive possession”); Hall, 167 F.3d at 856 (holding that\\na conviction for making false statements in connection with the acquisition of\\na firearm was a conviction for “purchasing or attempting to purchase” a firearm\\n 9\\n\\f Case: 17-60236 Document: 00515081008 Page: 10 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nunder § 1227(a)(2)(C) because the petitioner “participated in and enabled an\\nunlawful purchase of a firearm”). These cases do not stand for the proposition\\nthat either the BIA or the courts are free to disregard the statute’s list of\\nenumerated offenses.\\n Despite its own broad language, the BIA similarly went on to consider\\nwhether Flores Abarca’s firearm transportation offense is a conviction for\\n“possessing” a firearm under § 1227(a)(2)(C). See Flores-Abarca, 26 I & N Dec.\\nat 923. We now review that determination.\\n C.\\n Flores Abarca is ineligible for cancellation of removal if he was “convicted\\nunder any law of . . . possessing . . . a firearm or destructive device.” 8 U.S.C.\\n§ 1227(a)(2)(C). The BIA held that Flores Abarca “necessarily had constructive\\n‘possession’ of the firearm” when he “knowingly and willfully transported” it in\\nhis vehicle, and “conclude[d] that the crime of transporting a loaded firearm\\nunder Oklahoma law is categorically a firearms offense under the Act.” Flores-\\nAbarca, 26 I&N Dec. at 923–24. Our analysis of federal and Oklahoma law\\ncompels a different conclusion.\\n Like the BIA, we must analyze Flores Abarca’s conviction under the\\ncategorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 192 (2013);\\nSegovia-Rivas, 643 F. App’x at 369. “Because Congress predicated deportation\\non convictions, not conduct, the approach looks to the statutory definition of\\nthe offense of conviction, not to the particulars of an alien’s behavior.” Mellouli,\\n135 S. Ct. at 1986 (quotation omitted). “[A] state offense is a categorical match\\nwith a generic federal offense only if a conviction of the state offense\\nnecessarily involved facts equating to the generic federal offense.” Moncrieffe,\\n569 U.S. at 190 (cleaned up). “[W]e are to look to the conviction itself as our\\nstarting place, not to what might have or could have been charged.” Carachuri-\\nRosendo v. Holder, 560 U.S. 563, 576 (2010). In the context of a guilty plea, a\\n 10\\n\\f Case: 17-60236 Document: 00515081008 Page: 11 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nconviction is a categorical match “only if the defendant ‘necessarily admitted\\n[the] elements of the generic offense.’” Descamps v. United States, 570 U.S. 254,\\n262 (2013) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).\\n Because we find that § 1227(a)(2)(C) “is unambiguous according to its\\nplain language with respect to the question presented,” we review the BIA’s\\nlegal conclusions de novo. Miresles-Zuniga v. Holder, 743 F.3d 110, 112 (5th\\nCir. 2014). We also review de novo the BIA’s interpretation of Flores Abarca’s\\nOklahoma offense, as “[d]etermining a particular federal or state crime’s\\nelements lies beyond the scope of the BIA’s delegated power or accumulated\\nexpertise.” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002); see also\\nSarmientos v. Holder, 742 F.3d 624, 627 (5th Cir. 2014) (“[N]o deference is\\nafforded in reviewing the BIA’s interpretation of state criminal law.”).\\n We first outline the elements of the generic federal offense of unlawful\\nfirearm possession. Under federal law, “possession” includes constructive\\npossession. See Henderson v. United States, 135 S. Ct. 1780, 1784 (2015); see\\nalso Aybar-Alejo, 230 F.3d at 488–89 (collecting cases). “Actual possession\\nexists when a person has direct physical control over a thing,” whereas\\n“[c]onstructive possession is established when a person, though lacking such\\nphysical custody, still has the power and intent to exercise control over the\\nobject.” Henderson, 135 S. Ct. at 1784. Yet mere possession of a firearm is not\\na criminal offense. 2 See District of Columbia v. Heller, 554 U.S. 570, 636 (2008).\\n“Assuming compliance with ordinary licensing requirements, the possession of\\na gun can be entirely innocent.” Rehaif v. United States, 139 S. Ct. 2191, 2197\\n(2019). The plain meaning of “possessing . . . a firearm . . . in violation of any\\n\\n\\n\\n\\n 2 Although Congress has restricted the rights of unlawfully present aliens to\\npossess firearms, the offenses listed in § 1227(a)(2)(C) apply to any alien, including legal\\npermanent residents. See, e.g., Valerio-Ochoa, 241 F.3d at 1094.\\n 11\\n\\f Case: 17-60236 Document: 00515081008 Page: 12 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nlaw” under § 1227(a)(2)(C) therefore requires that the possession be in some\\nrespect unlawful.\\n The parties agree that the elements of Flores Abarca’s Oklahoma offense\\nare: (1) knowingly; (2) willfully; (3) transporting; (4) a specified firearm; (5)\\nthat is loaded; (6) in the interior/(locked exterior compartment)/trunk; (7) of a\\nmotor vehicle; (8) on a public highway or roadway. See Okla. Unif. Jury Instr.\\nCR 6-37A; see also Flores-Abarca, 26 I & N Dec. at 923. These elements do not\\ninclude possession, much less unlawful possession. 3 On its face, the statute is\\ntherefore not a categorical match to the generic federal offense of unlawful\\nfirearm possession. See Moncrieffe, 569 U.S. at 190.\\n To resist this conclusion, the government argues that Flores Abarca’s act\\nof transporting a loaded firearm necessarily encompassed the possession or\\nconstructive possession of a firearm. The parties have not briefed the issue of\\nwhether an element of possession is sufficient to transform a conviction for a\\ndifferent firearms offense into a conviction for possessing a firearm within the\\nmeaning of § 1227(a)(2)(C). We have some doubts about this assumption. 4 Even\\naccepting the government’s framing of the issue, however, it is not the case\\nthat the Oklahoma offense of transporting a loaded firearm requires that the\\ndefendant actually or constructively possess a firearm.\\n\\n\\n\\n\\n 3 Oklahoma law recognizes separate offenses of unlawful firearm possession.\\nSee, e.g., OKLA. STAT. tit. 21 § 1280.1 (possession of a firearm on school property); § 1283\\n(possession of a firearm by a convicted felon). A conviction for one of these offenses does\\nrequire proof of possession. See Okla. Unif. Jury Instr. CR 6-37 (outlining the elements of\\n“unlawful possession of a firearm” as (1) knowing; (2) willful; (3) possession of/having under\\none’s immediate control; (4) a specified firearm; and (5) the specific ground for unlawfulness).\\n 4 We note that construing a conviction for “possessing” a firearm under\\n§ 1227(a)(2)(C) to include firearm convictions involving lawful possession plus an illegal act\\nmight render superfluous many of the other enumerated offenses, including “using,” and\\n“carrying” a firearm. See Bailey v. United States, 516 U.S. 137, 146 (1995) (adopting a limited\\nreading of “use” of a firearm to avoid creating redundancy with the term “carry”).\\n 12\\n\\f Case: 17-60236 Document: 00515081008 Page: 13 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n The term “transport” does not necessarily imply possession. The driver\\nof a vehicle can transport passengers and their possessions without having the\\n“power and intent to exercise control over” every object in the vehicle.\\nHenderson, 135 S. Ct. at 1784. As we have been clear, “dominion over the\\nvehicle . . . alone cannot establish constructive possession of a weapon found in\\nthe vehicle, particularly in the face of evidence that strongly suggests that\\nsomebody else exercised dominion and control over the weapon.” United States\\nv. Wright, 24 F.3d 732, 735 (5th Cir. 1994); see also United States v. Melancon,\\n662 F.3d 708, 713 (5th Cir. 2011) (“Where two people jointly occupy a space,\\ndominion over the space is not enough by itself to establish constructive\\npossession.”). Although knowledge of a firearm’s presence may be evidence of\\npossession, knowing transportation does not conclusively establish\\nconstructive possession as a matter of law. See Wright, 24 F.3d at 735\\n(explaining that “whether constructive possession exists is not a scientific\\ninquiry” and requires “a common sense, fact-specific approach”); United States\\nv. Crain, 33 F.3d 480, 486–87 (5th Cir. 1994) (finding insufficient evidence that\\ndefendant driver exercised constructive possession over drugs found in the\\nvehicle).\\n Oklahoma’s criminal prohibition against transporting loaded firearms in\\nvehicles clearly extends to firearms possessed by passengers. At the time of\\nFlores Abarca’s offense, the relevant statute read as follows:\\n Except as otherwise provided by . . . another provision of law\\n of this state, it shall be unlawful to transport a loaded pistol, rifle,\\n or shotgun in any landborne motor vehicle over a public highway\\n or roadway. However, a rifle or shotgun may be transported when\\n clip or magazine loaded and not chamber loaded when transported\\n in an exterior locked compartment of the vehicle or trunk of the\\n vehicle.\\n\\n Any person convicted of a violation of this section shall be\\n punished as provided in Section 1289.15 of this title.\\n 13\\n\\f Case: 17-60236 Document: 00515081008 Page: 14 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n\\n\\n Any person who is the operator of a vehicle or is a passenger\\n in any vehicle wherein another person who is licensed pursuant to\\n the Oklahoma Self-Defense Act, Sections 1 through 25 of this act,\\n to carry a concealed handgun and is carrying a concealed handgun\\n or has concealed the handgun in such vehicle, shall not be deemed\\n in violation of the provisions of this section provided the licensee\\n is in or near the vehicle.\\n\\nOKLA. STAT. tit. 21 § 1289.13 (2003).\\n The statute’s final paragraph protects a driver from liability if his\\npassenger has a concealed carry license. But a driver would have no such safe\\nharbor if he knowingly gave a ride to an armed passenger who lacked a\\nconcealed carry license. Even in cases where a defendant does have possession\\nof a firearm as a factual matter, Oklahoma is never required to prove\\npossession or constructive possession to obtain a conviction under this statute.\\nFlores Abarca thus did not “necessarily admit[] the elements of the generic\\noffense” of unlawful firearm possession by pleading guilty to this Oklahoma\\ntransportation offense. Descamps, 570 U.S. at 262 (quotation omitted).\\n The BIA’s contrary conclusion relied on a statement in United States v.\\nBass, that “virtually all transportations, whether interstate or intrastate,\\ninvolve an accompanying possession or receipt.” 404 U.S. 336, 340 (1971);\\nFlores-Abarca, 26 I & N Dec. at 924. This factual observation regarding the\\nfrequent overlap between transportation and possession offenses does not alter\\nour analysis. The question presented in Bass was whether the federal\\nprohibition on felons possessing, receiving, or transporting firearms requires\\nproof of a connection to interstate commerce in every case. 404 U.S. at 339. The\\nCourt held that “the phrase ‘in commerce or affecting commerce’ is part of all\\nthree offenses” rather than modifying only the transport offense. Id. at 347.\\nThe Supreme Court did not hold that the prohibition against felons\\ntransporting a firearm is redundant of the prohibition against possession, nor\\n 14\\n\\f Case: 17-60236 Document: 00515081008 Page: 15 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nthat all federal transportation offenses require proof of possession. 5 Such\\nholdings would have been consequential for federal criminal law, increasing\\nthe government’s burden of proof in transportation prosecutions and\\nintroducing redundancy in the federal criminal code. See, e.g., 18 U.S.C.\\n§ 922(g), (h)(1), (k). But that was not the issue presented in Bass, and it is not\\nthe issue the Court decided.\\n Importantly, the Supreme Court’s later decision in Muscarello v. United\\nStates, 524 U.S. 125 (1998), makes clear that transportation offenses remain\\ndistinct from possession offenses. The Court in Muscarello held that the phrase\\n“carries a firearm” in 18 U.S.C. § 924(c)(1) “applies to a person who knowingly\\npossesses and conveys firearms in a vehicle, including in the locked glove\\ncompartment or trunk of a car, which the person accompanies.” Id. at 126–27.\\nIn a dissenting opinion, Justice Ginsburg argued that this definition better\\ndescribes the term “transport” than the term “carry.” Id. at 146–48. 6 She noted\\nthat other federal statutes use the term “transport” rather than “carry” to\\n“describ[e] when and how a person may travel in a vehicle that contains his\\nfirearms.” Id. at 146–47 (citing 18 U.S.C §§ 925(a)(2)(B) and 926A). A majority\\nof the Court disagreed, explaining that its “definition does not equate ‘carry’\\nand ‘transport.’” Id. at 134. “‘Carry’ implies personal agency and some degree\\n\\n\\n\\n 5 We were not aided by the government’s briefing on this point, which incorrectly\\nattributed language from Malilia v. Holder, 632 F.3d 598, 604 (9th Cir. 2011) to Bass itself.\\nThis inaccurate citation was inquired into, but not corrected, at oral argument. We should\\nnot need to remind the government that, although we are bound by the precedent of the\\nSupreme Court, we are not bound by another circuit’s interpretation of that precedent. In\\nany event, we do not find support in Bass for the proposition that “establishing that a firearm\\ntraveled interstate necessarily requires some element of possession.” Malilia, 632 F.3d at\\n604. We similarly part ways with the Second Circuit’s interpretation of Bass to imply an\\nelement of possession in transportation offenses. See Kuhali, 266 F.3d at 105.\\n 6 The Eighth Circuit expressed a similar view in a case predating Muscarello.\\nSee United States v. Richards, 967 F.2d 1189, 1195 (8th Cir. 1992) (construing “the ordinary\\nmeaning of the term ‘transport’ . . . as involving an element of possession and an element of\\nmovement”).\\n 15\\n\\f Case: 17-60236 Document: 00515081008 Page: 16 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\nof possession, whereas ‘transport’ does not have such a limited connotation and,\\nin addition, implies the movement of goods in bulk over great distances.” Id.\\n(emphasis added).\\n This distinction is fully consistent with our construction of the Oklahoma\\nstatute at issue in this case. Although carrying a firearm requires “some degree\\nof possession,” transporting a firearm does not. Id. The government attempts\\nto distinguish Muscarello by arguing that the Supreme Court understood\\n“transport” to refer only to the “movement of goods in bulk,” whereas Flores\\nAbarca’s Oklahoma transportation offense is more akin to “carrying.” Id. This\\nargument is unavailing. The Supreme Court discussed several statutes that\\napply the term “transport” to single firearms. See id. at 134–36; see also 18\\nU.S.C § 924(b) (imposing criminal penalties on someone who “transports . . . a\\nfirearm” with intent to commit a felony). Notably, the statute most central to\\nthe disagreement between the majority and the dissent, 18 U.S.C. § 926A, uses\\nthe term “transport” in precisely the same context as the Oklahoma statute at\\nissue here. See id. (providing that individuals are “entitled to transport a\\nfirearm for any lawful purpose,” so long as “during such transportation the\\nfirearm is unloaded” and not “directly accessible from the passenger\\ncompartment of such transporting vehicle”). The Court specifically addressed\\n§ 926A and reiterated its conclusion that “the word ‘transport’ is broader than\\nthe word ‘carry.’” Muscarello, 524 U.S. at 135. We have no basis to conclude\\nthat the term “transport” has a different meaning under Oklahoma law than\\nunder federal law. 7\\n\\n\\n\\n 7 The government represented at oral argument that its briefing and the BIA’s\\nopinion had relied on Oklahoma caselaw interpreting transportation to require an element\\nof constructive possession. As the government commendably acknowledged in a post-\\nargument letter to the court, this representation was mistaken. The government’s letter\\nbelatedly points us to a decision from the Oklahoma Court of Criminal Appeals, Allen v. State,\\n871 P.2d 79 (Okla. Crim. App. 1994), as support for its position. We emphasize that “[t]he\\n 16\\n\\f Case: 17-60236 Document: 00515081008 Page: 17 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n We acknowledge that our analysis is in tension with the outcome reached\\nby the Eighth Circuit in Awad v. Gonzales, 494 F.3d 723 (8th Cir. 2007). Awad,\\na legal permanent resident and “a sport hunter lawfully hunting,” was cited\\nfor transporting a loaded hunting rifle in his vehicle. Id. at 724. The BIA held\\nthat this misdemeanor game and fish law violation rendered Awad deportable\\nunder § 1227(a)(2)(C). Id. at 724–25. Awad petitioned for review, arguing that\\nhis hunting rifle fell within an exception to the federal definition of a firearm.\\nId. at 725. The court rejected this argument and affirmed. Id. at 726–27. The\\nissue of whether § 1227(a)(2)(C) encompasses transportation offenses was\\napparently not raised before the Eighth Circuit, and the court did not squarely\\naddress it. Instead, the court deferred to the BIA without examining the\\nspecific offenses enumerated in § 1227(a)(2)(C) or identifying any ambiguity in\\nthe statutory language. Id. at 725. We therefore do not find Awad persuasive\\nas to the question presented in this appeal.\\n In sum, we hold that Flores Abarca’s misdemeanor conviction for\\nunlawfully transporting a loaded firearm in a motor vehicle does not include\\nunlawful possession as a necessary element and does not categorically match\\nan offense listed under 8 U.S.C. § 1227(a)(2)(C).\\n\\n\\n\\n\\nproper time to closely examine the record and develop legal defenses is before the completion\\nof briefing,” not after oral argument. United States v. Arellano-Banuelos, 912 F.3d 862, 865\\nn.2 (5th Cir. 2019). Even if the government’s new argument were properly before us, it would\\nnot affect our conclusion. The defendant in Allen was charged with “carrying a loaded\\nfirearm.” 871 P.2d at 102. The Oklahoma Court of Criminal Appeals reversed this conviction,\\nexplaining that simple possession of a firearm is not a crime. Id. at 103. To constitute a crime,\\nthe “carrying” must be unlawful in some additional way, such as “carrying a loaded firearm\\nin a vehicle” or “carrying any firearm after conviction of a felony.” Id. The Oklahoma court\\ndid not, however, hold that “carrying” a firearm is the only means to commit the offense of\\nunlawful transportation of a firearm in a motor vehicle. Rather, its decision is consistent with\\nthe proposition that “‘transport’ is a broader category that includes ‘carry’ but also\\nencompasses other activity.” Muscarello, 524 U.S. at 135.\\n 17\\n\\f Case: 17-60236 Document: 00515081008 Page: 18 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n D.\\n Finally, we address the BIA’s view that omitting firearm transportation\\noffenses from the scope of § 1227(a)(2)(C) is “illogical” and inconsistent with\\nlegislative history. Flores-Abarca, 26 I&N Dec. at 924. The BIA observes that,\\nin the original version of the statute, “only the crimes of ‘possessing or carrying’\\na firearm were a basis for deportation.” Id. “Subsequent legislation expanded\\nthe deportable offenses to the current extensive list of crimes, as well as\\nattempts and conspiracies to commit them.” Id. This history, however, can be\\nread in multiple ways. On the one hand, Congress may have wished to expand\\nthe reach of § 1227(a)(2)(C) to cover all firearms offenses, and simply neglected\\nto include the term “transporting” when amending the statute. Such an\\noversight would be somewhat surprising, as federal criminal law extensively\\nregulates the transportation of firearms. See, e.g., 18 U.S.C. § 922(a)(1)–(5), (i),\\n(n), § 924(b). On the other hand, Congress may have made a deliberate choice\\nto add some firearms offenses but not others. Regardless, “[w]e cannot replace\\nthe actual text with speculation as to Congress’ intent.” Magwood v. Patterson,\\n561 U.S. 320, 334 (2010).\\n Nor can we substitute either the BIA’s policy views or our own judgment\\nfor that of Congress. See Rodriguez v. United States, 480 U.S. 522, 525–26\\n(1987). Congress clearly intended to render deportable most aliens convicted of\\ngun crimes, but it chose to effectuate this goal by specifying a list of offenses.\\n“Legislation is, after all, the art of compromise, the limitations expressed in\\nstatutory terms often the price of passage, and no statute yet known pursues\\nits stated purpose at all costs.” Henson v. Santander Consumer USA Inc., 137\\nS. Ct. 1718, 1725 (2017) (cleaned up). We must therefore “presume that a\\nlegislature says in a statute what it means and means in a statute what it says\\nthere.” Connecticut National Bank v. Germain, 503 U.S. 249, 253–54 (1992).\\n\\n\\n 18\\n\\f Case: 17-60236 Document: 00515081008 Page: 19 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n “[W]hen the statute’s language is plain, the sole function of the courts—\\nat least where the disposition required by the text is not absurd—is to enforce\\nit according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters\\nBank, N.A., 530 U.S. 1, 6 (2000) (cleaned up). Here, a plain reading of the\\nstatute produces no absurd results. The BIA maintains that it would be\\n“illogical to hold that unlawful possession of a loaded firearm would fall within\\nthe scope of [§ 1227(a)(2)(C)] but that unlawfully transporting the same\\nweapon would not.” Flores-Abarca, 26 I&N Dec. at 924. We disagree. As\\npreviously emphasized, firearms are not inherently illicit. An individual can\\ncommit a transportation offense even if transporting a legally-owned firearm\\nfrom one lawful location to another, for an entirely lawful purpose. See, e.g.,\\nAwad, 494 F.3d at 724 (noting that Awad was “a sport hunter lawfully hunting”\\nwhen he was cited for transporting a loaded hunting rifle). Moreover, mere\\ntransportation lacks the elements of unlawful possession or use that can make\\nfirearm offenses particularly dangerous. See, e.g., Muscarello, 524 U.S. at 135–\\n36 (noting that Congress “impose[d] a less strict sentencing regime” on firearm\\ntransport offenses under 18 U.S.C. § 924(b) than firearm carrying offenses\\nunder § 924(c)).\\n It is thus rational for Congress to treat unlawful firearm transportation\\ndifferently from unlawful possession. We also note that § 1227(a)(2)(C) is not\\nthe sole removal provision applicable to firearms offenses. Congress has\\nseparately designated certain serious firearm transportation offenses as\\naggravated felonies, including transporting a firearm with the intent to\\ncommit a felony. See 8 U.S.C. § 1101(43)(E)(ii); see also 18 U.S.C. § 922(g)(1)–\\n(5); § 922(n); § 924(b). An alien convicted of one of these offenses is deportable\\nunder § 1227(a)(2)(A)(iii), notwithstanding our construction of § 1227(a)(2)(C).\\nThe statutory scheme as a whole does not create any illogical gaps in\\nimmigration enforcement.\\n 19\\n\\f Case: 17-60236 Document: 00515081008 Page: 20 Date Filed: 08/19/2019\\n\\n\\n\\n No. 17-60236\\n IV.\\n Flores Abarca’s Oklahoma firearm transportation conviction is not an\\noffense under 8 U.S.C. § 1227(a)(2)(C) and does not render him statutorily\\nineligible for cancellation of removal. In light of this holding, we need not reach\\nthe question of whether the BIA abused its discretion in denying Flores\\nAbarca’s motions for reconsideration and remand.\\n We GRANT the petition for review, VACATE the decision of the BIA,\\nand REMAND for further proceedings not inconsistent with this opinion.\\n\\n\\n\\n\\n 20\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3679,"cells":{"id":{"kind":"number","value":4649549,"string":"4,649,549"},"name":{"kind":"string","value":"MUNICIPAL EMPLOYEES' RETIREMENT SYSTEM OF MICHIGAN, Plaintiff - Appellant, v. PIER 1 IMPORTS, INCORPORATED; Alexander W. Smith ; Charles H. Turner, Defendants - Appellees."},"name_abbreviation":{"kind":"string","value":"Mun. Employees' Ret. Sys. of Mich. v. Pier 1 Imports, Inc."},"decision_date":{"kind":"string","value":"2019-08-19"},"docket_number":{"kind":"string","value":"18-10998"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Smith, Wiener, Elrod\", \"parties\": \"\", \"opinions\": [{\"author\": \"JENNIFER WALKER ELROD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-10998 Document: 00515082201 Page: 1 Date Filed: 08/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 19, 2019\\n No. 18-10998\\n Lyle W. Cayce\\n Clerk\\nMUNICIPAL EMPLOYEES’ RETIREMENT SYSTEM OF MICHIGAN,\\n\\n Plaintiff – Appellant,\\n\\nv.\\n\\nPIER 1 IMPORTS, INCORPORATED; ALEXANDER W. SMITH; CHARLES\\nH. TURNER,\\n\\n Defendants – Appellees.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nJENNIFER WALKER ELROD, Circuit Judge:\\n “Fashion changes,” says Coco Chanel, “but style endures.” 1 In this\\nsecurities fraud case, a class of investors alleges, among other things, that Pier\\n1 Imports, Inc. is a “trend-based fashion retailer” whose inventory carried a\\nsignificant markdown risk that the company’s executives failed to disclose.\\nBecause we conclude that Pier 1 operates largely in the sturdier business of\\nstyle and that the investors failed to adequately plead scienter, we AFFIRM.\\n\\n\\n\\n 1 The world according to Coco Chanel, Harper’s Bazaar (Aug. 12, 2017),\\nhttps://www.harpersbazaar.com/uk/fashion/fashion-news/news/a31524/the-world-according-\\nto-coco-chanel/.\\n\\f Case: 18-10998 Document: 00515082201 Page: 2 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n I.\\n Pier 1 Imports, Inc., is a Fort Worth-based retailer that sells home\\nfurnishings at more than 1,000 stores in the United States and Canada and\\nthrough its website. In 2007, in the wake of seven consecutive quarterly losses\\nand total losses of $227 million for that fiscal year, Pier 1 tapped defendant\\nAlex Smith as its new CEO. Smith, working with defendant Charles Turner,\\nPier 1’s CFO, had significantly improved the company’s financial position by\\n2009. At that point, however, Pier 1 faced new pressure to respond to consumer\\ndemand for on-line shopping. To enter this market, in August 2012, Smith and\\nTurner launched an initiative called “1 Pier 1,” which would allow customers\\nto shop on-line and have their purchases either shipped to their homes or\\npicked up without shipping charges at Pier 1’s U.S. stores.\\n The 1 Pier 1 initiative did not go as planned. Pier 1’s stock plummeted\\nfrom $18.57 on April 28, 2014, to $4.75 on December 17, 2015—a drop of almost\\n75 percent. Disappointed, a class of investors who had purchased Pier 1’s stock\\nbetween April 10, 2014, and December 17, 2015 (the “Class Period”), brought\\nthis lawsuit, claiming that Pier 1, Smith, and Turner (collectively, “the\\ncompany”) illegally hid and misrepresented information that, once disclosed,\\ncaused this stock-price tailspin.\\n Specifically, the complaint alleges that, while carrying out the 1 Pier 1\\ninitiative, the company failed to tell investors about significant “markdown\\nrisk”—the risk that Pier 1 had so much inventory that it could get rid of it only\\nby lowering prices dramatically. According to the investors, this markdown\\nrisk was exacerbated by the fact that Pier 1’s “seasonal” and “specialty fashion”\\nproducts are “subject to changing consumer tastes.” The investors allege that\\nPier 1’s distribution channels were so severely “flooded with excess\\nmerchandise” that the company had to employ outside labor and third parties\\nto manage it. To keep up, the investors note, Pier 1 made nondiscretionary,\\n 2\\n\\f Case: 18-10998 Document: 00515082201 Page: 3 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\ncapital-improvement expenditures that were almost seven times higher than\\nthe yearly average for the ten previous years.\\n According to the investors’ amended complaint, Pier 1 did not start to\\ntell investors about the existence and magnitude of its markdown risk until\\nthe company made a series of “partial corrective disclosures” in 2015. On\\nFebruary 10, 2015, Pier 1 announced that it had higher costs because of\\n“unplanned supply chain expenses” and announced the departure of Turner as\\nCFO. In response to these disclosures, the price of Pier 1’s stock fell 25 percent\\novernight—from $16.97 per share on February 10, 2015, to $12.84 per share\\non February 11, 2015.\\n The investors allege that, during the months that followed, Pier 1 made\\nadditional misrepresentations and omissions, telling investors that Pier 1’s\\ninventory complexion was “clean,” “healthy,” and did “not pose a significant\\nimmediate markdown risk.” On September 24, 2015, however, Pier 1\\nannounced that its inventory had caused “issues” within its supply chain, that\\nthere were “inventory related inefficiencies within the Company’s distribution\\ncenter network,” and that it needed to turn to clearance activity to sell off the\\nextra inventory. The investors allege that, in response to these\\nannouncements, Pier 1’s stock price fell by more than 12 percent—from $8.67\\nper share on September 24, 2015, to $7.61 per share on September 25, 2015.\\n The investors further allege that on December 16, 2015—the\\npenultimate day of the Class Period—Pier 1 announced that it would take at\\nleast eighteen months before inventory levels would be in line with actual\\ndemand. Pier 1’s interim CFO, Laura Coffey, also disclosed that only four of\\nthe company’s six distribution centers were operating with “acceptable levels\\nof efficiencies.” The investors allege that, in response to these disclosures, Pier\\n1’s shares again plummeted by 20 percent in one day—from $5.95 per share on\\nDecember 16, 2015, to $4.75 on December 17, 2015.\\n 3\\n\\f Case: 18-10998 Document: 00515082201 Page: 4 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n The investors filed their complaint in the Northern District of Texas,\\nasserting that Pier 1 and its executives violated § 10(b) of the Securities\\nExchange Act and SEC Rule 10b-5 by failing to disclose Pier 1’s significant\\nmarkdown risk. See 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5. Pier 1 moved to\\ndismiss under Federal Rule of Civil Procedure 12(b)(6). The district court\\ngranted the motion, finding that the investors failed to plead facts that would\\nsupport a strong inference of scienter, the required mental state for these\\nclaims. The court allowed the investors to amend their complaint to fix this\\ndefect.\\n After the investors filed an amended complaint, Pier 1 again moved to\\ndismiss. This time, the district court dismissed the case with prejudice,\\nconcluding that “[a]lthough [the investors] ha[d] made substantial changes to\\n[their] pleading in an attempt to cure the deficiencies identified in [the\\nprevious] Order, . . . the Amended Complaint still fail[ed] to plead the requisite\\nstrong inference of scienter.” The investors appealed.\\n II.\\n We review de novo a district court’s dismissal of a civil complaint. Barrie\\nv. Intervoice-Brite, Inc., 397 F.3d 249, 254 (5th Cir. 2005). To survive a Rule\\n12(b)(6) motion to dismiss, a plaintiff’s complaint must comply with the\\nfamiliar Twombly/Iqbal standard, which requires the complaint to contain\\nsufficient factual matter to state a claim for relief that is plausible on its face.\\nSee Emps.’ Ret. Sys. v. Whole Foods Mkt., Inc., 905 F.3d 892, 899 (5th Cir.\\n2018). Because the investors allege securities fraud, their amended complaint\\nmust also satisfy Federal Rule of Civil Procedure 9(b), which requires that a\\nplaintiff “state with particularity the circumstances constituting fraud or\\nmistake.” Under Rule 9(b), “a plaintiff must ‘identify the time, place, and\\ncontents of the false representations, as well as the identity of the person\\nmaking the misrepresentation and what that person obtained thereby.’” Whole\\n 4\\n\\f Case: 18-10998 Document: 00515082201 Page: 5 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nFoods, 905 F.3d at 899 (alteration omitted) (quoting Owens v. Jastrow, 789\\nF.3d 529, 535 (5th Cir. 2015)).\\n To state a claim under § 10(b) of the Securities Exchange Act and SEC\\nRule 10b-5, a plaintiff must allege: (1) a material misrepresentation or\\nomission; (2) scienter (a “wrongful state of mind”); (3) a connection with the\\npurchase or sale of a security; (4) reliance; (5) economic loss; and (6) a “causal\\nconnection between the material misrepresentation and the loss.” Dura\\nPharm., Inc. v. Broudo, 544 U.S. 336, 341–42 (2005). To impute liability to\\nSmith and Turner—the alleged “control persons” of Pier 1 under § 20(a) of the\\nSecurities Exchange Act—the investors had to show a “primary violation”\\nunder § 10(b): If the § 10(b) claim is inadequate, then so is the § 20(a) claim.\\nSouthland Sec. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 383 (5th Cir.\\n2004). Allegations under § 10(b) and Rule 10b-5 must comply with the Private\\nSecurities Litigation Reform Act (PSLRA), which requires plaintiffs to “specify\\neach statement alleged to have been misleading, the reason or reasons why the\\nstatement is misleading, and, if an allegation regarding the statement or\\nomission is made on information and belief, . . . state with particularity all\\nfacts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(1). In pleading\\nscienter, plaintiffs must “state with particularity facts giving rise to a strong\\ninference that the defendant acted with the required state of mind.” Id. § 78u-\\n4(b)(2)(A).\\n III.\\n We agree with the district court that the investors have failed to plead a\\n“strong inference” of scienter. Scienter is a “mental state embracing intent to\\ndeceive, manipulate, or defraud.” Tellabs, Inc. v. Makor Issues & Rights, Ltd.,\\n551 U.S. 308, 319 (2007) (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185,\\n193 n.12 (1976)). Both intent and “severe recklessness” are sufficient.\\nNathenson v. Zonagen, Inc., 267 F.3d 400, 408–09 (5th Cir. 2001). Plaintiffs\\n 5\\n\\f Case: 18-10998 Document: 00515082201 Page: 6 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nproperly plead scienter when they allege that a company knowingly or\\nrecklessly made statements to the market while aware of facts that, if not\\ndisclosed, would render those statements misleading. See Plotkin v. IP Axess\\nInc., 407 F.3d 690, 696–97 (5th Cir. 2005).\\n The investors raise two challenges to the district court’s dismissal of\\ntheir original and amended complaints: (1) that in dismissing their original\\ncomplaint, the district court improperly analyzed their scienter allegations;\\nand (2) that the scienter allegations in their amended complaint were sufficient\\nto state a securities fraud claim. Neither argument persuades us that the\\ndistrict court erred.\\n A.\\n We have explained that a district court “may best make sense of scienter\\nallegations by first looking to the contribution of each individual allegation to\\na strong inference of scienter, especially in a complicated case[.]” Owens, 789\\nF.3d at 537. If any “single allegation, standing alone, create[s] a strong\\ninference of scienter,” then the court may stop there. Id. If it does not, then\\nthe district court must take “a holistic look at all the scienter allegations.” Id.\\n The investors contend that, in evaluating their original complaint, the\\ndistrict court failed to follow this analysis and instead analyzed all of their\\nallegations collectively under Diodes, which holds that, in four “special\\ncircumstances,” a defendant’s corporate title coupled with a severe problem\\nwithin the company sufficiently alleges scienter. Local 731 I.B. of T.\\nExcavators & Pavers Pension Tr. Fund v. Diodes, Inc., 810 F.3d 951, 959 (5th\\nCir. 2016). This was error, the investors argue, because Diodes does not apply\\nhere. They also complain that the district court failed to correct this error\\nwhen it dismissed their amended complaint. We disagree.\\n The district court’s order dismissing the original complaint first\\nconcluded that the investors failed to allege scienter because, inter alia,\\n 6\\n\\f Case: 18-10998 Document: 00515082201 Page: 7 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n(1) Smith and Turner lacked a motive to commit fraud; (2) Pier 1 “repeatedly\\ndisclosed . . . [its] increasing inventory, disappointing sales, and the risk of\\nmarkdowns”; and (3) the investors’ proffered “general accounts from\\nconfidential witnesses” did not support their scienter allegations. After\\nundertaking this evaluation of the investors’ allegations, the district court then\\nassessed whether Diodes applied and found that it did not because none of the\\nfour “special circumstances” were present here. This analysis did not run afoul\\nof our directives in Owens.\\n B.\\n We turn next to the investors’ amended complaint. The investors’\\nscienter theory relies on three categories of allegations: (1) allegations of\\nmotive; (2) allegations that Smith and Turner knew Pier 1 had high inventory;\\nand (3) allegations that Smith and Turner knew Pier 1 had significant\\nmarkdown risk. Each set of allegations falls short of creating the “strong\\ninference” of scienter required under the PSLRA.\\n 1.\\n “To demonstrate motive, plaintiffs must show ‘concrete benefits that\\ncould be realized by one or more of the false statements and wrongful\\nnondisclosures alleged.’” Ind. Elec. Workers’ Pension Tr. Fund IBEW v. Shaw\\nGrp., Inc., 537 F.3d 527, 543 (5th Cir. 2008) (quoting Phillips v. LCI Int’l, Inc.,\\n190 F.3d 609, 621 (4th Cir. 1999)). Motive is a critical—though not essential—\\naspect of a successful claim for securities fraud: “[A]llegations of motive . . .\\nmay enhance an inference of scienter[.]” Abrams v. Baker Hughes Inc., 292\\nF.3d 424, 434 (5th Cir. 2002). A failure to show motive means that “the\\nstrength of the circumstantial evidence of scienter must be correspondingly\\ngreater.” Neiman v. Bulmahn, 854 F.3d 741, 748 (5th Cir. 2017) (alteration\\nomitted) (quoting R2 Invs. LDC v. Phillips, 401 F.3d 638, 644 (5th Cir. 2005)).\\n\\n\\n 7\\n\\f Case: 18-10998 Document: 00515082201 Page: 8 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n The investors allege that Smith and Turner had two motives for\\nconcealing Pier 1’s markdown risk: (1) they “staked their careers” on 1 Pier 1,\\nwhich drove them to overstate the success of that initiative; and (2) their\\nemployment contracts promised them cash bonuses based on Pier 1’s earnings\\nbefore interest, tax, depreciation, and amortization. Neither motive finds\\nsupport in our precedent.\\n First, in Abrams, we held that a desire “to protect [one’s job in an]\\nexecutive position[]” was not “the type[] of motive that support[s] a strong\\ninference of scienter.” 292 F.3d at 434 (citing Melder v. URCARCO, 27 F.3d\\n1097, 1102 (5th Cir. 1994)). In the absence of “an allegation that the\\ndefendants profited from” the alleged fraud, an allegation of motive based on\\ncareer prospects is insufficient. Id. Therefore, the investors’ reliance on\\nSmith’s and Turner’s instincts for career survival fails to overcome the\\npleading hurdle.\\n As for the second motive allegation, we have held that “incentive\\ncompensation ‘can hardly be the basis on which an allegation of fraud is\\npredicated’” because “the vast majority of corporate executives” receive this\\ntype of compensation. Ind. Elec. Workers, 537 F.3d at 544 (quoting Tuchman\\nv. DSC Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)). However, in a\\nlimited set of circumstances—when the potential bonus is extremely high and\\nother allegations support an inference of scienter—performance-based\\ncompensation can establish motive. See Barrie, 397 F.3d at 261. In Barrie, the\\ndefendant received a performance-based bonus that was 175 percent of his base\\nsalary, and we held that his compensation package contributed to a strong\\ninference of scienter. Id.\\n But Barrie is not this case. Here, even the lowest possible performance-\\nbased bonuses that Smith and Turner could receive—which were only 11.5\\npercent and 8 percent of their respective base salaries—proved to be well out\\n 8\\n\\f Case: 18-10998 Document: 00515082201 Page: 9 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nof reach: Pier 1’s Fiscal Year 2015 earnings before interest, tax, depreciation,\\nand amortization were $60 million lower than the lowest target number in\\ntheir employment contracts. Although these contracts also included potential\\nbonuses as high as 288 percent and 200 percent of Smith’s and Turner’s base\\nsalaries, Pier 1’s earnings were $125 million shy of the target number for those\\nbonuses. Accordingly, because the likelihood that Smith and Turner would\\nactually receive these high-level bonuses was quite small, Barrie does not\\napply here. We reject the investors’ motive allegations as creating any\\ninference of scienter, much less a strong one.\\n 2.\\n The investors make the following allegations related to Smith’s and\\nTurner’s knowledge that Pier 1’s inventory was high:\\n (1) Smith made comments at an employee “town hall” meeting in\\n March 2014 admitting that the company overbought inventory;\\n (2) Smith knew of the company’s failure to meet its sales goals and\\n the resultant decision not to pay bonuses;\\n (3) Smith knew about the company’s “inventory problems” and, in\\n 2013, directed the company to end the use of temporary storage\\n at stores;\\n (4) Smith had a conversation with another executive regarding a\\n 1,000-container backlog at Pier 1’s Baltimore distribution\\n center;\\n (5) The company received regular contemporaneous reports on\\n sales figures, inventory, and purchases;\\n (6) Pier 1 had large inventory backlogs at its stores and\\n distribution centers; and\\n (7) Smith and Turner made Sarbanes-Oxley certifications of SEC\\n filings that stated that the company made “conservative\\n inventory purchases.”\\n\\n We note at the outset that, even if we were to assume that all of these\\nallegations satisfy the requisite pleading standards, they would not, standing\\n\\n 9\\n\\f Case: 18-10998 Document: 00515082201 Page: 10 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nalone, create a strong inference of scienter. After all, the investors do not allege\\nthat Smith and Turner misrepresented Pier 1’s inventory. To the contrary, the\\nabove allegations include several public disclosures of Pier 1’s high-inventory\\nproblem. Instead, the investors’ theory of the case is that Smith and Turner\\nmisled the public about Pier 1’s ability to offload that excessive inventory\\nwithout significant markdown risk: Their amended complaint alleges that\\n“Pier 1 repeatedly assured investors that . . . its increasing inventory was\\n‘clean’ and did not present ‘immediate,’ ‘significant,’ or ‘substantial’ markdown\\nrisk.”\\n Knowledge of high inventory does not necessarily equate to knowledge\\nof significant markdown risk—an equally plausible inference is that Smith and\\nTurner reasonably believed they could fix the excessive inventory problem\\nwithout resorting to markdowns. See Abrams, 292 F.3d at 433 (“[I]nventory\\nwrite downs . . . can easily arise from negligence, oversight or simple\\nmismanagement, none of which rise to the standard necessary to support a\\nsecurities fraud action.”). Thus, even if they have adequately alleged that\\nSmith and Turner knew about Pier 1’s high inventory, the investors must still\\nallege facts demonstrating an “intent to deceive” or at least “severe\\nrecklessness” relating to Smith’s and Turner’s failure to disclose Pier 1’s\\nmarkdown risk. See Tellabs, 551 U.S. at 319; Nathenson, 267 F.3d at 409.\\n The “high inventory” allegations also suffer from other defects that cast\\ndoubt on their sufficiency to create a strong inference of scienter under the\\nPSLRA. We briefly address each allegation in turn.\\n First, the investors point to Smith’s comments at an employee town-hall\\nmeeting in March 2014—before the Class Period. At this meeting, Smith\\nshowed a PowerPoint slide with the phrase, “[w]e became victims of our own\\nambition.” The investors cite meeting attendees who said that this slide\\nreferred to overbuying inventory and that Smith admitted that this was a\\n 10\\n\\f Case: 18-10998 Document: 00515082201 Page: 11 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nmistake and that it was his “fault.” The investors rely on In re Dynegy, Inc.\\nSecurities Litigation, where a district court found a strong inference of scienter\\nwhen the defendant allegedly “held an all-hands meeting” and falsely told\\nemployees that trades at issue were made as stress tests of a new energy\\ntrading platform. 339 F. Supp. 2d 804, 901 (S.D. Tex. 2004).\\n This allegation pertains to backward-looking statements about events\\nthat took place outside of the Class Period, which cannot establish scienter.\\nSee Southland, 365 F.3d at 383 (“[F]raud cannot be proved by hindsight.”). In\\naddition, as Pier 1 notes, the information Smith shared was apparently\\ndistributed to—not concealed from—the investors before and after the\\nmeeting. Moreover, In re Dynegy is distinguishable because the investors do\\nnot allege that Smith’s statements at the meeting were false. Cf. 339 F. Supp.\\n2d at 901.\\n Second, the investors allege that Smith saw that the company failed to\\nmeet sales goals and, as a result, did not authorize any employee bonuses at\\nany point during the Class Period. According to the investors, Smith himself\\nsigned at least one letter informing employees that no bonuses would be paid.\\nHowever, this bonus information was repeatedly disclosed to the public and\\ntherefore does not reveal any “secret” information that Smith and Turner were\\ntrying to hide.\\n Third, the investors allege that a confidential witness reported that\\n“[d]uring at least one inventory review meeting in mid-2014, Smith\\nacknowledged that inventory problems were pervasive.” The investors allege\\nthat Smith knew that the problem was pervasive because he knew that Pier 1\\nwas resorting to temporary storage units at hundreds of stores. Smith knew\\nabout these temporary units, the investors allege, because Smith himself\\nordered Pier 1 to stop using the temporary storage units in late 2013.\\n\\n\\n 11\\n\\f Case: 18-10998 Document: 00515082201 Page: 12 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n We note first that “courts must discount allegations from confidential\\nsources.” Ind. Elec. Workers, 537 F.3d at 535. Also, Smith’s 2013 directive to\\nstop using temporary storage units was made well before the Class Period,\\nwhich began in April 2014. This allegation is also vague: it shows only that\\nthere were amorphous “inventory problems” and does not explain what those\\nproblems were.\\n Fourth, the investors allege that Pier 1’s former Director of Distribution\\nand Transportation reported that Smith asked him about almost 1,000 trailers\\nfull of inventory parked outside Pier 1’s Baltimore distribution center. The\\ninvestors assert that these containers housed old inventory not available for\\nsale and Pier 1 failed to process the inventory into its distribution network.\\nThe investors analogize to City of Pontiac General Employees’ Retirement\\nSystem v. Dell Inc., 2016 WL 6075540 (W.D. Tex. Sept. 16, 2016), in which the\\ncourt found that scienter was adequately pleaded because the plaintiffs alleged\\nthat the defendant’s company had “ballooning inventories and operations\\ndeficiencies within its sales divisions . . . resulting in stagnant growth, stalling\\nshipments, and stockpiling inventories[.]” Id. at *4. Just as in that case, the\\ninvestors argue, their complaint alleged that Smith was aware of excessive\\ninventory that was not getting sold quickly enough.\\n We disagree that City of Pontiac applies here. In that case, the plaintiffs\\nalleged that the defendants “were aware of undisclosed facts that would\\nundermine the accuracy of their forward-looking statements.” Id. at *3\\n(emphasis added). But mere knowledge of an inventory backlog would have\\nbeen known to anyone who looked at Pier 1’s earning statements. As we have\\nexplained, the investors do not allege that Pier 1 misstated the amount of its\\ninventory, its costs, or its sales figures. Moreover, this Baltimore-specific\\nallegation says nothing about inventory problems across Pier 1’s other five\\ndistribution centers and thousands of stores.\\n 12\\n\\f Case: 18-10998 Document: 00515082201 Page: 13 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n Fifth, the investors allege that the company received “numerous daily,\\nweekly, and monthly reports on sales figures, inventory figures, and purchases\\nthat would increase inventory.” The investors cite employees who either\\ndrafted, sent, or saw these reports. The reports allegedly “showed the current\\nsales plan and the actual results every quarter, compared inventory to sales,”\\nand demonstrated that “extremely aggressive sales goals could not be met” in\\n2014.\\n Internal corporate reports can support a strong inference of scienter only\\nwhen they meet two requirements: (1) the complaint has corroborating details\\nof the reports’ contents, authors, and recipients; and (2) the reports are\\nconnected to the speaking executive in a persuasive way. Neiman, 854 F.3d at\\n748. As the district court concluded, the first element is not satisfied in this\\ncase because the investors do not allege that any of these reports revealed the\\ninformation that is relevant here: the existence of significant markdown risk\\n(as opposed to merely high inventory).\\n Sixth, the investors argue broadly that Pier 1 had a lot of inventory\\nbacklogs at stores and distribution centers. For example, the investors allege\\nthat Pier 1 “distribution centers were bursting at the seams with inventory,”\\nthat (before the Class Period) “stores began telling headquarters that they\\ncould not take more inventory,” and that “2014 Christmas merchandise could\\nnot reach stores in time because of inventory backlogs.” However, these\\nstatements are all from confidential witnesses who do not relate any\\ninteraction with Smith or Turner, so we must discount them. See Ind. Elec.\\nWorkers, 537 F.3d at 535. In addition, the investors “fail to tie these\\nstatements” to the alleged fraud: like in Indiana Electric Workers, the fact that\\nPier 1 had high inventory “does not necessarily lead to the conclusion that” the\\ncompany intentionally concealed that fact or otherwise failed to disclose\\nsignificant markdown risk. Id. at 537.\\n 13\\n\\f Case: 18-10998 Document: 00515082201 Page: 14 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n Seventh, the investors allege that Smith’s and Turner’s Sarbanes-Oxley\\ncertifications of SEC filings support a strong inference of scienter. Sarbanes-\\nOxley certifications support scienter only if there are “facts establishing that\\nthe officer who signed the certification had a ‘reason to know, or should have\\nsuspected, due to the presence of glaring accounting irregularities or other “red\\nflags,” that the financial statements contained material misstatements or\\nomissions.’” Id. at 545 (quoting Garfield v. NDC Health Corp., 466 F.3d 1255,\\n1266 (11th Cir. 2006)). As the district court observed, the investors have not\\nalleged these essential facts.\\n Having evaluated the investors’ “high inventory” allegations de novo, we\\nconclude that they fall far short of establishing a strong inference of scienter,\\neither individually or taken together.\\n 3.\\n We move on to consider the final category of allegations the investors\\noffer: allegations that Smith and Turner knew that Pier 1 faced significant\\nmarkdown risk. The company argues that the investors have not created a\\nstrong inference of scienter because there is an equally plausible inference to\\nbe drawn from Smith’s and Turner’s knowledge of Pier 1’s high inventory: that\\nSmith and Turner genuinely and reasonably believed that they could get rid of\\nthat excessive inventory by buying less new inventory and selling the existing\\ninventory gradually at market prices. The company suggests that this\\nalternative explanation is more compelling because Pier 1 kept ordering\\ninventory, which would be reasonable if Smith and Turner believed they could\\nsell it fairly quickly, but unreasonable if they knew they could not.\\n As we explained, to establish scienter, the investors must allege that\\nSmith and Turner knew of significant markdown risk and either intentionally\\nor severely recklessly failed to disclose it to investors. See Plotkin, 407 F.3d at\\n696–97. Accordingly, this final category of allegations attempts to disprove the\\n 14\\n\\f Case: 18-10998 Document: 00515082201 Page: 15 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\ncompany’s alternative explanation by demonstrating that Smith and Turner\\naffirmatively knew that they could not sell Pier 1’s high inventory without\\nmarking it down significantly. Specifically, the investors allege the following:\\n (1) Pier 1’s products are all subject to immediate markdown risk\\n because of their seasonal nature;\\n (2) Pier 1 held clearance sales events beginning in May 2015;\\n (3) Various other “red flags” put Smith and Turner on notice of\\n Pier 1’s markdown risk; and\\n (4) Item 303 of Regulation S-K required Smith and Turner to\\n disclose “reasonably expect[ed]” markdown risk.\\n\\nWe will address each in turn.\\n First, the investors allege that “Pier 1’s products are particularly subject\\nto markdown risk because Pier 1 is a trend-based fashion retailer” that is\\nsubject to the whims of “consumer trends.” Once the fashion changes, the\\ninvestors’ theory goes, any inventory that Pier 1 still has can no longer be sold\\nwithout significantly marking down the price. This logic finds support in the\\nSecond Circuit’s decision in Novak v. Kasaks, which found scienter when the\\nplaintiffs alleged that women’s apparel retailer Ann Taylor sat on years of out-\\nof-style clothing without marking down its inventory value. 216 F.3d 300, 311–\\n12 (2d Cir. 2000). The investors cite the company’s own statements in support\\nof this allegation. For example, they emphasize that in December 2016, Smith\\nsaid that Pier 1’s “products reflect current fashion trends.” They also highlight\\nthe following statement in the company’s SEC filings: “The success of the\\nCompany’s specialty retail business depends largely upon its ability to predict\\ntrends in home furnishings consistently and to provide merchandise that\\nsatisfies customer demand in a timely manner.” 2\\n\\n\\n\\n 2The investors also rely on an expert report that was attached to their amended\\ncomplaint. However, the district court struck the report, so we do not consider it. See Munoz\\n 15\\n\\f Case: 18-10998 Document: 00515082201 Page: 16 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n Pier 1 responds by criticizing this characterization of its business.\\nSpecifically, Pier 1 contends that it never describes itself as a “trend-based\\nfashion retailer” subject to markdown risk. Instead, while some of the products\\nare designed to be predictive of trends in home décor, a large percentage of its\\ninventory is, as the district court noted, comprised of “long-standing\\ncollections” of “products that do well for [Pier 1] day in and day out.” For\\nexample, Pier 1 emphasized in its brief and at oral argument that\\napproximately 50 percent of its inventory during the Class Period was “rebuy”\\ngoods, such as the company’s well-known papasan chair. Pier 1 points out that\\nthe investors even acknowledge in their complaint that Pier 1’s inventory\\nincludes “durable or ‘regular rebuy’” inventory.\\n We are persuaded by Pier 1’s arguments: The investors’ allegations do\\nnot create a “strong inference” that all (or even most) of Pier 1’s inventory is so\\ntrend driven that it could not be sold without significant markdowns. First,\\nthe investors’ general allegation that Pier 1 is a “trend-based fashion retailer”\\nis conclusory. Even at the pleading stage, we need not take such statements\\nas true. See Cent. Laborers Pension Fund v. Integrated Elec. Servs., Inc., 497\\nF.3d 546, 550 (5th Cir. 2007) (“[W]e do not accept as true conclusory\\nallegations, unwarranted factual inferences, or legal conclusions.”). Turning\\nto the specific, non-conclusory facts that the investors offer, Smith’s 2016\\nstatement was made outside the Class Period, and the statement in the SEC\\nfilings is too vague—it does not say whether all inventory must be sold timely\\nor precisely how timely the inventory needs to be sold. Ultimately, the\\ninvestors’ argument is self-defeating: they must allege both that Pier 1 said\\nthat all of its inventory is subject to markdown risk if not sold quickly (to\\n\\n\\n\\nv. Orr, 200 F.3d 291, 303 (5th Cir. 2000) (declining to consider evidence that was struck and\\ntherefore “not before the district court”).\\n 16\\n\\f Case: 18-10998 Document: 00515082201 Page: 17 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\ncharacterize Pier 1 as a trend-driven business) and, in the same breath, that\\nPier 1 did not say that (to make an allegation of fraud). The investors cannot\\nhave it both ways. And the investors have not explained why Pier 1 executives\\nkept ordering more inventory when they supposedly knew deep down that they\\nwould not be able to sell it.\\n Second, the investors allege that Smith and Turner must have known\\nabout looming markdown risk because the company published ads announcing\\n“extraordinary markdowns (up to 50% and 70%)” in clearance sales starting in\\nMay 2015. However, the investors first referenced these ads in their response\\nto the motion to dismiss their amended complaint—they did not plead these\\nfacts. See Lohr v. Gilman, 248 F. Supp. 3d 796, 810 (N.D. Tex. 2017) (“A\\nplaintiff may not amend [its] complaint in [its] response to a motion to\\ndismiss.”). In addition, as Pier 1 points out, the investors’ reliance on these\\nsales is merely a temporal-proximity argument: the allegation asserts only that\\nPier 1 said in April 2015 that there was not much markdown risk and then had\\na sale in May 2015. Temporal proximity is weak circumstantial evidence of\\nfraud. See Coates v. Heartland Wireless Commc’ns, Inc., 55 F. Supp. 2d 628,\\n641 n.18 (N.D. Tex. 1999).\\n Third, the investors point to an array of “red flags” that they allege\\nshould have put Smith and Turner on notice of looming markdown risk.\\nBecause these “red flags” were set out in an expert report that the district court\\nstruck, we cannot consider them. See Munoz, 200 F.3d at 303 (declining to\\nconsider evidence that was struck and therefore “not before the district court”).\\n Fourth, the investors allege that Pier 1 had a duty to disclose markdown\\nrisk under Item 303 of Regulation S-K, which directs companies, when filing\\nwith the SEC, to “[d]escribe any known trends or uncertainties . . . that the\\nregistrant reasonably expects will have a material . . . unfavorable impact\\non . . . revenues.” 17 C.F.R. § 229.303(a)(3)(ii). We have never held that Item\\n 17\\n\\f Case: 18-10998 Document: 00515082201 Page: 18 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n303 creates a duty to disclose under the Securities Exchange Act, and other\\ncircuits are split. Compare Stratte-McClure v. Morgan Stanley, 776 F.3d 94,\\n102 (2d Cir. 2015) (“Item 303 imposes the type of duty to speak that can, in\\nappropriate cases, give rise to liability under Section 10(b).”), with In re\\nNVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1056 (9th Cir. 2014) (“Item 303 does\\nnot create a duty to disclose for purposes of Section 10(b) and Rule 10b-5.”).\\n In any event, we need not address this issue because the investors’\\nargument assumes its conclusion: that Smith and Turner “reasonably\\nexpect[ed]” that the high inventory ran the risk of significant markdowns.\\nMoreover, as the district court noted, Pier 1 did disclose these facts when it\\nannounced in December 2015—at the end of the Class Period—that it would\\ntake eighteen months to clear Pier 1’s inventory. The investors need other,\\nindependent allegations showing that Smith or Turner reasonably expected\\nthat excess inventory levels would have a material unfavorable impact on\\nrevenues at some point prior to the December announcement.\\n In summary, we conclude that the investors’ allegations that Smith and\\nTurner knew that Pier 1 had significant markdown risk fail to create a strong\\ninference of scienter. The investors’ scienter theory suffers from defects similar\\nto the appellants’ theory in Diodes. As in that case, rather than concealing its\\ninventory problem, Pier 1 “repeatedly alerted investors” that the problem\\n“would affect the company’s output” throughout the Class Period. See Diodes,\\n810 F.3d at 960. Moreover, like in Diodes, Smith’s and Turner’s conduct belied\\nany attempt to conceal the impact of that problem: were Pier 1 “attempting to\\nconceal” significant markdown risk, continuing to order inventory “would be\\ncounterproductive.” See id. at 960. Thus, because none of the investors’\\n\\n\\n\\n\\n 18\\n\\f Case: 18-10998 Document: 00515082201 Page: 19 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nscienter allegations satisfy the pleading standards of Rule 9(b) and the PSLRA,\\nwe hold that they have not adequately alleged a securities fraud claim. 3\\n IV.\\n For the reasons described, we AFFIRM the district court’s judgment of\\ndismissal.\\n\\n\\n\\n\\n 3 Pier 1 also argues that the amended complaint fails to allege actionable\\nmisrepresentations, another element of a § 10(b) claim. Dura Pharm., 544 U.S. at 341–42.\\nBecause we conclude that the investors’ scienter allegations are inadequate, we do not reach\\nthis issue.\\n 19\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426802/\", \"author_raw\": \"JENNIFER WALKER ELROD, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"WIENER"},"judge3":{"kind":"string","value":"ELROD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4649549/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: MUNICIPAL EMPLOYEES' RETIREMENT SYSTEM OF MICHIGAN, Plaintiff - Appellant, v. PIER 1 IMPORTS, INCORPORATED; Alexander W. Smith ; Charles H. Turner, Defendants - Appellees.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10998 Document: 00515082201 Page: 1 Date Filed: 08/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n August 19, 2019\n No. 18-10998\n Lyle W. Cayce\n Clerk\nMUNICIPAL EMPLOYEES’ RETIREMENT SYSTEM OF MICHIGAN,\n\n Plaintiff – Appellant,\n\nv.\n\nPIER 1 IMPORTS, INCORPORATED; ALEXANDER W. SMITH; CHARLES\nH. TURNER,\n\n Defendants – Appellees.\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\nJENNIFER WALKER ELROD, Circuit Judge:\n “Fashion changes,” says Coco Chanel, “but style endures.” 1 In this\nsecurities fraud case, a class of investors alleges, among other things, that Pier\n1 Imports, Inc. is a “trend-based fashion retailer” whose inventory carried a\nsignificant markdown risk that the company’s executives failed to disclose.\nBecause we conclude that Pier 1 operates largely in the sturdier business of\nstyle and that the investors failed to adequately plead scienter, we AFFIRM.\n\n\n\n 1 The world according to Coco Chanel, Harper’s Bazaar (Aug. 12, 2017),\nhttps://www.harpersbazaar.com/uk/fashion/fashion-news/news/a31524/the-world-according-\nto-coco-chanel/.\n\f Case: 18-10998 Document: 00515082201 Page: 2 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\n I.\n Pier 1 Imports, Inc., is a Fort Worth-based retailer that sells home\nfurnishings at more than 1,000 stores in the United States and Canada and\nthrough its website. In 2007, in the wake of seven consecutive quarterly losses\nand total losses of $227 million for that fiscal year, Pier 1 tapped defendant\nAlex Smith as its new CEO. Smith, working with defendant Charles Turner,\nPier 1’s CFO, had significantly improved the company’s financial position by\n2009. At that point, however, Pier 1 faced new pressure to respond to consumer\ndemand for on-line shopping. To enter this market, in August 2012, Smith and\nTurner launched an initiative called “1 Pier 1,” which would allow customers\nto shop on-line and have their purchases either shipped to their homes or\npicked up without shipping charges at Pier 1’s U.S. stores.\n The 1 Pier 1 initiative did not go as planned. Pier 1’s stock plummeted\nfrom $18.57 on April 28, 2014, to $4.75 on December 17, 2015—a drop of almost\n75 percent. Disappointed, a class of investors who had purchased Pier 1’s stock\nbetween April 10, 2014, and December 17, 2015 (the “Class Period”), brought\nthis lawsuit, claiming that Pier 1, Smith, and Turner (collectively, “the\ncompany”) illegally hid and misrepresented information that, once disclosed,\ncaused this stock-price tailspin.\n Specifically, the complaint alleges that, while carrying out the 1 Pier 1\ninitiative, the company failed to tell investors about significant “markdown\nrisk”—the risk that Pier 1 had so much inventory that it could get rid of it only\nby lowering prices dramatically. According to the investors, this markdown\nrisk was exacerbated by the fact that Pier 1’s “seasonal” and “specialty fashion”\nproducts are “subject to changing consumer tastes.” The investors allege that\nPier 1’s distribution channels were so severely “flooded with excess\nmerchandise” that the company had to employ outside labor and third parties\nto manage it. To keep up, the investors note, Pier 1 made nondiscretionary,\n 2\n\f Case: 18-10998 Document: 00515082201 Page: 3 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\ncapital-improvement expenditures that were almost seven times higher than\nthe yearly average for the ten previous years.\n According to the investors’ amended complaint, Pier 1 did not start to\ntell investors about the existence and magnitude of its markdown risk until\nthe company made a series of “partial corrective disclosures” in 2015. On\nFebruary 10, 2015, Pier 1 announced that it had higher costs because of\n“unplanned supply chain expenses” and announced the departure of Turner as\nCFO. In response to these disclosures, the price of Pier 1’s stock fell 25 percent\novernight—from $16.97 per share on February 10, 2015, to $12.84 per share\non February 11, 2015.\n The investors allege that, during the months that followed, Pier 1 made\nadditional misrepresentations and omissions, telling investors that Pier 1’s\ninventory complexion was “clean,” “healthy,” and did “not pose a significant\nimmediate markdown risk.” On September 24, 2015, however, Pier 1\nannounced that its inventory had caused “issues” within its supply chain, that\nthere were “inventory related inefficiencies within the Company’s distribution\ncenter network,” and that it needed to turn to clearance activity to sell off the\nextra inventory. The investors allege that, in response to these\nannouncements, Pier 1’s stock price fell by more than 12 percent—from $8.67\nper share on September 24, 2015, to $7.61 per share on September 25, 2015.\n The investors further allege that on December 16, 2015—the\npenultimate day of the Class Period—Pier 1 announced that it would take at\nleast eighteen months before inventory levels would be in line with actual\ndemand. Pier 1’s interim CFO, Laura Coffey, also disclosed that only four of\nthe company’s six distribution centers were operating with “acceptable levels\nof efficiencies.” The investors allege that, in response to these disclosures, Pier\n1’s shares again plummeted by 20 percent in one day—from $5.95 per share on\nDecember 16, 2015, to $4.75 on December 17, 2015.\n 3\n\f Case: 18-10998 Document: 00515082201 Page: 4 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\n The investors filed their complaint in the Northern District of Texas,\nasserting that Pier 1 and its executives violated § 10(b) of the Securities\nExchange Act and SEC Rule 10b-5 by failing to disclose Pier 1’s significant\nmarkdown risk. See 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5. Pier 1 moved to\ndismiss under Federal Rule of Civil Procedure 12(b)(6). The district court\ngranted the motion, finding that the investors failed to plead facts that would\nsupport a strong inference of scienter, the required mental state for these\nclaims. The court allowed the investors to amend their complaint to fix this\ndefect.\n After the investors filed an amended complaint, Pier 1 again moved to\ndismiss. This time, the district court dismissed the case with prejudice,\nconcluding that “[a]lthough [the investors] ha[d] made substantial changes to\n[their] pleading in an attempt to cure the deficiencies identified in [the\nprevious] Order, . . . the Amended Complaint still fail[ed] to plead the requisite\nstrong inference of scienter.” The investors appealed.\n II.\n We review de novo a district court’s dismissal of a civil complaint. Barrie\nv. Intervoice-Brite, Inc., 397 F.3d 249, 254 (5th Cir. 2005). To survive a Rule\n12(b)(6) motion to dismiss, a plaintiff’s complaint must comply with the\nfamiliar Twombly/Iqbal standard, which requires the complaint to contain\nsufficient factual matter to state a claim for relief that is plausible on its face.\nSee Emps.’ Ret. Sys. v. Whole Foods Mkt., Inc., 905 F.3d 892, 899 (5th Cir.\n2018). Because the investors allege securities fraud, their amended complaint\nmust also satisfy Federal Rule of Civil Procedure 9(b), which requires that a\nplaintiff “state with particularity the circumstances constituting fraud or\nmistake.” Under Rule 9(b), “a plaintiff must ‘identify the time, place, and\ncontents of the false representations, as well as the identity of the person\nmaking the misrepresentation and what that person obtained thereby.’” Whole\n 4\n\f Case: 18-10998 Document: 00515082201 Page: 5 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\nFoods, 905 F.3d at 899 (alteration omitted) (quoting Owens v. Jastrow, 789\nF.3d 529, 535 (5th Cir. 2015)).\n To state a claim under § 10(b) of the Securities Exchange Act and SEC\nRule 10b-5, a plaintiff must allege: (1) a material misrepresentation or\nomission; (2) scienter (a “wrongful state of mind”); (3) a connection with the\npurchase or sale of a security; (4) reliance; (5) economic loss; and (6) a “causal\nconnection between the material misrepresentation and the loss.” Dura\nPharm., Inc. v. Broudo, 544 U.S. 336, 341–42 (2005). To impute liability to\nSmith and Turner—the alleged “control persons” of Pier 1 under § 20(a) of the\nSecurities Exchange Act—the investors had to show a “primary violation”\nunder § 10(b): If the § 10(b) claim is inadequate, then so is the § 20(a) claim.\nSouthland Sec. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 383 (5th Cir.\n2004). Allegations under § 10(b) and Rule 10b-5 must comply with the Private\nSecurities Litigation Reform Act (PSLRA), which requires plaintiffs to “specify\neach statement alleged to have been misleading, the reason or reasons why the\nstatement is misleading, and, if an allegation regarding the statement or\nomission is made on information and belief, . . . state with particularity all\nfacts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(1). In pleading\nscienter, plaintiffs must “state with particularity facts giving rise to a strong\ninference that the defendant acted with the required state of mind.” Id. § 78u-\n4(b)(2)(A).\n III.\n We agree with the district court that the investors have failed to plead a\n“strong inference” of scienter. Scienter is a “mental state embracing intent to\ndeceive, manipulate, or defraud.” Tellabs, Inc. v. Makor Issues & Rights, Ltd.,\n551 U.S. 308, 319 (2007) (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185,\n193 n.12 (1976)). Both intent and “severe recklessness” are sufficient.\nNathenson v. Zonagen, Inc., 267 F.3d 400, 408–09 (5th Cir. 2001). Plaintiffs\n 5\n\f Case: 18-10998 Document: 00515082201 Page: 6 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\nproperly plead scienter when they allege that a company knowingly or\nrecklessly made statements to the market while aware of facts that, if not\ndisclosed, would render those statements misleading. See Plotkin v. IP Axess\nInc., 407 F.3d 690, 696–97 (5th Cir. 2005).\n The investors raise two challenges to the district court’s dismissal of\ntheir original and amended complaints: (1) that in dismissing their original\ncomplaint, the district court improperly analyzed their scienter allegations;\nand (2) that the scienter allegations in their amended complaint were sufficient\nto state a securities fraud claim. Neither argument persuades us that the\ndistrict court erred.\n A.\n We have explained that a district court “may best make sense of scienter\nallegations by first looking to the contribution of each individual allegation to\na strong inference of scienter, especially in a complicated case[.]” Owens, 789\nF.3d at 537. If any “single allegation, standing alone, create[s] a strong\ninference of scienter,” then the court may stop there. Id. If it does not, then\nthe district court must take “a holistic look at all the scienter allegations.” Id.\n The investors contend that, in evaluating their original complaint, the\ndistrict court failed to follow this analysis and instead analyzed all of their\nallegations collectively under Diodes, which holds that, in four “special\ncircumstances,” a defendant’s corporate title coupled with a severe problem\nwithin the company sufficiently alleges scienter. Local 731 I.B. of T.\nExcavators & Pavers Pension Tr. Fund v. Diodes, Inc., 810 F.3d 951, 959 (5th\nCir. 2016). This was error, the investors argue, because Diodes does not apply\nhere. They also complain that the district court failed to correct this error\nwhen it dismissed their amended complaint. We disagree.\n The district court’s order dismissing the original complaint first\nconcluded that the investors failed to allege scienter because, inter alia,\n 6\n\f Case: 18-10998 Document: 00515082201 Page: 7 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\n(1) Smith and Turner lacked a motive to commit fraud; (2) Pier 1 “repeatedly\ndisclosed . . . [its] increasing inventory, disappointing sales, and the risk of\nmarkdowns”; and (3) the investors’ proffered “general accounts from\nconfidential witnesses” did not support their scienter allegations. After\nundertaking this evaluation of the investors’ allegations, the district court then\nassessed whether Diodes applied and found that it did not because none of the\nfour “special circumstances” were present here. This analysis did not run afoul\nof our directives in Owens.\n B.\n We turn next to the investors’ amended complaint. The investors’\nscienter theory relies on three categories of allegations: (1) allegations of\nmotive; (2) allegations that Smith and Turner knew Pier 1 had high inventory;\nand (3) allegations that Smith and Turner knew Pier 1 had significant\nmarkdown risk. Each set of allegations falls short of creating the “strong\ninference” of scienter required under the PSLRA.\n 1.\n “To demonstrate motive, plaintiffs must show ‘concrete benefits that\ncould be realized by one or more of the false statements and wrongful\nnondisclosures alleged.’” Ind. Elec. Workers’ Pension Tr. Fund IBEW v. Shaw\nGrp., Inc., 537 F.3d 527, 543 (5th Cir. 2008) (quoting Phillips v. LCI Int’l, Inc.,\n190 F.3d 609, 621 (4th Cir. 1999)). Motive is a critical—though not essential—\naspect of a successful claim for securities fraud: “[A]llegations of motive . . .\nmay enhance an inference of scienter[.]” Abrams v. Baker Hughes Inc., 292\nF.3d 424, 434 (5th Cir. 2002). A failure to show motive means that “the\nstrength of the circumstantial evidence of scienter must be correspondingly\ngreater.” Neiman v. Bulmahn, 854 F.3d 741, 748 (5th Cir. 2017) (alteration\nomitted) (quoting R2 Invs. LDC v. Phillips, 401 F.3d 638, 644 (5th Cir. 2005)).\n\n\n 7\n\f Case: 18-10998 Document: 00515082201 Page: 8 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\n The investors allege that Smith and Turner had two motives for\nconcealing Pier 1’s markdown risk: (1) they “staked their careers” on 1 Pier 1,\nwhich drove them to overstate the success of that initiative; and (2) their\nemployment contracts promised them cash bonuses based on Pier 1’s earnings\nbefore interest, tax, depreciation, and amortization. Neither motive finds\nsupport in our precedent.\n First, in Abrams, we held that a desire “to protect [one’s job in an]\nexecutive position[]” was not “the type[] of motive that support[s] a strong\ninference of scienter.” 292 F.3d at 434 (citing Melder v. URCARCO, 27 F.3d\n1097, 1102 (5th Cir. 1994)). In the absence of “an allegation that the\ndefendants profited from” the alleged fraud, an allegation of motive based on\ncareer prospects is insufficient. Id. Therefore, the investors’ reliance on\nSmith’s and Turner’s instincts for career survival fails to overcome the\npleading hurdle.\n As for the second motive allegation, we have held that “incentive\ncompensation ‘can hardly be the basis on which an allegation of fraud is\npredicated’” because “the vast majority of corporate executives” receive this\ntype of compensation. Ind. Elec. Workers, 537 F.3d at 544 (quoting Tuchman\nv. DSC Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)). However, in a\nlimited set of circumstances—when the potential bonus is extremely high and\nother allegations support an inference of scienter—performance-based\ncompensation can establish motive. See Barrie, 397 F.3d at 261. In Barrie, the\ndefendant received a performance-based bonus that was 175 percent of his base\nsalary, and we held that his compensation package contributed to a strong\ninference of scienter. Id.\n But Barrie is not this case. Here, even the lowest possible performance-\nbased bonuses that Smith and Turner could receive—which were only 11.5\npercent and 8 percent of their respective base salaries—proved to be well out\n 8\n\f Case: 18-10998 Document: 00515082201 Page: 9 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\nof reach: Pier 1’s Fiscal Year 2015 earnings before interest, tax, depreciation,\nand amortization were $60 million lower than the lowest target number in\ntheir employment contracts. Although these contracts also included potential\nbonuses as high as 288 percent and 200 percent of Smith’s and Turner’s base\nsalaries, Pier 1’s earnings were $125 million shy of the target number for those\nbonuses. Accordingly, because the likelihood that Smith and Turner would\nactually receive these high-level bonuses was quite small, Barrie does not\napply here. We reject the investors’ motive allegations as creating any\ninference of scienter, much less a strong one.\n 2.\n The investors make the following allegations related to Smith’s and\nTurner’s knowledge that Pier 1’s inventory was high:\n (1) Smith made comments at an employee “town hall” meeting in\n March 2014 admitting that the company overbought inventory;\n (2) Smith knew of the company’s failure to meet its sales goals and\n the resultant decision not to pay bonuses;\n (3) Smith knew about the company’s “inventory problems” and, in\n 2013, directed the company to end the use of temporary storage\n at stores;\n (4) Smith had a conversation with another executive regarding a\n 1,000-container backlog at Pier 1’s Baltimore distribution\n center;\n (5) The company received regular contemporaneous reports on\n sales figures, inventory, and purchases;\n (6) Pier 1 had large inventory backlogs at its stores and\n distribution centers; and\n (7) Smith and Turner made Sarbanes-Oxley certifications of SEC\n filings that stated that the company made “conservative\n inventory purchases.”\n\n We note at the outset that, even if we were to assume that all of these\nallegations satisfy the requisite pleading standards, they would not, standing\n\n 9\n\f Case: 18-10998 Document: 00515082201 Page: 10 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\nalone, create a strong inference of scienter. After all, the investors do not allege\nthat Smith and Turner misrepresented Pier 1’s inventory. To the contrary, the\nabove allegations include several public disclosures of Pier 1’s high-inventory\nproblem. Instead, the investors’ theory of the case is that Smith and Turner\nmisled the public about Pier 1’s ability to offload that excessive inventory\nwithout significant markdown risk: Their amended complaint alleges that\n“Pier 1 repeatedly assured investors that . . . its increasing inventory was\n‘clean’ and did not present ‘immediate,’ ‘significant,’ or ‘substantial’ markdown\nrisk.”\n Knowledge of high inventory does not necessarily equate to knowledge\nof significant markdown risk—an equally plausible inference is that Smith and\nTurner reasonably believed they could fix the excessive inventory problem\nwithout resorting to markdowns. See Abrams, 292 F.3d at 433 (“[I]nventory\nwrite downs . . . can easily arise from negligence, oversight or simple\nmismanagement, none of which rise to the standard necessary to support a\nsecurities fraud action.”). Thus, even if they have adequately alleged that\nSmith and Turner knew about Pier 1’s high inventory, the investors must still\nallege facts demonstrating an “intent to deceive” or at least “severe\nrecklessness” relating to Smith’s and Turner’s failure to disclose Pier 1’s\nmarkdown risk. See Tellabs, 551 U.S. at 319; Nathenson, 267 F.3d at 409.\n The “high inventory” allegations also suffer from other defects that cast\ndoubt on their sufficiency to create a strong inference of scienter under the\nPSLRA. We briefly address each allegation in turn.\n First, the investors point to Smith’s comments at an employee town-hall\nmeeting in March 2014—before the Class Period. At this meeting, Smith\nshowed a PowerPoint slide with the phrase, “[w]e became victims of our own\nambition.” The investors cite meeting attendees who said that this slide\nreferred to overbuying inventory and that Smith admitted that this was a\n 10\n\f Case: 18-10998 Document: 00515082201 Page: 11 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\nmistake and that it was his “fault.” The investors rely on In re Dynegy, Inc.\nSecurities Litigation, where a district court found a strong inference of scienter\nwhen the defendant allegedly “held an all-hands meeting” and falsely told\nemployees that trades at issue were made as stress tests of a new energy\ntrading platform. 339 F. Supp. 2d 804, 901 (S.D. Tex. 2004).\n This allegation pertains to backward-looking statements about events\nthat took place outside of the Class Period, which cannot establish scienter.\nSee Southland, 365 F.3d at 383 (“[F]raud cannot be proved by hindsight.”). In\naddition, as Pier 1 notes, the information Smith shared was apparently\ndistributed to—not concealed from—the investors before and after the\nmeeting. Moreover, In re Dynegy is distinguishable because the investors do\nnot allege that Smith’s statements at the meeting were false. Cf. 339 F. Supp.\n2d at 901.\n Second, the investors allege that Smith saw that the company failed to\nmeet sales goals and, as a result, did not authorize any employee bonuses at\nany point during the Class Period. According to the investors, Smith himself\nsigned at least one letter informing employees that no bonuses would be paid.\nHowever, this bonus information was repeatedly disclosed to the public and\ntherefore does not reveal any “secret” information that Smith and Turner were\ntrying to hide.\n Third, the investors allege that a confidential witness reported that\n“[d]uring at least one inventory review meeting in mid-2014, Smith\nacknowledged that inventory problems were pervasive.” The investors allege\nthat Smith knew that the problem was pervasive because he knew that Pier 1\nwas resorting to temporary storage units at hundreds of stores. Smith knew\nabout these temporary units, the investors allege, because Smith himself\nordered Pier 1 to stop using the temporary storage units in late 2013.\n\n\n 11\n\f Case: 18-10998 Document: 00515082201 Page: 12 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\n We note first that “courts must discount allegations from confidential\nsources.” Ind. Elec. Workers, 537 F.3d at 535. Also, Smith’s 2013 directive to\nstop using temporary storage units was made well before the Class Period,\nwhich began in April 2014. This allegation is also vague: it shows only that\nthere were amorphous “inventory problems” and does not explain what those\nproblems were.\n Fourth, the investors allege that Pier 1’s former Director of Distribution\nand Transportation reported that Smith asked him about almost 1,000 trailers\nfull of inventory parked outside Pier 1’s Baltimore distribution center. The\ninvestors assert that these containers housed old inventory not available for\nsale and Pier 1 failed to process the inventory into its distribution network.\nThe investors analogize to City of Pontiac General Employees’ Retirement\nSystem v. Dell Inc., 2016 WL 6075540 (W.D. Tex. Sept. 16, 2016), in which the\ncourt found that scienter was adequately pleaded because the plaintiffs alleged\nthat the defendant’s company had “ballooning inventories and operations\ndeficiencies within its sales divisions . . . resulting in stagnant growth, stalling\nshipments, and stockpiling inventories[.]” Id. at *4. Just as in that case, the\ninvestors argue, their complaint alleged that Smith was aware of excessive\ninventory that was not getting sold quickly enough.\n We disagree that City of Pontiac applies here. In that case, the plaintiffs\nalleged that the defendants “were aware of undisclosed facts that would\nundermine the accuracy of their forward-looking statements.” Id. at *3\n(emphasis added). But mere knowledge of an inventory backlog would have\nbeen known to anyone who looked at Pier 1’s earning statements. As we have\nexplained, the investors do not allege that Pier 1 misstated the amount of its\ninventory, its costs, or its sales figures. Moreover, this Baltimore-specific\nallegation says nothing about inventory problems across Pier 1’s other five\ndistribution centers and thousands of stores.\n 12\n\f Case: 18-10998 Document: 00515082201 Page: 13 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\n Fifth, the investors allege that the company received “numerous daily,\nweekly, and monthly reports on sales figures, inventory figures, and purchases\nthat would increase inventory.” The investors cite employees who either\ndrafted, sent, or saw these reports. The reports allegedly “showed the current\nsales plan and the actual results every quarter, compared inventory to sales,”\nand demonstrated that “extremely aggressive sales goals could not be met” in\n2014.\n Internal corporate reports can support a strong inference of scienter only\nwhen they meet two requirements: (1) the complaint has corroborating details\nof the reports’ contents, authors, and recipients; and (2) the reports are\nconnected to the speaking executive in a persuasive way. Neiman, 854 F.3d at\n748. As the district court concluded, the first element is not satisfied in this\ncase because the investors do not allege that any of these reports revealed the\ninformation that is relevant here: the existence of significant markdown risk\n(as opposed to merely high inventory).\n Sixth, the investors argue broadly that Pier 1 had a lot of inventory\nbacklogs at stores and distribution centers. For example, the investors allege\nthat Pier 1 “distribution centers were bursting at the seams with inventory,”\nthat (before the Class Period) “stores began telling headquarters that they\ncould not take more inventory,” and that “2014 Christmas merchandise could\nnot reach stores in time because of inventory backlogs.” However, these\nstatements are all from confidential witnesses who do not relate any\ninteraction with Smith or Turner, so we must discount them. See Ind. Elec.\nWorkers, 537 F.3d at 535. In addition, the investors “fail to tie these\nstatements” to the alleged fraud: like in Indiana Electric Workers, the fact that\nPier 1 had high inventory “does not necessarily lead to the conclusion that” the\ncompany intentionally concealed that fact or otherwise failed to disclose\nsignificant markdown risk. Id. at 537.\n 13\n\f Case: 18-10998 Document: 00515082201 Page: 14 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\n Seventh, the investors allege that Smith’s and Turner’s Sarbanes-Oxley\ncertifications of SEC filings support a strong inference of scienter. Sarbanes-\nOxley certifications support scienter only if there are “facts establishing that\nthe officer who signed the certification had a ‘reason to know, or should have\nsuspected, due to the presence of glaring accounting irregularities or other “red\nflags,” that the financial statements contained material misstatements or\nomissions.’” Id. at 545 (quoting Garfield v. NDC Health Corp., 466 F.3d 1255,\n1266 (11th Cir. 2006)). As the district court observed, the investors have not\nalleged these essential facts.\n Having evaluated the investors’ “high inventory” allegations de novo, we\nconclude that they fall far short of establishing a strong inference of scienter,\neither individually or taken together.\n 3.\n We move on to consider the final category of allegations the investors\noffer: allegations that Smith and Turner knew that Pier 1 faced significant\nmarkdown risk. The company argues that the investors have not created a\nstrong inference of scienter because there is an equally plausible inference to\nbe drawn from Smith’s and Turner’s knowledge of Pier 1’s high inventory: that\nSmith and Turner genuinely and reasonably believed that they could get rid of\nthat excessive inventory by buying less new inventory and selling the existing\ninventory gradually at market prices. The company suggests that this\nalternative explanation is more compelling because Pier 1 kept ordering\ninventory, which would be reasonable if Smith and Turner believed they could\nsell it fairly quickly, but unreasonable if they knew they could not.\n As we explained, to establish scienter, the investors must allege that\nSmith and Turner knew of significant markdown risk and either intentionally\nor severely recklessly failed to disclose it to investors. See Plotkin, 407 F.3d at\n696–97. Accordingly, this final category of allegations attempts to disprove the\n 14\n\f Case: 18-10998 Document: 00515082201 Page: 15 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\ncompany’s alternative explanation by demonstrating that Smith and Turner\naffirmatively knew that they could not sell Pier 1’s high inventory without\nmarking it down significantly. Specifically, the investors allege the following:\n (1) Pier 1’s products are all subject to immediate markdown risk\n because of their seasonal nature;\n (2) Pier 1 held clearance sales events beginning in May 2015;\n (3) Various other “red flags” put Smith and Turner on notice of\n Pier 1’s markdown risk; and\n (4) Item 303 of Regulation S-K required Smith and Turner to\n disclose “reasonably expect[ed]” markdown risk.\n\nWe will address each in turn.\n First, the investors allege that “Pier 1’s products are particularly subject\nto markdown risk because Pier 1 is a trend-based fashion retailer” that is\nsubject to the whims of “consumer trends.” Once the fashion changes, the\ninvestors’ theory goes, any inventory that Pier 1 still has can no longer be sold\nwithout significantly marking down the price. This logic finds support in the\nSecond Circuit’s decision in Novak v. Kasaks, which found scienter when the\nplaintiffs alleged that women’s apparel retailer Ann Taylor sat on years of out-\nof-style clothing without marking down its inventory value. 216 F.3d 300, 311–\n12 (2d Cir. 2000). The investors cite the company’s own statements in support\nof this allegation. For example, they emphasize that in December 2016, Smith\nsaid that Pier 1’s “products reflect current fashion trends.” They also highlight\nthe following statement in the company’s SEC filings: “The success of the\nCompany’s specialty retail business depends largely upon its ability to predict\ntrends in home furnishings consistently and to provide merchandise that\nsatisfies customer demand in a timely manner.” 2\n\n\n\n 2The investors also rely on an expert report that was attached to their amended\ncomplaint. However, the district court struck the report, so we do not consider it. See Munoz\n 15\n\f Case: 18-10998 Document: 00515082201 Page: 16 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\n Pier 1 responds by criticizing this characterization of its business.\nSpecifically, Pier 1 contends that it never describes itself as a “trend-based\nfashion retailer” subject to markdown risk. Instead, while some of the products\nare designed to be predictive of trends in home décor, a large percentage of its\ninventory is, as the district court noted, comprised of “long-standing\ncollections” of “products that do well for [Pier 1] day in and day out.” For\nexample, Pier 1 emphasized in its brief and at oral argument that\napproximately 50 percent of its inventory during the Class Period was “rebuy”\ngoods, such as the company’s well-known papasan chair. Pier 1 points out that\nthe investors even acknowledge in their complaint that Pier 1’s inventory\nincludes “durable or ‘regular rebuy’” inventory.\n We are persuaded by Pier 1’s arguments: The investors’ allegations do\nnot create a “strong inference” that all (or even most) of Pier 1’s inventory is so\ntrend driven that it could not be sold without significant markdowns. First,\nthe investors’ general allegation that Pier 1 is a “trend-based fashion retailer”\nis conclusory. Even at the pleading stage, we need not take such statements\nas true. See Cent. Laborers Pension Fund v. Integrated Elec. Servs., Inc., 497\nF.3d 546, 550 (5th Cir. 2007) (“[W]e do not accept as true conclusory\nallegations, unwarranted factual inferences, or legal conclusions.”). Turning\nto the specific, non-conclusory facts that the investors offer, Smith’s 2016\nstatement was made outside the Class Period, and the statement in the SEC\nfilings is too vague—it does not say whether all inventory must be sold timely\nor precisely how timely the inventory needs to be sold. Ultimately, the\ninvestors’ argument is self-defeating: they must allege both that Pier 1 said\nthat all of its inventory is subject to markdown risk if not sold quickly (to\n\n\n\nv. Orr, 200 F.3d 291, 303 (5th Cir. 2000) (declining to consider evidence that was struck and\ntherefore “not before the district court”).\n 16\n\f Case: 18-10998 Document: 00515082201 Page: 17 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\ncharacterize Pier 1 as a trend-driven business) and, in the same breath, that\nPier 1 did not say that (to make an allegation of fraud). The investors cannot\nhave it both ways. And the investors have not explained why Pier 1 executives\nkept ordering more inventory when they supposedly knew deep down that they\nwould not be able to sell it.\n Second, the investors allege that Smith and Turner must have known\nabout looming markdown risk because the company published ads announcing\n“extraordinary markdowns (up to 50% and 70%)” in clearance sales starting in\nMay 2015. However, the investors first referenced these ads in their response\nto the motion to dismiss their amended complaint—they did not plead these\nfacts. See Lohr v. Gilman, 248 F. Supp. 3d 796, 810 (N.D. Tex. 2017) (“A\nplaintiff may not amend [its] complaint in [its] response to a motion to\ndismiss.”). In addition, as Pier 1 points out, the investors’ reliance on these\nsales is merely a temporal-proximity argument: the allegation asserts only that\nPier 1 said in April 2015 that there was not much markdown risk and then had\na sale in May 2015. Temporal proximity is weak circumstantial evidence of\nfraud. See Coates v. Heartland Wireless Commc’ns, Inc., 55 F. Supp. 2d 628,\n641 n.18 (N.D. Tex. 1999).\n Third, the investors point to an array of “red flags” that they allege\nshould have put Smith and Turner on notice of looming markdown risk.\nBecause these “red flags” were set out in an expert report that the district court\nstruck, we cannot consider them. See Munoz, 200 F.3d at 303 (declining to\nconsider evidence that was struck and therefore “not before the district court”).\n Fourth, the investors allege that Pier 1 had a duty to disclose markdown\nrisk under Item 303 of Regulation S-K, which directs companies, when filing\nwith the SEC, to “[d]escribe any known trends or uncertainties . . . that the\nregistrant reasonably expects will have a material . . . unfavorable impact\non . . . revenues.” 17 C.F.R. § 229.303(a)(3)(ii). We have never held that Item\n 17\n\f Case: 18-10998 Document: 00515082201 Page: 18 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\n303 creates a duty to disclose under the Securities Exchange Act, and other\ncircuits are split. Compare Stratte-McClure v. Morgan Stanley, 776 F.3d 94,\n102 (2d Cir. 2015) (“Item 303 imposes the type of duty to speak that can, in\nappropriate cases, give rise to liability under Section 10(b).”), with In re\nNVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1056 (9th Cir. 2014) (“Item 303 does\nnot create a duty to disclose for purposes of Section 10(b) and Rule 10b-5.”).\n In any event, we need not address this issue because the investors’\nargument assumes its conclusion: that Smith and Turner “reasonably\nexpect[ed]” that the high inventory ran the risk of significant markdowns.\nMoreover, as the district court noted, Pier 1 did disclose these facts when it\nannounced in December 2015—at the end of the Class Period—that it would\ntake eighteen months to clear Pier 1’s inventory. The investors need other,\nindependent allegations showing that Smith or Turner reasonably expected\nthat excess inventory levels would have a material unfavorable impact on\nrevenues at some point prior to the December announcement.\n In summary, we conclude that the investors’ allegations that Smith and\nTurner knew that Pier 1 had significant markdown risk fail to create a strong\ninference of scienter. The investors’ scienter theory suffers from defects similar\nto the appellants’ theory in Diodes. As in that case, rather than concealing its\ninventory problem, Pier 1 “repeatedly alerted investors” that the problem\n“would affect the company’s output” throughout the Class Period. See Diodes,\n810 F.3d at 960. Moreover, like in Diodes, Smith’s and Turner’s conduct belied\nany attempt to conceal the impact of that problem: were Pier 1 “attempting to\nconceal” significant markdown risk, continuing to order inventory “would be\ncounterproductive.” See id. at 960. Thus, because none of the investors’\n\n\n\n\n 18\n\f Case: 18-10998 Document: 00515082201 Page: 19 Date Filed: 08/19/2019\n\n\n\n No. 18-10998\nscienter allegations satisfy the pleading standards of Rule 9(b) and the PSLRA,\nwe hold that they have not adequately alleged a securities fraud claim. 3\n IV.\n For the reasons described, we AFFIRM the district court’s judgment of\ndismissal.\n\n\n\n\n 3 Pier 1 also argues that the amended complaint fails to allege actionable\nmisrepresentations, another element of a § 10(b) claim. Dura Pharm., 544 U.S. at 341–42.\nBecause we conclude that the investors’ scienter allegations are inadequate, we do not reach\nthis issue.\n 19\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: MUNICIPAL EMPLOYEES' RETIREMENT SYSTEM OF MICHIGAN, Plaintiff - Appellant, v. PIER 1 IMPORTS, INCORPORATED; Alexander W. Smith ; Charles H. Turner, Defendants - Appellees.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10998 Document: 00515082201 Page: 1 Date Filed: 08/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 19, 2019\\n No. 18-10998\\n Lyle W. Cayce\\n Clerk\\nMUNICIPAL EMPLOYEES’ RETIREMENT SYSTEM OF MICHIGAN,\\n\\n Plaintiff – Appellant,\\n\\nv.\\n\\nPIER 1 IMPORTS, INCORPORATED; ALEXANDER W. SMITH; CHARLES\\nH. TURNER,\\n\\n Defendants – Appellees.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nJENNIFER WALKER ELROD, Circuit Judge:\\n “Fashion changes,” says Coco Chanel, “but style endures.” 1 In this\\nsecurities fraud case, a class of investors alleges, among other things, that Pier\\n1 Imports, Inc. is a “trend-based fashion retailer” whose inventory carried a\\nsignificant markdown risk that the company’s executives failed to disclose.\\nBecause we conclude that Pier 1 operates largely in the sturdier business of\\nstyle and that the investors failed to adequately plead scienter, we AFFIRM.\\n\\n\\n\\n 1 The world according to Coco Chanel, Harper’s Bazaar (Aug. 12, 2017),\\nhttps://www.harpersbazaar.com/uk/fashion/fashion-news/news/a31524/the-world-according-\\nto-coco-chanel/.\\n\\f Case: 18-10998 Document: 00515082201 Page: 2 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n I.\\n Pier 1 Imports, Inc., is a Fort Worth-based retailer that sells home\\nfurnishings at more than 1,000 stores in the United States and Canada and\\nthrough its website. In 2007, in the wake of seven consecutive quarterly losses\\nand total losses of $227 million for that fiscal year, Pier 1 tapped defendant\\nAlex Smith as its new CEO. Smith, working with defendant Charles Turner,\\nPier 1’s CFO, had significantly improved the company’s financial position by\\n2009. At that point, however, Pier 1 faced new pressure to respond to consumer\\ndemand for on-line shopping. To enter this market, in August 2012, Smith and\\nTurner launched an initiative called “1 Pier 1,” which would allow customers\\nto shop on-line and have their purchases either shipped to their homes or\\npicked up without shipping charges at Pier 1’s U.S. stores.\\n The 1 Pier 1 initiative did not go as planned. Pier 1’s stock plummeted\\nfrom $18.57 on April 28, 2014, to $4.75 on December 17, 2015—a drop of almost\\n75 percent. Disappointed, a class of investors who had purchased Pier 1’s stock\\nbetween April 10, 2014, and December 17, 2015 (the “Class Period”), brought\\nthis lawsuit, claiming that Pier 1, Smith, and Turner (collectively, “the\\ncompany”) illegally hid and misrepresented information that, once disclosed,\\ncaused this stock-price tailspin.\\n Specifically, the complaint alleges that, while carrying out the 1 Pier 1\\ninitiative, the company failed to tell investors about significant “markdown\\nrisk”—the risk that Pier 1 had so much inventory that it could get rid of it only\\nby lowering prices dramatically. According to the investors, this markdown\\nrisk was exacerbated by the fact that Pier 1’s “seasonal” and “specialty fashion”\\nproducts are “subject to changing consumer tastes.” The investors allege that\\nPier 1’s distribution channels were so severely “flooded with excess\\nmerchandise” that the company had to employ outside labor and third parties\\nto manage it. To keep up, the investors note, Pier 1 made nondiscretionary,\\n 2\\n\\f Case: 18-10998 Document: 00515082201 Page: 3 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\ncapital-improvement expenditures that were almost seven times higher than\\nthe yearly average for the ten previous years.\\n According to the investors’ amended complaint, Pier 1 did not start to\\ntell investors about the existence and magnitude of its markdown risk until\\nthe company made a series of “partial corrective disclosures” in 2015. On\\nFebruary 10, 2015, Pier 1 announced that it had higher costs because of\\n“unplanned supply chain expenses” and announced the departure of Turner as\\nCFO. In response to these disclosures, the price of Pier 1’s stock fell 25 percent\\novernight—from $16.97 per share on February 10, 2015, to $12.84 per share\\non February 11, 2015.\\n The investors allege that, during the months that followed, Pier 1 made\\nadditional misrepresentations and omissions, telling investors that Pier 1’s\\ninventory complexion was “clean,” “healthy,” and did “not pose a significant\\nimmediate markdown risk.” On September 24, 2015, however, Pier 1\\nannounced that its inventory had caused “issues” within its supply chain, that\\nthere were “inventory related inefficiencies within the Company’s distribution\\ncenter network,” and that it needed to turn to clearance activity to sell off the\\nextra inventory. The investors allege that, in response to these\\nannouncements, Pier 1’s stock price fell by more than 12 percent—from $8.67\\nper share on September 24, 2015, to $7.61 per share on September 25, 2015.\\n The investors further allege that on December 16, 2015—the\\npenultimate day of the Class Period—Pier 1 announced that it would take at\\nleast eighteen months before inventory levels would be in line with actual\\ndemand. Pier 1’s interim CFO, Laura Coffey, also disclosed that only four of\\nthe company’s six distribution centers were operating with “acceptable levels\\nof efficiencies.” The investors allege that, in response to these disclosures, Pier\\n1’s shares again plummeted by 20 percent in one day—from $5.95 per share on\\nDecember 16, 2015, to $4.75 on December 17, 2015.\\n 3\\n\\f Case: 18-10998 Document: 00515082201 Page: 4 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n The investors filed their complaint in the Northern District of Texas,\\nasserting that Pier 1 and its executives violated § 10(b) of the Securities\\nExchange Act and SEC Rule 10b-5 by failing to disclose Pier 1’s significant\\nmarkdown risk. See 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5. Pier 1 moved to\\ndismiss under Federal Rule of Civil Procedure 12(b)(6). The district court\\ngranted the motion, finding that the investors failed to plead facts that would\\nsupport a strong inference of scienter, the required mental state for these\\nclaims. The court allowed the investors to amend their complaint to fix this\\ndefect.\\n After the investors filed an amended complaint, Pier 1 again moved to\\ndismiss. This time, the district court dismissed the case with prejudice,\\nconcluding that “[a]lthough [the investors] ha[d] made substantial changes to\\n[their] pleading in an attempt to cure the deficiencies identified in [the\\nprevious] Order, . . . the Amended Complaint still fail[ed] to plead the requisite\\nstrong inference of scienter.” The investors appealed.\\n II.\\n We review de novo a district court’s dismissal of a civil complaint. Barrie\\nv. Intervoice-Brite, Inc., 397 F.3d 249, 254 (5th Cir. 2005). To survive a Rule\\n12(b)(6) motion to dismiss, a plaintiff’s complaint must comply with the\\nfamiliar Twombly/Iqbal standard, which requires the complaint to contain\\nsufficient factual matter to state a claim for relief that is plausible on its face.\\nSee Emps.’ Ret. Sys. v. Whole Foods Mkt., Inc., 905 F.3d 892, 899 (5th Cir.\\n2018). Because the investors allege securities fraud, their amended complaint\\nmust also satisfy Federal Rule of Civil Procedure 9(b), which requires that a\\nplaintiff “state with particularity the circumstances constituting fraud or\\nmistake.” Under Rule 9(b), “a plaintiff must ‘identify the time, place, and\\ncontents of the false representations, as well as the identity of the person\\nmaking the misrepresentation and what that person obtained thereby.’” Whole\\n 4\\n\\f Case: 18-10998 Document: 00515082201 Page: 5 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nFoods, 905 F.3d at 899 (alteration omitted) (quoting Owens v. Jastrow, 789\\nF.3d 529, 535 (5th Cir. 2015)).\\n To state a claim under § 10(b) of the Securities Exchange Act and SEC\\nRule 10b-5, a plaintiff must allege: (1) a material misrepresentation or\\nomission; (2) scienter (a “wrongful state of mind”); (3) a connection with the\\npurchase or sale of a security; (4) reliance; (5) economic loss; and (6) a “causal\\nconnection between the material misrepresentation and the loss.” Dura\\nPharm., Inc. v. Broudo, 544 U.S. 336, 341–42 (2005). To impute liability to\\nSmith and Turner—the alleged “control persons” of Pier 1 under § 20(a) of the\\nSecurities Exchange Act—the investors had to show a “primary violation”\\nunder § 10(b): If the § 10(b) claim is inadequate, then so is the § 20(a) claim.\\nSouthland Sec. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 383 (5th Cir.\\n2004). Allegations under § 10(b) and Rule 10b-5 must comply with the Private\\nSecurities Litigation Reform Act (PSLRA), which requires plaintiffs to “specify\\neach statement alleged to have been misleading, the reason or reasons why the\\nstatement is misleading, and, if an allegation regarding the statement or\\nomission is made on information and belief, . . . state with particularity all\\nfacts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(1). In pleading\\nscienter, plaintiffs must “state with particularity facts giving rise to a strong\\ninference that the defendant acted with the required state of mind.” Id. § 78u-\\n4(b)(2)(A).\\n III.\\n We agree with the district court that the investors have failed to plead a\\n“strong inference” of scienter. Scienter is a “mental state embracing intent to\\ndeceive, manipulate, or defraud.” Tellabs, Inc. v. Makor Issues & Rights, Ltd.,\\n551 U.S. 308, 319 (2007) (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185,\\n193 n.12 (1976)). Both intent and “severe recklessness” are sufficient.\\nNathenson v. Zonagen, Inc., 267 F.3d 400, 408–09 (5th Cir. 2001). Plaintiffs\\n 5\\n\\f Case: 18-10998 Document: 00515082201 Page: 6 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nproperly plead scienter when they allege that a company knowingly or\\nrecklessly made statements to the market while aware of facts that, if not\\ndisclosed, would render those statements misleading. See Plotkin v. IP Axess\\nInc., 407 F.3d 690, 696–97 (5th Cir. 2005).\\n The investors raise two challenges to the district court’s dismissal of\\ntheir original and amended complaints: (1) that in dismissing their original\\ncomplaint, the district court improperly analyzed their scienter allegations;\\nand (2) that the scienter allegations in their amended complaint were sufficient\\nto state a securities fraud claim. Neither argument persuades us that the\\ndistrict court erred.\\n A.\\n We have explained that a district court “may best make sense of scienter\\nallegations by first looking to the contribution of each individual allegation to\\na strong inference of scienter, especially in a complicated case[.]” Owens, 789\\nF.3d at 537. If any “single allegation, standing alone, create[s] a strong\\ninference of scienter,” then the court may stop there. Id. If it does not, then\\nthe district court must take “a holistic look at all the scienter allegations.” Id.\\n The investors contend that, in evaluating their original complaint, the\\ndistrict court failed to follow this analysis and instead analyzed all of their\\nallegations collectively under Diodes, which holds that, in four “special\\ncircumstances,” a defendant’s corporate title coupled with a severe problem\\nwithin the company sufficiently alleges scienter. Local 731 I.B. of T.\\nExcavators & Pavers Pension Tr. Fund v. Diodes, Inc., 810 F.3d 951, 959 (5th\\nCir. 2016). This was error, the investors argue, because Diodes does not apply\\nhere. They also complain that the district court failed to correct this error\\nwhen it dismissed their amended complaint. We disagree.\\n The district court’s order dismissing the original complaint first\\nconcluded that the investors failed to allege scienter because, inter alia,\\n 6\\n\\f Case: 18-10998 Document: 00515082201 Page: 7 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n(1) Smith and Turner lacked a motive to commit fraud; (2) Pier 1 “repeatedly\\ndisclosed . . . [its] increasing inventory, disappointing sales, and the risk of\\nmarkdowns”; and (3) the investors’ proffered “general accounts from\\nconfidential witnesses” did not support their scienter allegations. After\\nundertaking this evaluation of the investors’ allegations, the district court then\\nassessed whether Diodes applied and found that it did not because none of the\\nfour “special circumstances” were present here. This analysis did not run afoul\\nof our directives in Owens.\\n B.\\n We turn next to the investors’ amended complaint. The investors’\\nscienter theory relies on three categories of allegations: (1) allegations of\\nmotive; (2) allegations that Smith and Turner knew Pier 1 had high inventory;\\nand (3) allegations that Smith and Turner knew Pier 1 had significant\\nmarkdown risk. Each set of allegations falls short of creating the “strong\\ninference” of scienter required under the PSLRA.\\n 1.\\n “To demonstrate motive, plaintiffs must show ‘concrete benefits that\\ncould be realized by one or more of the false statements and wrongful\\nnondisclosures alleged.’” Ind. Elec. Workers’ Pension Tr. Fund IBEW v. Shaw\\nGrp., Inc., 537 F.3d 527, 543 (5th Cir. 2008) (quoting Phillips v. LCI Int’l, Inc.,\\n190 F.3d 609, 621 (4th Cir. 1999)). Motive is a critical—though not essential—\\naspect of a successful claim for securities fraud: “[A]llegations of motive . . .\\nmay enhance an inference of scienter[.]” Abrams v. Baker Hughes Inc., 292\\nF.3d 424, 434 (5th Cir. 2002). A failure to show motive means that “the\\nstrength of the circumstantial evidence of scienter must be correspondingly\\ngreater.” Neiman v. Bulmahn, 854 F.3d 741, 748 (5th Cir. 2017) (alteration\\nomitted) (quoting R2 Invs. LDC v. Phillips, 401 F.3d 638, 644 (5th Cir. 2005)).\\n\\n\\n 7\\n\\f Case: 18-10998 Document: 00515082201 Page: 8 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n The investors allege that Smith and Turner had two motives for\\nconcealing Pier 1’s markdown risk: (1) they “staked their careers” on 1 Pier 1,\\nwhich drove them to overstate the success of that initiative; and (2) their\\nemployment contracts promised them cash bonuses based on Pier 1’s earnings\\nbefore interest, tax, depreciation, and amortization. Neither motive finds\\nsupport in our precedent.\\n First, in Abrams, we held that a desire “to protect [one’s job in an]\\nexecutive position[]” was not “the type[] of motive that support[s] a strong\\ninference of scienter.” 292 F.3d at 434 (citing Melder v. URCARCO, 27 F.3d\\n1097, 1102 (5th Cir. 1994)). In the absence of “an allegation that the\\ndefendants profited from” the alleged fraud, an allegation of motive based on\\ncareer prospects is insufficient. Id. Therefore, the investors’ reliance on\\nSmith’s and Turner’s instincts for career survival fails to overcome the\\npleading hurdle.\\n As for the second motive allegation, we have held that “incentive\\ncompensation ‘can hardly be the basis on which an allegation of fraud is\\npredicated’” because “the vast majority of corporate executives” receive this\\ntype of compensation. Ind. Elec. Workers, 537 F.3d at 544 (quoting Tuchman\\nv. DSC Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994)). However, in a\\nlimited set of circumstances—when the potential bonus is extremely high and\\nother allegations support an inference of scienter—performance-based\\ncompensation can establish motive. See Barrie, 397 F.3d at 261. In Barrie, the\\ndefendant received a performance-based bonus that was 175 percent of his base\\nsalary, and we held that his compensation package contributed to a strong\\ninference of scienter. Id.\\n But Barrie is not this case. Here, even the lowest possible performance-\\nbased bonuses that Smith and Turner could receive—which were only 11.5\\npercent and 8 percent of their respective base salaries—proved to be well out\\n 8\\n\\f Case: 18-10998 Document: 00515082201 Page: 9 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nof reach: Pier 1’s Fiscal Year 2015 earnings before interest, tax, depreciation,\\nand amortization were $60 million lower than the lowest target number in\\ntheir employment contracts. Although these contracts also included potential\\nbonuses as high as 288 percent and 200 percent of Smith’s and Turner’s base\\nsalaries, Pier 1’s earnings were $125 million shy of the target number for those\\nbonuses. Accordingly, because the likelihood that Smith and Turner would\\nactually receive these high-level bonuses was quite small, Barrie does not\\napply here. We reject the investors’ motive allegations as creating any\\ninference of scienter, much less a strong one.\\n 2.\\n The investors make the following allegations related to Smith’s and\\nTurner’s knowledge that Pier 1’s inventory was high:\\n (1) Smith made comments at an employee “town hall” meeting in\\n March 2014 admitting that the company overbought inventory;\\n (2) Smith knew of the company’s failure to meet its sales goals and\\n the resultant decision not to pay bonuses;\\n (3) Smith knew about the company’s “inventory problems” and, in\\n 2013, directed the company to end the use of temporary storage\\n at stores;\\n (4) Smith had a conversation with another executive regarding a\\n 1,000-container backlog at Pier 1’s Baltimore distribution\\n center;\\n (5) The company received regular contemporaneous reports on\\n sales figures, inventory, and purchases;\\n (6) Pier 1 had large inventory backlogs at its stores and\\n distribution centers; and\\n (7) Smith and Turner made Sarbanes-Oxley certifications of SEC\\n filings that stated that the company made “conservative\\n inventory purchases.”\\n\\n We note at the outset that, even if we were to assume that all of these\\nallegations satisfy the requisite pleading standards, they would not, standing\\n\\n 9\\n\\f Case: 18-10998 Document: 00515082201 Page: 10 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nalone, create a strong inference of scienter. After all, the investors do not allege\\nthat Smith and Turner misrepresented Pier 1’s inventory. To the contrary, the\\nabove allegations include several public disclosures of Pier 1’s high-inventory\\nproblem. Instead, the investors’ theory of the case is that Smith and Turner\\nmisled the public about Pier 1’s ability to offload that excessive inventory\\nwithout significant markdown risk: Their amended complaint alleges that\\n“Pier 1 repeatedly assured investors that . . . its increasing inventory was\\n‘clean’ and did not present ‘immediate,’ ‘significant,’ or ‘substantial’ markdown\\nrisk.”\\n Knowledge of high inventory does not necessarily equate to knowledge\\nof significant markdown risk—an equally plausible inference is that Smith and\\nTurner reasonably believed they could fix the excessive inventory problem\\nwithout resorting to markdowns. See Abrams, 292 F.3d at 433 (“[I]nventory\\nwrite downs . . . can easily arise from negligence, oversight or simple\\nmismanagement, none of which rise to the standard necessary to support a\\nsecurities fraud action.”). Thus, even if they have adequately alleged that\\nSmith and Turner knew about Pier 1’s high inventory, the investors must still\\nallege facts demonstrating an “intent to deceive” or at least “severe\\nrecklessness” relating to Smith’s and Turner’s failure to disclose Pier 1’s\\nmarkdown risk. See Tellabs, 551 U.S. at 319; Nathenson, 267 F.3d at 409.\\n The “high inventory” allegations also suffer from other defects that cast\\ndoubt on their sufficiency to create a strong inference of scienter under the\\nPSLRA. We briefly address each allegation in turn.\\n First, the investors point to Smith’s comments at an employee town-hall\\nmeeting in March 2014—before the Class Period. At this meeting, Smith\\nshowed a PowerPoint slide with the phrase, “[w]e became victims of our own\\nambition.” The investors cite meeting attendees who said that this slide\\nreferred to overbuying inventory and that Smith admitted that this was a\\n 10\\n\\f Case: 18-10998 Document: 00515082201 Page: 11 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nmistake and that it was his “fault.” The investors rely on In re Dynegy, Inc.\\nSecurities Litigation, where a district court found a strong inference of scienter\\nwhen the defendant allegedly “held an all-hands meeting” and falsely told\\nemployees that trades at issue were made as stress tests of a new energy\\ntrading platform. 339 F. Supp. 2d 804, 901 (S.D. Tex. 2004).\\n This allegation pertains to backward-looking statements about events\\nthat took place outside of the Class Period, which cannot establish scienter.\\nSee Southland, 365 F.3d at 383 (“[F]raud cannot be proved by hindsight.”). In\\naddition, as Pier 1 notes, the information Smith shared was apparently\\ndistributed to—not concealed from—the investors before and after the\\nmeeting. Moreover, In re Dynegy is distinguishable because the investors do\\nnot allege that Smith’s statements at the meeting were false. Cf. 339 F. Supp.\\n2d at 901.\\n Second, the investors allege that Smith saw that the company failed to\\nmeet sales goals and, as a result, did not authorize any employee bonuses at\\nany point during the Class Period. According to the investors, Smith himself\\nsigned at least one letter informing employees that no bonuses would be paid.\\nHowever, this bonus information was repeatedly disclosed to the public and\\ntherefore does not reveal any “secret” information that Smith and Turner were\\ntrying to hide.\\n Third, the investors allege that a confidential witness reported that\\n“[d]uring at least one inventory review meeting in mid-2014, Smith\\nacknowledged that inventory problems were pervasive.” The investors allege\\nthat Smith knew that the problem was pervasive because he knew that Pier 1\\nwas resorting to temporary storage units at hundreds of stores. Smith knew\\nabout these temporary units, the investors allege, because Smith himself\\nordered Pier 1 to stop using the temporary storage units in late 2013.\\n\\n\\n 11\\n\\f Case: 18-10998 Document: 00515082201 Page: 12 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n We note first that “courts must discount allegations from confidential\\nsources.” Ind. Elec. Workers, 537 F.3d at 535. Also, Smith’s 2013 directive to\\nstop using temporary storage units was made well before the Class Period,\\nwhich began in April 2014. This allegation is also vague: it shows only that\\nthere were amorphous “inventory problems” and does not explain what those\\nproblems were.\\n Fourth, the investors allege that Pier 1’s former Director of Distribution\\nand Transportation reported that Smith asked him about almost 1,000 trailers\\nfull of inventory parked outside Pier 1’s Baltimore distribution center. The\\ninvestors assert that these containers housed old inventory not available for\\nsale and Pier 1 failed to process the inventory into its distribution network.\\nThe investors analogize to City of Pontiac General Employees’ Retirement\\nSystem v. Dell Inc., 2016 WL 6075540 (W.D. Tex. Sept. 16, 2016), in which the\\ncourt found that scienter was adequately pleaded because the plaintiffs alleged\\nthat the defendant’s company had “ballooning inventories and operations\\ndeficiencies within its sales divisions . . . resulting in stagnant growth, stalling\\nshipments, and stockpiling inventories[.]” Id. at *4. Just as in that case, the\\ninvestors argue, their complaint alleged that Smith was aware of excessive\\ninventory that was not getting sold quickly enough.\\n We disagree that City of Pontiac applies here. In that case, the plaintiffs\\nalleged that the defendants “were aware of undisclosed facts that would\\nundermine the accuracy of their forward-looking statements.” Id. at *3\\n(emphasis added). But mere knowledge of an inventory backlog would have\\nbeen known to anyone who looked at Pier 1’s earning statements. As we have\\nexplained, the investors do not allege that Pier 1 misstated the amount of its\\ninventory, its costs, or its sales figures. Moreover, this Baltimore-specific\\nallegation says nothing about inventory problems across Pier 1’s other five\\ndistribution centers and thousands of stores.\\n 12\\n\\f Case: 18-10998 Document: 00515082201 Page: 13 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n Fifth, the investors allege that the company received “numerous daily,\\nweekly, and monthly reports on sales figures, inventory figures, and purchases\\nthat would increase inventory.” The investors cite employees who either\\ndrafted, sent, or saw these reports. The reports allegedly “showed the current\\nsales plan and the actual results every quarter, compared inventory to sales,”\\nand demonstrated that “extremely aggressive sales goals could not be met” in\\n2014.\\n Internal corporate reports can support a strong inference of scienter only\\nwhen they meet two requirements: (1) the complaint has corroborating details\\nof the reports’ contents, authors, and recipients; and (2) the reports are\\nconnected to the speaking executive in a persuasive way. Neiman, 854 F.3d at\\n748. As the district court concluded, the first element is not satisfied in this\\ncase because the investors do not allege that any of these reports revealed the\\ninformation that is relevant here: the existence of significant markdown risk\\n(as opposed to merely high inventory).\\n Sixth, the investors argue broadly that Pier 1 had a lot of inventory\\nbacklogs at stores and distribution centers. For example, the investors allege\\nthat Pier 1 “distribution centers were bursting at the seams with inventory,”\\nthat (before the Class Period) “stores began telling headquarters that they\\ncould not take more inventory,” and that “2014 Christmas merchandise could\\nnot reach stores in time because of inventory backlogs.” However, these\\nstatements are all from confidential witnesses who do not relate any\\ninteraction with Smith or Turner, so we must discount them. See Ind. Elec.\\nWorkers, 537 F.3d at 535. In addition, the investors “fail to tie these\\nstatements” to the alleged fraud: like in Indiana Electric Workers, the fact that\\nPier 1 had high inventory “does not necessarily lead to the conclusion that” the\\ncompany intentionally concealed that fact or otherwise failed to disclose\\nsignificant markdown risk. Id. at 537.\\n 13\\n\\f Case: 18-10998 Document: 00515082201 Page: 14 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n Seventh, the investors allege that Smith’s and Turner’s Sarbanes-Oxley\\ncertifications of SEC filings support a strong inference of scienter. Sarbanes-\\nOxley certifications support scienter only if there are “facts establishing that\\nthe officer who signed the certification had a ‘reason to know, or should have\\nsuspected, due to the presence of glaring accounting irregularities or other “red\\nflags,” that the financial statements contained material misstatements or\\nomissions.’” Id. at 545 (quoting Garfield v. NDC Health Corp., 466 F.3d 1255,\\n1266 (11th Cir. 2006)). As the district court observed, the investors have not\\nalleged these essential facts.\\n Having evaluated the investors’ “high inventory” allegations de novo, we\\nconclude that they fall far short of establishing a strong inference of scienter,\\neither individually or taken together.\\n 3.\\n We move on to consider the final category of allegations the investors\\noffer: allegations that Smith and Turner knew that Pier 1 faced significant\\nmarkdown risk. The company argues that the investors have not created a\\nstrong inference of scienter because there is an equally plausible inference to\\nbe drawn from Smith’s and Turner’s knowledge of Pier 1’s high inventory: that\\nSmith and Turner genuinely and reasonably believed that they could get rid of\\nthat excessive inventory by buying less new inventory and selling the existing\\ninventory gradually at market prices. The company suggests that this\\nalternative explanation is more compelling because Pier 1 kept ordering\\ninventory, which would be reasonable if Smith and Turner believed they could\\nsell it fairly quickly, but unreasonable if they knew they could not.\\n As we explained, to establish scienter, the investors must allege that\\nSmith and Turner knew of significant markdown risk and either intentionally\\nor severely recklessly failed to disclose it to investors. See Plotkin, 407 F.3d at\\n696–97. Accordingly, this final category of allegations attempts to disprove the\\n 14\\n\\f Case: 18-10998 Document: 00515082201 Page: 15 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\ncompany’s alternative explanation by demonstrating that Smith and Turner\\naffirmatively knew that they could not sell Pier 1’s high inventory without\\nmarking it down significantly. Specifically, the investors allege the following:\\n (1) Pier 1’s products are all subject to immediate markdown risk\\n because of their seasonal nature;\\n (2) Pier 1 held clearance sales events beginning in May 2015;\\n (3) Various other “red flags” put Smith and Turner on notice of\\n Pier 1’s markdown risk; and\\n (4) Item 303 of Regulation S-K required Smith and Turner to\\n disclose “reasonably expect[ed]” markdown risk.\\n\\nWe will address each in turn.\\n First, the investors allege that “Pier 1’s products are particularly subject\\nto markdown risk because Pier 1 is a trend-based fashion retailer” that is\\nsubject to the whims of “consumer trends.” Once the fashion changes, the\\ninvestors’ theory goes, any inventory that Pier 1 still has can no longer be sold\\nwithout significantly marking down the price. This logic finds support in the\\nSecond Circuit’s decision in Novak v. Kasaks, which found scienter when the\\nplaintiffs alleged that women’s apparel retailer Ann Taylor sat on years of out-\\nof-style clothing without marking down its inventory value. 216 F.3d 300, 311–\\n12 (2d Cir. 2000). The investors cite the company’s own statements in support\\nof this allegation. For example, they emphasize that in December 2016, Smith\\nsaid that Pier 1’s “products reflect current fashion trends.” They also highlight\\nthe following statement in the company’s SEC filings: “The success of the\\nCompany’s specialty retail business depends largely upon its ability to predict\\ntrends in home furnishings consistently and to provide merchandise that\\nsatisfies customer demand in a timely manner.” 2\\n\\n\\n\\n 2The investors also rely on an expert report that was attached to their amended\\ncomplaint. However, the district court struck the report, so we do not consider it. See Munoz\\n 15\\n\\f Case: 18-10998 Document: 00515082201 Page: 16 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n Pier 1 responds by criticizing this characterization of its business.\\nSpecifically, Pier 1 contends that it never describes itself as a “trend-based\\nfashion retailer” subject to markdown risk. Instead, while some of the products\\nare designed to be predictive of trends in home décor, a large percentage of its\\ninventory is, as the district court noted, comprised of “long-standing\\ncollections” of “products that do well for [Pier 1] day in and day out.” For\\nexample, Pier 1 emphasized in its brief and at oral argument that\\napproximately 50 percent of its inventory during the Class Period was “rebuy”\\ngoods, such as the company’s well-known papasan chair. Pier 1 points out that\\nthe investors even acknowledge in their complaint that Pier 1’s inventory\\nincludes “durable or ‘regular rebuy’” inventory.\\n We are persuaded by Pier 1’s arguments: The investors’ allegations do\\nnot create a “strong inference” that all (or even most) of Pier 1’s inventory is so\\ntrend driven that it could not be sold without significant markdowns. First,\\nthe investors’ general allegation that Pier 1 is a “trend-based fashion retailer”\\nis conclusory. Even at the pleading stage, we need not take such statements\\nas true. See Cent. Laborers Pension Fund v. Integrated Elec. Servs., Inc., 497\\nF.3d 546, 550 (5th Cir. 2007) (“[W]e do not accept as true conclusory\\nallegations, unwarranted factual inferences, or legal conclusions.”). Turning\\nto the specific, non-conclusory facts that the investors offer, Smith’s 2016\\nstatement was made outside the Class Period, and the statement in the SEC\\nfilings is too vague—it does not say whether all inventory must be sold timely\\nor precisely how timely the inventory needs to be sold. Ultimately, the\\ninvestors’ argument is self-defeating: they must allege both that Pier 1 said\\nthat all of its inventory is subject to markdown risk if not sold quickly (to\\n\\n\\n\\nv. Orr, 200 F.3d 291, 303 (5th Cir. 2000) (declining to consider evidence that was struck and\\ntherefore “not before the district court”).\\n 16\\n\\f Case: 18-10998 Document: 00515082201 Page: 17 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\ncharacterize Pier 1 as a trend-driven business) and, in the same breath, that\\nPier 1 did not say that (to make an allegation of fraud). The investors cannot\\nhave it both ways. And the investors have not explained why Pier 1 executives\\nkept ordering more inventory when they supposedly knew deep down that they\\nwould not be able to sell it.\\n Second, the investors allege that Smith and Turner must have known\\nabout looming markdown risk because the company published ads announcing\\n“extraordinary markdowns (up to 50% and 70%)” in clearance sales starting in\\nMay 2015. However, the investors first referenced these ads in their response\\nto the motion to dismiss their amended complaint—they did not plead these\\nfacts. See Lohr v. Gilman, 248 F. Supp. 3d 796, 810 (N.D. Tex. 2017) (“A\\nplaintiff may not amend [its] complaint in [its] response to a motion to\\ndismiss.”). In addition, as Pier 1 points out, the investors’ reliance on these\\nsales is merely a temporal-proximity argument: the allegation asserts only that\\nPier 1 said in April 2015 that there was not much markdown risk and then had\\na sale in May 2015. Temporal proximity is weak circumstantial evidence of\\nfraud. See Coates v. Heartland Wireless Commc’ns, Inc., 55 F. Supp. 2d 628,\\n641 n.18 (N.D. Tex. 1999).\\n Third, the investors point to an array of “red flags” that they allege\\nshould have put Smith and Turner on notice of looming markdown risk.\\nBecause these “red flags” were set out in an expert report that the district court\\nstruck, we cannot consider them. See Munoz, 200 F.3d at 303 (declining to\\nconsider evidence that was struck and therefore “not before the district court”).\\n Fourth, the investors allege that Pier 1 had a duty to disclose markdown\\nrisk under Item 303 of Regulation S-K, which directs companies, when filing\\nwith the SEC, to “[d]escribe any known trends or uncertainties . . . that the\\nregistrant reasonably expects will have a material . . . unfavorable impact\\non . . . revenues.” 17 C.F.R. § 229.303(a)(3)(ii). We have never held that Item\\n 17\\n\\f Case: 18-10998 Document: 00515082201 Page: 18 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\n303 creates a duty to disclose under the Securities Exchange Act, and other\\ncircuits are split. Compare Stratte-McClure v. Morgan Stanley, 776 F.3d 94,\\n102 (2d Cir. 2015) (“Item 303 imposes the type of duty to speak that can, in\\nappropriate cases, give rise to liability under Section 10(b).”), with In re\\nNVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1056 (9th Cir. 2014) (“Item 303 does\\nnot create a duty to disclose for purposes of Section 10(b) and Rule 10b-5.”).\\n In any event, we need not address this issue because the investors’\\nargument assumes its conclusion: that Smith and Turner “reasonably\\nexpect[ed]” that the high inventory ran the risk of significant markdowns.\\nMoreover, as the district court noted, Pier 1 did disclose these facts when it\\nannounced in December 2015—at the end of the Class Period—that it would\\ntake eighteen months to clear Pier 1’s inventory. The investors need other,\\nindependent allegations showing that Smith or Turner reasonably expected\\nthat excess inventory levels would have a material unfavorable impact on\\nrevenues at some point prior to the December announcement.\\n In summary, we conclude that the investors’ allegations that Smith and\\nTurner knew that Pier 1 had significant markdown risk fail to create a strong\\ninference of scienter. The investors’ scienter theory suffers from defects similar\\nto the appellants’ theory in Diodes. As in that case, rather than concealing its\\ninventory problem, Pier 1 “repeatedly alerted investors” that the problem\\n“would affect the company’s output” throughout the Class Period. See Diodes,\\n810 F.3d at 960. Moreover, like in Diodes, Smith’s and Turner’s conduct belied\\nany attempt to conceal the impact of that problem: were Pier 1 “attempting to\\nconceal” significant markdown risk, continuing to order inventory “would be\\ncounterproductive.” See id. at 960. Thus, because none of the investors’\\n\\n\\n\\n\\n 18\\n\\f Case: 18-10998 Document: 00515082201 Page: 19 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-10998\\nscienter allegations satisfy the pleading standards of Rule 9(b) and the PSLRA,\\nwe hold that they have not adequately alleged a securities fraud claim. 3\\n IV.\\n For the reasons described, we AFFIRM the district court’s judgment of\\ndismissal.\\n\\n\\n\\n\\n 3 Pier 1 also argues that the amended complaint fails to allege actionable\\nmisrepresentations, another element of a § 10(b) claim. Dura Pharm., 544 U.S. at 341–42.\\nBecause we conclude that the investors’ scienter allegations are inadequate, we do not reach\\nthis issue.\\n 19\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3680,"cells":{"id":{"kind":"number","value":4649551,"string":"4,649,551"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Enriqueta Moore v. LA Dept of Pub Sfty, et"},"decision_date":{"kind":"string","value":"2019-08-19"},"docket_number":{"kind":"string","value":"18-30323"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-30323 Document: 00515082072 Page: 1 Date Filed: 08/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 19, 2019\\n No. 18-30323\\n Lyle W. Cayce\\n Clerk\\nAMY MCDONALD NOBRE, on behalf of K.M.C.; CHASTITY GUIDRY, on\\nbehalf of L.G.,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nLOUISIANA DEPARTMENT OF PUBLIC SAFETY; JERRY GOODWIN,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Louisiana\\n\\n\\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n The mother of a Louisiana inmate filed suit against state prison officials\\nalleging Eighth Amendment violations and state-law wrongful death and\\nsurvival claims arising out of her son’s death. A year later, she learned that\\nher son had two children. Under Louisiana law, these children were the proper\\nparties to bring the action, and so she substituted their natural tutors, Amy\\nNobre and Chastity Guidry, as plaintiffs. But the substitution occurred after\\nexpiration of the statutory limitations period. We must determine whether the\\nsubstitution relates back to the date of the initial complaint. We hold that it\\n\\f Case: 18-30323 Document: 00515082072 Page: 2 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\ndoes, REVERSE the district court’s dismissal of Nobre and Guidry’s wrongful\\ndeath and 42 U.S.C. § 1983 claims, and remand for further proceedings.\\n I.\\n According to the pleadings, inmates arriving at the Louisiana\\nDepartment of Corrections’ David Wade Correctional Center were routinely\\nissued two combination locks. In the first two months of 2016, the Center\\nexperienced two incidents in which an inmate attacked another using a lock as\\na weapon. The Department nonetheless allowed inmates to retain locks. On\\nFebruary 11, 2016, while inmate Kenneth Cotton was sleeping in his bed,\\nanother inmate, Anthony Tellis, beat Cotton, striking his head with a lock and\\nfracturing his skull. Prison staff transported Cotton to a hospital, where he\\nunderwent brain surgery, but died from his injuries on February 20, 2016.\\n On September 14, 2016, Cotton’s mother, Enriqueta Moore, filed a\\npetition for damages in Louisiana’s Second Judicial District Court for the\\nParish of Claiborne, naming the attacker Tellis, the Department of\\nCorrections, the David Wade Center’s warden, and the Department’s insurers\\nas defendants. Moore alleged that the defendants failed to protect Cotton from\\nbodily harm, allowed inmates to possess combination locks that defendants\\nknew would be used as weapons, failed adequately to train staff to supervise\\nprisoners, failed to provide timely medical attention to Cotton, caused Cotton\\nphysical harm, and otherwise committed acts of negligence. Moore also alleged\\nthat the Department, warden, and their agents inflicted extreme emotional\\ndistress upon her, deceiving her as to Cotton’s health status following the\\nattack, and preventing her from seeing or speaking with her son between the\\nattack and his death. Moore sought damages under Louisiana’s wrongful death\\nand survival action statutes, and Section 1983. As Cotton’s mother, Moore\\nalleged she was the proper party to bring the action.\\n\\n\\n 2\\n\\f Case: 18-30323 Document: 00515082072 Page: 3 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\n On October 20, 2016, the Department and the warden filed a Notice of\\nRemoval in the United States District Court for the Western District of\\nLouisiana. They stated that Moore’s suit “assert[s] federal claims under 42\\nU.S.C. § 1983,” and that the district court “ha[d] jurisdiction of this cause of\\naction under 28 U.S.C. § 1331, federal question jurisdiction.”\\n On March 8, 2017, Moore moved for leave to file an amended complaint.\\nSince filing her original complaint, Moore had learned that Cotton had two\\nminor children. Under Louisiana law, these children were the proper parties\\nto bring the action, and so Moore substituted the children’s natural tutors—\\ntheir mothers Amy Nobre and Chastity Guidry—as plaintiffs. The amended\\ncomplaint otherwise “reiterate[d] all allegations, theories of recovery and\\nremedies which were listed and set forth in the allegations and prayer of the\\noriginal Complaint.” The district court granted Moore’s motion for leave to\\namend.\\n The Department and warden moved to dismiss Nobre and Guidry’s\\naction as untimely. Pointing out that the district court looks to state law for\\nthe limitations period in Section 1983 suits, the defendants argued that the\\nrelevant limitations period under Louisiana Civil Code Article 3492 was one\\nyear running from Cotton’s death. Although Moore’s original complaint was\\nfiled during the limitations period, Moore was not the proper party to bring the\\naction. The amended complaint substituted the correct plaintiffs, but was filed\\nsixteen days after the limitations period had expired.\\n Nobre and Guidry responded that the amended complaint related back\\nto the filing of the original complaint. While Moore only learned of Cotton’s\\nchildren in March 2017, Nobre and Guidry argued the defendants knew of the\\nchildren earlier. The plaintiffs attached for the first time a “Master Record\\nInquiry,” a document prepared by the David Wade Correctional Center in\\nwhich Cotton was described as the father of two children.\\n 3\\n\\f Case: 18-30323 Document: 00515082072 Page: 4 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\n Refusing to consider evidence beyond the pleadings, the district court\\ngranted the defendants’ motion to dismiss. “Out of an abundance of caution,”\\nthe district court analyzed the relation-back issue under both Louisiana law\\nand Rule 15(c). It held that, under both, relation back was not permitted\\nbecause the pleadings did not establish that the defendants knew of Cotton’s\\nchildren. Nobre and Guidry appeal the dismissal of their wrongful death claim\\nand associated Section 1983 claim for wrongful death damages. 1\\n II.\\n A.\\n We have jurisdiction to hear this appeal. The well-pleaded complaint\\npresents a federal question. 2 It alleges that Cotton was an inmate in state\\ncustody, that state officials failed to protect him and failed to provide him with\\nadequate medical care, and that he died as a result. These facts support\\ncolorable claims under Section 1983 to redress violations of Cotton’s rights\\nunder the Eighth and Fourteenth Amendments 3 to be free from officials’\\ndeliberate indifference to substantial risks of serious harm, including via the\\nprovision of adequate medical care, 4 and thus a federal question. The appeal\\nchallenges a final judgment of the district court. 5 We review the district court’s\\ngrant of a motion to dismiss de novo. 6 In reviewing such a decision, we accept\\n\\n\\n\\n 1 Appellants’ counsel stated during oral argument that appellants have waived their\\nsurvival related claims.\\n 2 The amended complaint incorporates by reference Moore’s original complaint.\\n 3 If Cotton was a pretrial detainee—unlikely, given that he was incarcerated in the\\n\\nCenter since 2006—his claims would arise only under the Fourteenth Amendment. Hare v.\\nCity of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc) (“The constitutional rights of a\\npretrial detainee . . . flow from both the procedural and substantive due process guarantees\\nof the Fourteenth Amendment.”); id. at 643 (holding that a pretrial detainee may challenge\\n“episodic acts or omissions” of individual officials where these officials acted with deliberate\\nindifference).\\n 4 Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 754–55 (5th Cir. 2001).\\n 5 28 U.S.C. § 1291.\\n 6 Hines v. Alldredge, 783 F.3d 197, 200–01 (5th Cir. 2015).\\n\\n 4\\n\\f Case: 18-30323 Document: 00515082072 Page: 5 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\nall well-pleaded facts as true and view those facts in the light most favorable\\nto the plaintiff. 7\\n B.\\n As Section 1983 does not provide a relevant limitations period, we look\\nto the law of the forum state. 8 Here, the parties agree that in analogous\\ndelictual actions under the Louisiana Civil Code, plaintiffs must file within one\\nyear of the decedent’s death. 9\\n Cotton died on February 20, 2016. Moore’s original complaint was filed\\non September 14, 2016, within the relevant limitation periods; Nobre and\\nGuidry’s amended complaint was filed on March 9, 2017, after that period had\\nexpired. To determine whether the amended complaint relates back to Moore’s\\noriginal complaint, the court applies Federal Rule of Civil Procedure 15(c)(1). 10\\nThis Rule provides:\\n An amendment to a pleading relates back to the date of the original\\n pleading when:\\n (A) the law that provides the applicable statute of limitations\\n allows relation back;\\n (B) the amendment asserts a claim or defense that arose out of\\n the conduct, transaction, or occurrence set out—or\\n attempted to be set out—in the original pleading; or\\n (C) the amendment changes the party or the naming of the\\n party against whom a claim is asserted, if Rule 15(c)(1)(B) is\\n satisfied and if, within the period provided by Rule 4(m) for\\n serving the summons and complaint, the party to be brought\\n in by amendment:\\n (i) received such notice of the action that it will not be\\n prejudiced in defending on the merits; and\\n\\n\\n 7 Id. at 201.\\n 8 Braden v. Texas A & M Univ. Sys., 636 F.2d 90, 92 (5th Cir. 1981).\\n 9 LA. CIV. CODE art. 2315.2.\\n 10 See Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010) (applying\\n\\nstate-law statute of limitations and Rule 15 for relation back in a Section 1983 suit).\\n 5\\n\\f Case: 18-30323 Document: 00515082072 Page: 6 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\n (ii) knew or should have known that the action would have\\n been brought against it, but for a mistake concerning the\\n proper party’s identity. 11\\nRule 15(c) refers only to amendments changing defendants, but the Advisory\\nCommittees’ Notes to the Rule state that,\\n [R]elation back of amendments changing plaintiffs is\\n not expressly treated in revised Rule 15(c) since the\\n problem is generally easier. Again the chief\\n consideration of policy is that of the statute of\\n limitations, and the attitude taken in\\n revised Rule 15(c) toward change of defendants\\n extends by analogy to amendments changing\\n plaintiffs. 12\\n\\nThe Louisiana Supreme Court describes the policy of the Louisiana statute of\\nlimitations as “afford[ing] a defendant economic and psychological security if\\nno claim is made timely, and . . . protect[ing] him from stale claims and from\\nthe loss of non-preservation of relevant proof.” 13\\n Applying Rule 15(c)(1)(A), we begin by asking whether “the law that\\nprovides the applicable statute of limitations”—Louisiana law—allows relation\\nback. 14 Louisiana’s relation-back doctrine as applied to the substitution of\\nplaintiffs is governed by the test set out by the Louisiana Supreme Court in\\nGiroir v. South Louisiana Medical Center. In that case, the husband of a\\nwoman who died during medical treatment sued the hospital under Louisiana’s\\nwrongful death and survival statutes. 15 After the limitations period expired,\\nthe plaintiffs amended the complaint to add the decedent’s children as\\nplaintiffs on both claims. 16 The hospital had actual knowledge of the existence\\n\\n\\n 11 FED. R. CIV. P. 15(c)(1).\\n 12 FED. R. CIV. P. 15 (1966 Amendment Notes).\\n 13 Giroir v. S. La. Med. Ctr., 475 So. 2d 1040, 1045 (La. 1985).\\n 14 FED. R. CIV. P. 15(c)(1)(A).\\n 15 Giroir, 475 So. 2d at 1041–42.\\n 16 Id.\\n\\n 6\\n\\f Case: 18-30323 Document: 00515082072 Page: 7 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\nof the children. 17 The Louisiana Supreme Court held that the amended claims\\nrelated back because they met four criteria: (1) the amended claims arose out\\nof the same conduct, transaction, or occurrence set forth in the original\\npetition—namely, the decedent’s death; (2) the defendant either knew or\\nshould have known of the existence and involvement of the new plaintiffs—the\\nhospital had actual notice of the children’s existence; (3) the new and the old\\nplaintiffs were sufficiently related so that the added or substituted parties\\nwere not wholly new or unrelated—addition of the children “d[id] not change\\nthe basic underlying claim”; and (4) the defendant was not prejudiced in\\npreparing and conducting its defense. 18\\n Here, as in Giroir, the amended claims arise out of the same conduct and\\noccurrence set forth in the original complaint, namely the prison’s alleged role\\nin Cotton’s death. In fact, the amended complaint differs from Moore’s original\\npleading only with respect to who is bringing the claims. Formally, the\\nunderlying harms suffered by Cotton’s children are independent from those\\nsuffered by Moore—this was true also in Giroir. But Cotton’s children and\\nCotton’s mother are closely related, and the substitution of the decedent’s\\nfamily members as plaintiffs leaves the basic underlying facts and claim\\nunchanged. 19\\n Defendants argue that, unlike the defendant hospital in Giroir, they\\nlacked knowledge of Cotton’s children. The district court accepted this\\nargument, confining its analysis to the pleadings, which alleged that Cotton\\nwas the father of the two children but made no mention of the Department’s or\\nthe warden’s knowledge of Cotton’s children—an allegation not necessary to\\n\\n\\n 17 Id. at 1045.\\n 18 Id. at 1044–45.\\n 19 See id. at 1045 (“Clearly, the children are not wholly new or unrelated to their\\n\\nfather with respect to actions based on the death of their mother, and the addition of them\\nas plaintiffs does not change the basic underlying claim.”).\\n 7\\n\\f Case: 18-30323 Document: 00515082072 Page: 8 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\nstate a claim, but relevant to the defense of limitations. This was in error. A\\nplaintiff is not required to anticipate or overcome affirmative defenses, such as\\nexpiration of the statute of limitations, in the complaint. 20 When the\\ndefendants raised the affirmative defense of expiration of the limitations\\nperiod in their motion to dismiss, the court was not prohibited from considering\\nsources beyond the pleadings to inform the relation-back analysis. 21\\n It was also error for the district court to hold that the Master Record\\nInquiry’s meaning was subject to reasonable dispute. That document’s\\nmeaning is not equivocal. It states of Cotton, “Children: 02.” The document\\nunambiguously indicates that the Department—which produced and\\nmaintained this document—knew of Cotton’s two children. According to the\\ndistrict court, while the Master Record Inquiry records Cotton as having two\\nchildren, it provides “no proof that these children are filiated to Cotton.” But\\nthe requirement of filiation, that is, a judicial determination of paternity, 22 was\\nmisplaced. Under Louisiana law, “all children have the right to bring an action\\nfor wrongful death” of their parent. 23 However, children born out of wedlock\\n\\n\\n 20 Gomez v. Toledo, 446 U.S. 635, 640 (1980) (finding “no basis for imposing on the\\nplaintiff an obligation to anticipate” an affirmative defense and to address it in the\\ncomplaint); see also United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (“[C]omplaints\\ndo not have to anticipate affirmative defenses to survive a motion to dismiss.”); Braden v.\\nWal-Mart Stores, Inc., 588 F.3d 585, 601 n.10 (8th Cir. 2009) (“[A] plaintiff need not plead\\nfacts responsive to an affirmative defense before it is raised.”).\\n 21 Woods Expl. & Producing Co. v. Aluminum Co. of Am., 438 F.2d 1286, 1300 (5th\\n\\nCir. 1971) (holding that an amendment related back where “[t]he compendious record in this\\ncase justifies our conclusion that no one was litigating in darkness”); see also U.S. ex rel.\\nBledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 516–18 (6th Cir. 2007) (holding that extrinsic\\nevidence can be considered in determining whether a defendant was on notice of the\\nplaintiff's claims for the purpose of Rule 15(c)(2)); 6A CHARLES ALAN WRIGHT ET AL., FED.\\nPRAC. & PROC. CIV. § 1497 (3d ed.) (Apr. 2019 update) (describing decisions that have held “it\\nis sufficient if the opposing party was made aware of the matters to be raised by the\\namendment from sources other than the pleadings,” and commenting that “[t]his position\\nseems sound since it is unwise to place undue emphasis on the particular way in which notice\\nis received”).\\n 22 Filiation, BLACK’S LAW DICTIONARY (11th ed. 2019).\\n 23 Jenkins v. Mangano Corp., 774 So. 2d 101, 103 (La. 2000).\\n\\n 8\\n\\f Case: 18-30323 Document: 00515082072 Page: 9 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\nface an additional proof in their claim. An individual born out of wedlock is\\ndeemed the child of the parent only where the individual’s “filiation to the\\nparent has been determined in the manner provided by law,” 24 namely by “an\\naction to prove paternity” under article 197 of the Code. 25 Therefore, where an\\nillegitimate child of the decedent brings a wrongful death claim “[a] filiation\\naction inherently accompanies [the] illegitimate child’s wrongful death . . .\\naction[,] [e]ven if an illegitimate child plaintiff does not specifically plead a\\nfiliation action.” 26 Filiation can be established by the father’s formal\\nacknowledgement—being named on the child’s birth certificate—or by clear\\nand convincing evidence of informal acknowledgment—for example, writings,\\nthe father’s “living in concubinage with the mother in his home at the time of\\nthe child’s conception,” sharing a common surname, or the father’s\\nrepresentations to his community. 27 Here, the Master Record Inquiry indicates\\nthat Cotton’s marital status was “single,” and that, at least to prison officials,\\nhe acknowledged his paternity relative to two children, both presumably born\\nout of wedlock. If this is accurate, proof of filiation will be part of Nobre and\\nGuidry’s burden in this case. But it is not a prerequisite to finding that the\\ndefendants knew Cotton had children for purposes of the relation-back notice\\nanalysis.\\n\\n\\n\\n\\n 24 LA. CIV. CODE art. 3506(8).\\n 25 Id. art. 197. “A biological relationship between the tort victim and the plaintiff child\\nis a ‘critical element’ of a claim arising under Louisiana Civil Code article 2315. A man is\\npresumed to be a child’s father when the child is born during his marriage to the mother or\\n‘within three hundred days from the date of the termination of the marriage.’ If the child’s\\nfiliation is not presumed, the child can initiate an action to establish paternity under\\nLouisiana Civil Code article 197 to prove paternity in a lawful manner.” Henderson v. Turner,\\n2012 WL 3109482, at *3 (M.D. La. July 31, 2012) (citations omitted).\\n 26 Henderson, 2012 WL 3109482, at *4.\\n 27 Jenkins, 774 So. 2d at 103; Henderson, 2012 WL 3109482 at *4 (citing LA. CIV. CODE\\n\\nart. 197 cmt. C).\\n 9\\n\\f Case: 18-30323 Document: 00515082072 Page: 10 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\n Again to Giroir, the Louisiana Supreme Court found that the defendant\\nhospital “received actual notice of the existence of Mrs. Giroir’s children prior\\nto her death” on the basis of the patient’s mention of children and a nurse’s\\nmeeting with her daughter:\\n\\n In a psychiatric consultation report dated October 15,\\n 1979, Dr. Ronald M. Bennett, Medical Director of the\\n Terrebonne Mental Health Center, informed [the\\n hospital’s] Clinical Social Worker, that Mrs. Giroir\\n expressed anxiety about whether her grandchildren\\n were being fed well similar to the anxiety she\\n experienced when her son was in Viet Nam. [The\\n hospital’s] registered nurse, testified that she took\\n Mrs. Giroir to Ochsner’s Hospital for a CAT scan on\\n March 13, 1980, and Mrs. Giroir’s daughter\\n accompanied them. General references to visits or\\n communications with Mrs. Giroir’s “family” and\\n “family members” appear in the [hospital] nursing\\n notes and records made during her illness. 28\\n\\nThe decedent in Giroir was the plaintiffs’ putative mother, and the plaintiffs\\nwere apparently born in wedlock. But the Giroir court did not require proof or\\ncorroboration of these facts to support the hospital’s knowledge of the children\\nfor purposes of its relation-back analysis. Mention of children in defendant’s\\nrecords was sufficient to satisfy the third criterion of Giroir’s relation-back test.\\nWe hold that, like the hospital in Giroir, the Department and the warden had\\nknowledge of Cotton’s children.\\n Lastly, we consider prejudice. Nobre and Guidry’s amendment came\\nsixteen days after expiration of the limitations period, somewhat later than the\\nthree-day delay in Giroir. 29 But the defendants present no indication that\\nallowing the amendment to relate back would prejudice their capacity to\\n\\n\\n\\n 28 Giroir, 475 So. 2d at 1042.\\n 29 Id. at 1045.\\n 10\\n\\f Case: 18-30323 Document: 00515082072 Page: 11 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\ndefend the suit, for example, that they would be deprived of relevant proof. 30\\n“[N]o essential protective purpose of the prescriptive statute is violated by\\npermitting relation back of the post prescription amendment based on the\\nsame factual situation pleaded in the original timely petition.” 31\\n Nobre and Guidry’s amendment satisfies all four Giroir factors. It would\\nbe allowed to relate back under Louisiana law, and is also allowed to relate\\nback under Rule 15(c)(1).\\n III.\\n We REVERSE the district court’s dismissal of Nobre and Guidry’s\\nwrongful death and Section 1983 claims as time barred and remand for further\\nproceedings.\\n\\n\\n\\n\\n 30 Id.\\n 31 Id.\\n 11\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4426804/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"HO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HIGGINBOTHAM\": \", Circuit\", \"ELROD\": \", Circuit\", \"HO\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4649551/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Enriqueta Moore v. LA Dept of Pub Sfty, et\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-30323 Document: 00515082072 Page: 1 Date Filed: 08/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n August 19, 2019\n No. 18-30323\n Lyle W. Cayce\n Clerk\nAMY MCDONALD NOBRE, on behalf of K.M.C.; CHASTITY GUIDRY, on\nbehalf of L.G.,\n\n Plaintiffs - Appellants\n\nv.\n\nLOUISIANA DEPARTMENT OF PUBLIC SAFETY; JERRY GOODWIN,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Louisiana\n\n\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\n The mother of a Louisiana inmate filed suit against state prison officials\nalleging Eighth Amendment violations and state-law wrongful death and\nsurvival claims arising out of her son’s death. A year later, she learned that\nher son had two children. Under Louisiana law, these children were the proper\nparties to bring the action, and so she substituted their natural tutors, Amy\nNobre and Chastity Guidry, as plaintiffs. But the substitution occurred after\nexpiration of the statutory limitations period. We must determine whether the\nsubstitution relates back to the date of the initial complaint. We hold that it\n\f Case: 18-30323 Document: 00515082072 Page: 2 Date Filed: 08/19/2019\n\n\n\n No. 18-30323\ndoes, REVERSE the district court’s dismissal of Nobre and Guidry’s wrongful\ndeath and 42 U.S.C. § 1983 claims, and remand for further proceedings.\n I.\n According to the pleadings, inmates arriving at the Louisiana\nDepartment of Corrections’ David Wade Correctional Center were routinely\nissued two combination locks. In the first two months of 2016, the Center\nexperienced two incidents in which an inmate attacked another using a lock as\na weapon. The Department nonetheless allowed inmates to retain locks. On\nFebruary 11, 2016, while inmate Kenneth Cotton was sleeping in his bed,\nanother inmate, Anthony Tellis, beat Cotton, striking his head with a lock and\nfracturing his skull. Prison staff transported Cotton to a hospital, where he\nunderwent brain surgery, but died from his injuries on February 20, 2016.\n On September 14, 2016, Cotton’s mother, Enriqueta Moore, filed a\npetition for damages in Louisiana’s Second Judicial District Court for the\nParish of Claiborne, naming the attacker Tellis, the Department of\nCorrections, the David Wade Center’s warden, and the Department’s insurers\nas defendants. Moore alleged that the defendants failed to protect Cotton from\nbodily harm, allowed inmates to possess combination locks that defendants\nknew would be used as weapons, failed adequately to train staff to supervise\nprisoners, failed to provide timely medical attention to Cotton, caused Cotton\nphysical harm, and otherwise committed acts of negligence. Moore also alleged\nthat the Department, warden, and their agents inflicted extreme emotional\ndistress upon her, deceiving her as to Cotton’s health status following the\nattack, and preventing her from seeing or speaking with her son between the\nattack and his death. Moore sought damages under Louisiana’s wrongful death\nand survival action statutes, and Section 1983. As Cotton’s mother, Moore\nalleged she was the proper party to bring the action.\n\n\n 2\n\f Case: 18-30323 Document: 00515082072 Page: 3 Date Filed: 08/19/2019\n\n\n\n No. 18-30323\n On October 20, 2016, the Department and the warden filed a Notice of\nRemoval in the United States District Court for the Western District of\nLouisiana. They stated that Moore’s suit “assert[s] federal claims under 42\nU.S.C. § 1983,” and that the district court “ha[d] jurisdiction of this cause of\naction under 28 U.S.C. § 1331, federal question jurisdiction.”\n On March 8, 2017, Moore moved for leave to file an amended complaint.\nSince filing her original complaint, Moore had learned that Cotton had two\nminor children. Under Louisiana law, these children were the proper parties\nto bring the action, and so Moore substituted the children’s natural tutors—\ntheir mothers Amy Nobre and Chastity Guidry—as plaintiffs. The amended\ncomplaint otherwise “reiterate[d] all allegations, theories of recovery and\nremedies which were listed and set forth in the allegations and prayer of the\noriginal Complaint.” The district court granted Moore’s motion for leave to\namend.\n The Department and warden moved to dismiss Nobre and Guidry’s\naction as untimely. Pointing out that the district court looks to state law for\nthe limitations period in Section 1983 suits, the defendants argued that the\nrelevant limitations period under Louisiana Civil Code Article 3492 was one\nyear running from Cotton’s death. Although Moore’s original complaint was\nfiled during the limitations period, Moore was not the proper party to bring the\naction. The amended complaint substituted the correct plaintiffs, but was filed\nsixteen days after the limitations period had expired.\n Nobre and Guidry responded that the amended complaint related back\nto the filing of the original complaint. While Moore only learned of Cotton’s\nchildren in March 2017, Nobre and Guidry argued the defendants knew of the\nchildren earlier. The plaintiffs attached for the first time a “Master Record\nInquiry,” a document prepared by the David Wade Correctional Center in\nwhich Cotton was described as the father of two children.\n 3\n\f Case: 18-30323 Document: 00515082072 Page: 4 Date Filed: 08/19/2019\n\n\n\n No. 18-30323\n Refusing to consider evidence beyond the pleadings, the district court\ngranted the defendants’ motion to dismiss. “Out of an abundance of caution,”\nthe district court analyzed the relation-back issue under both Louisiana law\nand Rule 15(c). It held that, under both, relation back was not permitted\nbecause the pleadings did not establish that the defendants knew of Cotton’s\nchildren. Nobre and Guidry appeal the dismissal of their wrongful death claim\nand associated Section 1983 claim for wrongful death damages. 1\n II.\n A.\n We have jurisdiction to hear this appeal. The well-pleaded complaint\npresents a federal question. 2 It alleges that Cotton was an inmate in state\ncustody, that state officials failed to protect him and failed to provide him with\nadequate medical care, and that he died as a result. These facts support\ncolorable claims under Section 1983 to redress violations of Cotton’s rights\nunder the Eighth and Fourteenth Amendments 3 to be free from officials’\ndeliberate indifference to substantial risks of serious harm, including via the\nprovision of adequate medical care, 4 and thus a federal question. The appeal\nchallenges a final judgment of the district court. 5 We review the district court’s\ngrant of a motion to dismiss de novo. 6 In reviewing such a decision, we accept\n\n\n\n 1 Appellants’ counsel stated during oral argument that appellants have waived their\nsurvival related claims.\n 2 The amended complaint incorporates by reference Moore’s original complaint.\n 3 If Cotton was a pretrial detainee—unlikely, given that he was incarcerated in the\n\nCenter since 2006—his claims would arise only under the Fourteenth Amendment. Hare v.\nCity of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc) (“The constitutional rights of a\npretrial detainee . . . flow from both the procedural and substantive due process guarantees\nof the Fourteenth Amendment.”); id. at 643 (holding that a pretrial detainee may challenge\n“episodic acts or omissions” of individual officials where these officials acted with deliberate\nindifference).\n 4 Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 754–55 (5th Cir. 2001).\n 5 28 U.S.C. § 1291.\n 6 Hines v. Alldredge, 783 F.3d 197, 200–01 (5th Cir. 2015).\n\n 4\n\f Case: 18-30323 Document: 00515082072 Page: 5 Date Filed: 08/19/2019\n\n\n\n No. 18-30323\nall well-pleaded facts as true and view those facts in the light most favorable\nto the plaintiff. 7\n B.\n As Section 1983 does not provide a relevant limitations period, we look\nto the law of the forum state. 8 Here, the parties agree that in analogous\ndelictual actions under the Louisiana Civil Code, plaintiffs must file within one\nyear of the decedent’s death. 9\n Cotton died on February 20, 2016. Moore’s original complaint was filed\non September 14, 2016, within the relevant limitation periods; Nobre and\nGuidry’s amended complaint was filed on March 9, 2017, after that period had\nexpired. To determine whether the amended complaint relates back to Moore’s\noriginal complaint, the court applies Federal Rule of Civil Procedure 15(c)(1). 10\nThis Rule provides:\n An amendment to a pleading relates back to the date of the original\n pleading when:\n (A) the law that provides the applicable statute of limitations\n allows relation back;\n (B) the amendment asserts a claim or defense that arose out of\n the conduct, transaction, or occurrence set out—or\n attempted to be set out—in the original pleading; or\n (C) the amendment changes the party or the naming of the\n party against whom a claim is asserted, if Rule 15(c)(1)(B) is\n satisfied and if, within the period provided by Rule 4(m) for\n serving the summons and complaint, the party to be brought\n in by amendment:\n (i) received such notice of the action that it will not be\n prejudiced in defending on the merits; and\n\n\n 7 Id. at 201.\n 8 Braden v. Texas A & M Univ. Sys., 636 F.2d 90, 92 (5th Cir. 1981).\n 9 LA. CIV. CODE art. 2315.2.\n 10 See Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010) (applying\n\nstate-law statute of limitations and Rule 15 for relation back in a Section 1983 suit).\n 5\n\f Case: 18-30323 Document: 00515082072 Page: 6 Date Filed: 08/19/2019\n\n\n\n No. 18-30323\n (ii) knew or should have known that the action would have\n been brought against it, but for a mistake concerning the\n proper party’s identity. 11\nRule 15(c) refers only to amendments changing defendants, but the Advisory\nCommittees’ Notes to the Rule state that,\n [R]elation back of amendments changing plaintiffs is\n not expressly treated in revised Rule 15(c) since the\n problem is generally easier. Again the chief\n consideration of policy is that of the statute of\n limitations, and the attitude taken in\n revised Rule 15(c) toward change of defendants\n extends by analogy to amendments changing\n plaintiffs. 12\n\nThe Louisiana Supreme Court describes the policy of the Louisiana statute of\nlimitations as “afford[ing] a defendant economic and psychological security if\nno claim is made timely, and . . . protect[ing] him from stale claims and from\nthe loss of non-preservation of relevant proof.” 13\n Applying Rule 15(c)(1)(A), we begin by asking whether “the law that\nprovides the applicable statute of limitations”—Louisiana law—allows relation\nback. 14 Louisiana’s relation-back doctrine as applied to the substitution of\nplaintiffs is governed by the test set out by the Louisiana Supreme Court in\nGiroir v. South Louisiana Medical Center. In that case, the husband of a\nwoman who died during medical treatment sued the hospital under Louisiana’s\nwrongful death and survival statutes. 15 After the limitations period expired,\nthe plaintiffs amended the complaint to add the decedent’s children as\nplaintiffs on both claims. 16 The hospital had actual knowledge of the existence\n\n\n 11 FED. R. CIV. P. 15(c)(1).\n 12 FED. R. CIV. P. 15 (1966 Amendment Notes).\n 13 Giroir v. S. La. Med. Ctr., 475 So. 2d 1040, 1045 (La. 1985).\n 14 FED. R. CIV. P. 15(c)(1)(A).\n 15 Giroir, 475 So. 2d at 1041–42.\n 16 Id.\n\n 6\n\f Case: 18-30323 Document: 00515082072 Page: 7 Date Filed: 08/19/2019\n\n\n\n No. 18-30323\nof the children. 17 The Louisiana Supreme Court held that the amended claims\nrelated back because they met four criteria: (1) the amended claims arose out\nof the same conduct, transaction, or occurrence set forth in the original\npetition—namely, the decedent’s death; (2) the defendant either knew or\nshould have known of the existence and involvement of the new plaintiffs—the\nhospital had actual notice of the children’s existence; (3) the new and the old\nplaintiffs were sufficiently related so that the added or substituted parties\nwere not wholly new or unrelated—addition of the children “d[id] not change\nthe basic underlying claim”; and (4) the defendant was not prejudiced in\npreparing and conducting its defense. 18\n Here, as in Giroir, the amended claims arise out of the same conduct and\noccurrence set forth in the original complaint, namely the prison’s alleged role\nin Cotton’s death. In fact, the amended complaint differs from Moore’s original\npleading only with respect to who is bringing the claims. Formally, the\nunderlying harms suffered by Cotton’s children are independent from those\nsuffered by Moore—this was true also in Giroir. But Cotton’s children and\nCotton’s mother are closely related, and the substitution of the decedent’s\nfamily members as plaintiffs leaves the basic underlying facts and claim\nunchanged. 19\n Defendants argue that, unlike the defendant hospital in Giroir, they\nlacked knowledge of Cotton’s children. The district court accepted this\nargument, confining its analysis to the pleadings, which alleged that Cotton\nwas the father of the two children but made no mention of the Department’s or\nthe warden’s knowledge of Cotton’s children—an allegation not necessary to\n\n\n 17 Id. at 1045.\n 18 Id. at 1044–45.\n 19 See id. at 1045 (“Clearly, the children are not wholly new or unrelated to their\n\nfather with respect to actions based on the death of their mother, and the addition of them\nas plaintiffs does not change the basic underlying claim.”).\n 7\n\f Case: 18-30323 Document: 00515082072 Page: 8 Date Filed: 08/19/2019\n\n\n\n No. 18-30323\nstate a claim, but relevant to the defense of limitations. This was in error. A\nplaintiff is not required to anticipate or overcome affirmative defenses, such as\nexpiration of the statute of limitations, in the complaint. 20 When the\ndefendants raised the affirmative defense of expiration of the limitations\nperiod in their motion to dismiss, the court was not prohibited from considering\nsources beyond the pleadings to inform the relation-back analysis. 21\n It was also error for the district court to hold that the Master Record\nInquiry’s meaning was subject to reasonable dispute. That document’s\nmeaning is not equivocal. It states of Cotton, “Children: 02.” The document\nunambiguously indicates that the Department—which produced and\nmaintained this document—knew of Cotton’s two children. According to the\ndistrict court, while the Master Record Inquiry records Cotton as having two\nchildren, it provides “no proof that these children are filiated to Cotton.” But\nthe requirement of filiation, that is, a judicial determination of paternity, 22 was\nmisplaced. Under Louisiana law, “all children have the right to bring an action\nfor wrongful death” of their parent. 23 However, children born out of wedlock\n\n\n 20 Gomez v. Toledo, 446 U.S. 635, 640 (1980) (finding “no basis for imposing on the\nplaintiff an obligation to anticipate” an affirmative defense and to address it in the\ncomplaint); see also United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (“[C]omplaints\ndo not have to anticipate affirmative defenses to survive a motion to dismiss.”); Braden v.\nWal-Mart Stores, Inc., 588 F.3d 585, 601 n.10 (8th Cir. 2009) (“[A] plaintiff need not plead\nfacts responsive to an affirmative defense before it is raised.”).\n 21 Woods Expl. & Producing Co. v. Aluminum Co. of Am., 438 F.2d 1286, 1300 (5th\n\nCir. 1971) (holding that an amendment related back where “[t]he compendious record in this\ncase justifies our conclusion that no one was litigating in darkness”); see also U.S. ex rel.\nBledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 516–18 (6th Cir. 2007) (holding that extrinsic\nevidence can be considered in determining whether a defendant was on notice of the\nplaintiff's claims for the purpose of Rule 15(c)(2)); 6A CHARLES ALAN WRIGHT ET AL., FED.\nPRAC. & PROC. CIV. § 1497 (3d ed.) (Apr. 2019 update) (describing decisions that have held “it\nis sufficient if the opposing party was made aware of the matters to be raised by the\namendment from sources other than the pleadings,” and commenting that “[t]his position\nseems sound since it is unwise to place undue emphasis on the particular way in which notice\nis received”).\n 22 Filiation, BLACK’S LAW DICTIONARY (11th ed. 2019).\n 23 Jenkins v. Mangano Corp., 774 So. 2d 101, 103 (La. 2000).\n\n 8\n\f Case: 18-30323 Document: 00515082072 Page: 9 Date Filed: 08/19/2019\n\n\n\n No. 18-30323\nface an additional proof in their claim. An individual born out of wedlock is\ndeemed the child of the parent only where the individual’s “filiation to the\nparent has been determined in the manner provided by law,” 24 namely by “an\naction to prove paternity” under article 197 of the Code. 25 Therefore, where an\nillegitimate child of the decedent brings a wrongful death claim “[a] filiation\naction inherently accompanies [the] illegitimate child’s wrongful death . . .\naction[,] [e]ven if an illegitimate child plaintiff does not specifically plead a\nfiliation action.” 26 Filiation can be established by the father’s formal\nacknowledgement—being named on the child’s birth certificate—or by clear\nand convincing evidence of informal acknowledgment—for example, writings,\nthe father’s “living in concubinage with the mother in his home at the time of\nthe child’s conception,” sharing a common surname, or the father’s\nrepresentations to his community. 27 Here, the Master Record Inquiry indicates\nthat Cotton’s marital status was “single,” and that, at least to prison officials,\nhe acknowledged his paternity relative to two children, both presumably born\nout of wedlock. If this is accurate, proof of filiation will be part of Nobre and\nGuidry’s burden in this case. But it is not a prerequisite to finding that the\ndefendants knew Cotton had children for purposes of the relation-back notice\nanalysis.\n\n\n\n\n 24 LA. CIV. CODE art. 3506(8).\n 25 Id. art. 197. “A biological relationship between the tort victim and the plaintiff child\nis a ‘critical element’ of a claim arising under Louisiana Civil Code article 2315. A man is\npresumed to be a child’s father when the child is born during his marriage to the mother or\n‘within three hundred days from the date of the termination of the marriage.’ If the child’s\nfiliation is not presumed, the child can initiate an action to establish paternity under\nLouisiana Civil Code article 197 to prove paternity in a lawful manner.” Henderson v. Turner,\n2012 WL 3109482, at *3 (M.D. La. July 31, 2012) (citations omitted).\n 26 Henderson, 2012 WL 3109482, at *4.\n 27 Jenkins, 774 So. 2d at 103; Henderson, 2012 WL 3109482 at *4 (citing LA. CIV. CODE\n\nart. 197 cmt. C).\n 9\n\f Case: 18-30323 Document: 00515082072 Page: 10 Date Filed: 08/19/2019\n\n\n\n No. 18-30323\n Again to Giroir, the Louisiana Supreme Court found that the defendant\nhospital “received actual notice of the existence of Mrs. Giroir’s children prior\nto her death” on the basis of the patient’s mention of children and a nurse’s\nmeeting with her daughter:\n\n In a psychiatric consultation report dated October 15,\n 1979, Dr. Ronald M. Bennett, Medical Director of the\n Terrebonne Mental Health Center, informed [the\n hospital’s] Clinical Social Worker, that Mrs. Giroir\n expressed anxiety about whether her grandchildren\n were being fed well similar to the anxiety she\n experienced when her son was in Viet Nam. [The\n hospital’s] registered nurse, testified that she took\n Mrs. Giroir to Ochsner’s Hospital for a CAT scan on\n March 13, 1980, and Mrs. Giroir’s daughter\n accompanied them. General references to visits or\n communications with Mrs. Giroir’s “family” and\n “family members” appear in the [hospital] nursing\n notes and records made during her illness. 28\n\nThe decedent in Giroir was the plaintiffs’ putative mother, and the plaintiffs\nwere apparently born in wedlock. But the Giroir court did not require proof or\ncorroboration of these facts to support the hospital’s knowledge of the children\nfor purposes of its relation-back analysis. Mention of children in defendant’s\nrecords was sufficient to satisfy the third criterion of Giroir’s relation-back test.\nWe hold that, like the hospital in Giroir, the Department and the warden had\nknowledge of Cotton’s children.\n Lastly, we consider prejudice. Nobre and Guidry’s amendment came\nsixteen days after expiration of the limitations period, somewhat later than the\nthree-day delay in Giroir. 29 But the defendants present no indication that\nallowing the amendment to relate back would prejudice their capacity to\n\n\n\n 28 Giroir, 475 So. 2d at 1042.\n 29 Id. at 1045.\n 10\n\f Case: 18-30323 Document: 00515082072 Page: 11 Date Filed: 08/19/2019\n\n\n\n No. 18-30323\ndefend the suit, for example, that they would be deprived of relevant proof. 30\n“[N]o essential protective purpose of the prescriptive statute is violated by\npermitting relation back of the post prescription amendment based on the\nsame factual situation pleaded in the original timely petition.” 31\n Nobre and Guidry’s amendment satisfies all four Giroir factors. It would\nbe allowed to relate back under Louisiana law, and is also allowed to relate\nback under Rule 15(c)(1).\n III.\n We REVERSE the district court’s dismissal of Nobre and Guidry’s\nwrongful death and Section 1983 claims as time barred and remand for further\nproceedings.\n\n\n\n\n 30 Id.\n 31 Id.\n 11\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Enriqueta Moore v. LA Dept of Pub Sfty, et\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-30323 Document: 00515082072 Page: 1 Date Filed: 08/19/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 19, 2019\\n No. 18-30323\\n Lyle W. Cayce\\n Clerk\\nAMY MCDONALD NOBRE, on behalf of K.M.C.; CHASTITY GUIDRY, on\\nbehalf of L.G.,\\n\\n Plaintiffs - Appellants\\n\\nv.\\n\\nLOUISIANA DEPARTMENT OF PUBLIC SAFETY; JERRY GOODWIN,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Louisiana\\n\\n\\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\\nPATRICK E. HIGGINBOTHAM, Circuit Judge:\\n The mother of a Louisiana inmate filed suit against state prison officials\\nalleging Eighth Amendment violations and state-law wrongful death and\\nsurvival claims arising out of her son’s death. A year later, she learned that\\nher son had two children. Under Louisiana law, these children were the proper\\nparties to bring the action, and so she substituted their natural tutors, Amy\\nNobre and Chastity Guidry, as plaintiffs. But the substitution occurred after\\nexpiration of the statutory limitations period. We must determine whether the\\nsubstitution relates back to the date of the initial complaint. We hold that it\\n\\f Case: 18-30323 Document: 00515082072 Page: 2 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\ndoes, REVERSE the district court’s dismissal of Nobre and Guidry’s wrongful\\ndeath and 42 U.S.C. § 1983 claims, and remand for further proceedings.\\n I.\\n According to the pleadings, inmates arriving at the Louisiana\\nDepartment of Corrections’ David Wade Correctional Center were routinely\\nissued two combination locks. In the first two months of 2016, the Center\\nexperienced two incidents in which an inmate attacked another using a lock as\\na weapon. The Department nonetheless allowed inmates to retain locks. On\\nFebruary 11, 2016, while inmate Kenneth Cotton was sleeping in his bed,\\nanother inmate, Anthony Tellis, beat Cotton, striking his head with a lock and\\nfracturing his skull. Prison staff transported Cotton to a hospital, where he\\nunderwent brain surgery, but died from his injuries on February 20, 2016.\\n On September 14, 2016, Cotton’s mother, Enriqueta Moore, filed a\\npetition for damages in Louisiana’s Second Judicial District Court for the\\nParish of Claiborne, naming the attacker Tellis, the Department of\\nCorrections, the David Wade Center’s warden, and the Department’s insurers\\nas defendants. Moore alleged that the defendants failed to protect Cotton from\\nbodily harm, allowed inmates to possess combination locks that defendants\\nknew would be used as weapons, failed adequately to train staff to supervise\\nprisoners, failed to provide timely medical attention to Cotton, caused Cotton\\nphysical harm, and otherwise committed acts of negligence. Moore also alleged\\nthat the Department, warden, and their agents inflicted extreme emotional\\ndistress upon her, deceiving her as to Cotton’s health status following the\\nattack, and preventing her from seeing or speaking with her son between the\\nattack and his death. Moore sought damages under Louisiana’s wrongful death\\nand survival action statutes, and Section 1983. As Cotton’s mother, Moore\\nalleged she was the proper party to bring the action.\\n\\n\\n 2\\n\\f Case: 18-30323 Document: 00515082072 Page: 3 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\n On October 20, 2016, the Department and the warden filed a Notice of\\nRemoval in the United States District Court for the Western District of\\nLouisiana. They stated that Moore’s suit “assert[s] federal claims under 42\\nU.S.C. § 1983,” and that the district court “ha[d] jurisdiction of this cause of\\naction under 28 U.S.C. § 1331, federal question jurisdiction.”\\n On March 8, 2017, Moore moved for leave to file an amended complaint.\\nSince filing her original complaint, Moore had learned that Cotton had two\\nminor children. Under Louisiana law, these children were the proper parties\\nto bring the action, and so Moore substituted the children’s natural tutors—\\ntheir mothers Amy Nobre and Chastity Guidry—as plaintiffs. The amended\\ncomplaint otherwise “reiterate[d] all allegations, theories of recovery and\\nremedies which were listed and set forth in the allegations and prayer of the\\noriginal Complaint.” The district court granted Moore’s motion for leave to\\namend.\\n The Department and warden moved to dismiss Nobre and Guidry’s\\naction as untimely. Pointing out that the district court looks to state law for\\nthe limitations period in Section 1983 suits, the defendants argued that the\\nrelevant limitations period under Louisiana Civil Code Article 3492 was one\\nyear running from Cotton’s death. Although Moore’s original complaint was\\nfiled during the limitations period, Moore was not the proper party to bring the\\naction. The amended complaint substituted the correct plaintiffs, but was filed\\nsixteen days after the limitations period had expired.\\n Nobre and Guidry responded that the amended complaint related back\\nto the filing of the original complaint. While Moore only learned of Cotton’s\\nchildren in March 2017, Nobre and Guidry argued the defendants knew of the\\nchildren earlier. The plaintiffs attached for the first time a “Master Record\\nInquiry,” a document prepared by the David Wade Correctional Center in\\nwhich Cotton was described as the father of two children.\\n 3\\n\\f Case: 18-30323 Document: 00515082072 Page: 4 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\n Refusing to consider evidence beyond the pleadings, the district court\\ngranted the defendants’ motion to dismiss. “Out of an abundance of caution,”\\nthe district court analyzed the relation-back issue under both Louisiana law\\nand Rule 15(c). It held that, under both, relation back was not permitted\\nbecause the pleadings did not establish that the defendants knew of Cotton’s\\nchildren. Nobre and Guidry appeal the dismissal of their wrongful death claim\\nand associated Section 1983 claim for wrongful death damages. 1\\n II.\\n A.\\n We have jurisdiction to hear this appeal. The well-pleaded complaint\\npresents a federal question. 2 It alleges that Cotton was an inmate in state\\ncustody, that state officials failed to protect him and failed to provide him with\\nadequate medical care, and that he died as a result. These facts support\\ncolorable claims under Section 1983 to redress violations of Cotton’s rights\\nunder the Eighth and Fourteenth Amendments 3 to be free from officials’\\ndeliberate indifference to substantial risks of serious harm, including via the\\nprovision of adequate medical care, 4 and thus a federal question. The appeal\\nchallenges a final judgment of the district court. 5 We review the district court’s\\ngrant of a motion to dismiss de novo. 6 In reviewing such a decision, we accept\\n\\n\\n\\n 1 Appellants’ counsel stated during oral argument that appellants have waived their\\nsurvival related claims.\\n 2 The amended complaint incorporates by reference Moore’s original complaint.\\n 3 If Cotton was a pretrial detainee—unlikely, given that he was incarcerated in the\\n\\nCenter since 2006—his claims would arise only under the Fourteenth Amendment. Hare v.\\nCity of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (en banc) (“The constitutional rights of a\\npretrial detainee . . . flow from both the procedural and substantive due process guarantees\\nof the Fourteenth Amendment.”); id. at 643 (holding that a pretrial detainee may challenge\\n“episodic acts or omissions” of individual officials where these officials acted with deliberate\\nindifference).\\n 4 Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 754–55 (5th Cir. 2001).\\n 5 28 U.S.C. § 1291.\\n 6 Hines v. Alldredge, 783 F.3d 197, 200–01 (5th Cir. 2015).\\n\\n 4\\n\\f Case: 18-30323 Document: 00515082072 Page: 5 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\nall well-pleaded facts as true and view those facts in the light most favorable\\nto the plaintiff. 7\\n B.\\n As Section 1983 does not provide a relevant limitations period, we look\\nto the law of the forum state. 8 Here, the parties agree that in analogous\\ndelictual actions under the Louisiana Civil Code, plaintiffs must file within one\\nyear of the decedent’s death. 9\\n Cotton died on February 20, 2016. Moore’s original complaint was filed\\non September 14, 2016, within the relevant limitation periods; Nobre and\\nGuidry’s amended complaint was filed on March 9, 2017, after that period had\\nexpired. To determine whether the amended complaint relates back to Moore’s\\noriginal complaint, the court applies Federal Rule of Civil Procedure 15(c)(1). 10\\nThis Rule provides:\\n An amendment to a pleading relates back to the date of the original\\n pleading when:\\n (A) the law that provides the applicable statute of limitations\\n allows relation back;\\n (B) the amendment asserts a claim or defense that arose out of\\n the conduct, transaction, or occurrence set out—or\\n attempted to be set out—in the original pleading; or\\n (C) the amendment changes the party or the naming of the\\n party against whom a claim is asserted, if Rule 15(c)(1)(B) is\\n satisfied and if, within the period provided by Rule 4(m) for\\n serving the summons and complaint, the party to be brought\\n in by amendment:\\n (i) received such notice of the action that it will not be\\n prejudiced in defending on the merits; and\\n\\n\\n 7 Id. at 201.\\n 8 Braden v. Texas A & M Univ. Sys., 636 F.2d 90, 92 (5th Cir. 1981).\\n 9 LA. CIV. CODE art. 2315.2.\\n 10 See Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010) (applying\\n\\nstate-law statute of limitations and Rule 15 for relation back in a Section 1983 suit).\\n 5\\n\\f Case: 18-30323 Document: 00515082072 Page: 6 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\n (ii) knew or should have known that the action would have\\n been brought against it, but for a mistake concerning the\\n proper party’s identity. 11\\nRule 15(c) refers only to amendments changing defendants, but the Advisory\\nCommittees’ Notes to the Rule state that,\\n [R]elation back of amendments changing plaintiffs is\\n not expressly treated in revised Rule 15(c) since the\\n problem is generally easier. Again the chief\\n consideration of policy is that of the statute of\\n limitations, and the attitude taken in\\n revised Rule 15(c) toward change of defendants\\n extends by analogy to amendments changing\\n plaintiffs. 12\\n\\nThe Louisiana Supreme Court describes the policy of the Louisiana statute of\\nlimitations as “afford[ing] a defendant economic and psychological security if\\nno claim is made timely, and . . . protect[ing] him from stale claims and from\\nthe loss of non-preservation of relevant proof.” 13\\n Applying Rule 15(c)(1)(A), we begin by asking whether “the law that\\nprovides the applicable statute of limitations”—Louisiana law—allows relation\\nback. 14 Louisiana’s relation-back doctrine as applied to the substitution of\\nplaintiffs is governed by the test set out by the Louisiana Supreme Court in\\nGiroir v. South Louisiana Medical Center. In that case, the husband of a\\nwoman who died during medical treatment sued the hospital under Louisiana’s\\nwrongful death and survival statutes. 15 After the limitations period expired,\\nthe plaintiffs amended the complaint to add the decedent’s children as\\nplaintiffs on both claims. 16 The hospital had actual knowledge of the existence\\n\\n\\n 11 FED. R. CIV. P. 15(c)(1).\\n 12 FED. R. CIV. P. 15 (1966 Amendment Notes).\\n 13 Giroir v. S. La. Med. Ctr., 475 So. 2d 1040, 1045 (La. 1985).\\n 14 FED. R. CIV. P. 15(c)(1)(A).\\n 15 Giroir, 475 So. 2d at 1041–42.\\n 16 Id.\\n\\n 6\\n\\f Case: 18-30323 Document: 00515082072 Page: 7 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\nof the children. 17 The Louisiana Supreme Court held that the amended claims\\nrelated back because they met four criteria: (1) the amended claims arose out\\nof the same conduct, transaction, or occurrence set forth in the original\\npetition—namely, the decedent’s death; (2) the defendant either knew or\\nshould have known of the existence and involvement of the new plaintiffs—the\\nhospital had actual notice of the children’s existence; (3) the new and the old\\nplaintiffs were sufficiently related so that the added or substituted parties\\nwere not wholly new or unrelated—addition of the children “d[id] not change\\nthe basic underlying claim”; and (4) the defendant was not prejudiced in\\npreparing and conducting its defense. 18\\n Here, as in Giroir, the amended claims arise out of the same conduct and\\noccurrence set forth in the original complaint, namely the prison’s alleged role\\nin Cotton’s death. In fact, the amended complaint differs from Moore’s original\\npleading only with respect to who is bringing the claims. Formally, the\\nunderlying harms suffered by Cotton’s children are independent from those\\nsuffered by Moore—this was true also in Giroir. But Cotton’s children and\\nCotton’s mother are closely related, and the substitution of the decedent’s\\nfamily members as plaintiffs leaves the basic underlying facts and claim\\nunchanged. 19\\n Defendants argue that, unlike the defendant hospital in Giroir, they\\nlacked knowledge of Cotton’s children. The district court accepted this\\nargument, confining its analysis to the pleadings, which alleged that Cotton\\nwas the father of the two children but made no mention of the Department’s or\\nthe warden’s knowledge of Cotton’s children—an allegation not necessary to\\n\\n\\n 17 Id. at 1045.\\n 18 Id. at 1044–45.\\n 19 See id. at 1045 (“Clearly, the children are not wholly new or unrelated to their\\n\\nfather with respect to actions based on the death of their mother, and the addition of them\\nas plaintiffs does not change the basic underlying claim.”).\\n 7\\n\\f Case: 18-30323 Document: 00515082072 Page: 8 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\nstate a claim, but relevant to the defense of limitations. This was in error. A\\nplaintiff is not required to anticipate or overcome affirmative defenses, such as\\nexpiration of the statute of limitations, in the complaint. 20 When the\\ndefendants raised the affirmative defense of expiration of the limitations\\nperiod in their motion to dismiss, the court was not prohibited from considering\\nsources beyond the pleadings to inform the relation-back analysis. 21\\n It was also error for the district court to hold that the Master Record\\nInquiry’s meaning was subject to reasonable dispute. That document’s\\nmeaning is not equivocal. It states of Cotton, “Children: 02.” The document\\nunambiguously indicates that the Department—which produced and\\nmaintained this document—knew of Cotton’s two children. According to the\\ndistrict court, while the Master Record Inquiry records Cotton as having two\\nchildren, it provides “no proof that these children are filiated to Cotton.” But\\nthe requirement of filiation, that is, a judicial determination of paternity, 22 was\\nmisplaced. Under Louisiana law, “all children have the right to bring an action\\nfor wrongful death” of their parent. 23 However, children born out of wedlock\\n\\n\\n 20 Gomez v. Toledo, 446 U.S. 635, 640 (1980) (finding “no basis for imposing on the\\nplaintiff an obligation to anticipate” an affirmative defense and to address it in the\\ncomplaint); see also United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (“[C]omplaints\\ndo not have to anticipate affirmative defenses to survive a motion to dismiss.”); Braden v.\\nWal-Mart Stores, Inc., 588 F.3d 585, 601 n.10 (8th Cir. 2009) (“[A] plaintiff need not plead\\nfacts responsive to an affirmative defense before it is raised.”).\\n 21 Woods Expl. & Producing Co. v. Aluminum Co. of Am., 438 F.2d 1286, 1300 (5th\\n\\nCir. 1971) (holding that an amendment related back where “[t]he compendious record in this\\ncase justifies our conclusion that no one was litigating in darkness”); see also U.S. ex rel.\\nBledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 516–18 (6th Cir. 2007) (holding that extrinsic\\nevidence can be considered in determining whether a defendant was on notice of the\\nplaintiff's claims for the purpose of Rule 15(c)(2)); 6A CHARLES ALAN WRIGHT ET AL., FED.\\nPRAC. & PROC. CIV. § 1497 (3d ed.) (Apr. 2019 update) (describing decisions that have held “it\\nis sufficient if the opposing party was made aware of the matters to be raised by the\\namendment from sources other than the pleadings,” and commenting that “[t]his position\\nseems sound since it is unwise to place undue emphasis on the particular way in which notice\\nis received”).\\n 22 Filiation, BLACK’S LAW DICTIONARY (11th ed. 2019).\\n 23 Jenkins v. Mangano Corp., 774 So. 2d 101, 103 (La. 2000).\\n\\n 8\\n\\f Case: 18-30323 Document: 00515082072 Page: 9 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\nface an additional proof in their claim. An individual born out of wedlock is\\ndeemed the child of the parent only where the individual’s “filiation to the\\nparent has been determined in the manner provided by law,” 24 namely by “an\\naction to prove paternity” under article 197 of the Code. 25 Therefore, where an\\nillegitimate child of the decedent brings a wrongful death claim “[a] filiation\\naction inherently accompanies [the] illegitimate child’s wrongful death . . .\\naction[,] [e]ven if an illegitimate child plaintiff does not specifically plead a\\nfiliation action.” 26 Filiation can be established by the father’s formal\\nacknowledgement—being named on the child’s birth certificate—or by clear\\nand convincing evidence of informal acknowledgment—for example, writings,\\nthe father’s “living in concubinage with the mother in his home at the time of\\nthe child’s conception,” sharing a common surname, or the father’s\\nrepresentations to his community. 27 Here, the Master Record Inquiry indicates\\nthat Cotton’s marital status was “single,” and that, at least to prison officials,\\nhe acknowledged his paternity relative to two children, both presumably born\\nout of wedlock. If this is accurate, proof of filiation will be part of Nobre and\\nGuidry’s burden in this case. But it is not a prerequisite to finding that the\\ndefendants knew Cotton had children for purposes of the relation-back notice\\nanalysis.\\n\\n\\n\\n\\n 24 LA. CIV. CODE art. 3506(8).\\n 25 Id. art. 197. “A biological relationship between the tort victim and the plaintiff child\\nis a ‘critical element’ of a claim arising under Louisiana Civil Code article 2315. A man is\\npresumed to be a child’s father when the child is born during his marriage to the mother or\\n‘within three hundred days from the date of the termination of the marriage.’ If the child’s\\nfiliation is not presumed, the child can initiate an action to establish paternity under\\nLouisiana Civil Code article 197 to prove paternity in a lawful manner.” Henderson v. Turner,\\n2012 WL 3109482, at *3 (M.D. La. July 31, 2012) (citations omitted).\\n 26 Henderson, 2012 WL 3109482, at *4.\\n 27 Jenkins, 774 So. 2d at 103; Henderson, 2012 WL 3109482 at *4 (citing LA. CIV. CODE\\n\\nart. 197 cmt. C).\\n 9\\n\\f Case: 18-30323 Document: 00515082072 Page: 10 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\n Again to Giroir, the Louisiana Supreme Court found that the defendant\\nhospital “received actual notice of the existence of Mrs. Giroir’s children prior\\nto her death” on the basis of the patient’s mention of children and a nurse’s\\nmeeting with her daughter:\\n\\n In a psychiatric consultation report dated October 15,\\n 1979, Dr. Ronald M. Bennett, Medical Director of the\\n Terrebonne Mental Health Center, informed [the\\n hospital’s] Clinical Social Worker, that Mrs. Giroir\\n expressed anxiety about whether her grandchildren\\n were being fed well similar to the anxiety she\\n experienced when her son was in Viet Nam. [The\\n hospital’s] registered nurse, testified that she took\\n Mrs. Giroir to Ochsner’s Hospital for a CAT scan on\\n March 13, 1980, and Mrs. Giroir’s daughter\\n accompanied them. General references to visits or\\n communications with Mrs. Giroir’s “family” and\\n “family members” appear in the [hospital] nursing\\n notes and records made during her illness. 28\\n\\nThe decedent in Giroir was the plaintiffs’ putative mother, and the plaintiffs\\nwere apparently born in wedlock. But the Giroir court did not require proof or\\ncorroboration of these facts to support the hospital’s knowledge of the children\\nfor purposes of its relation-back analysis. Mention of children in defendant’s\\nrecords was sufficient to satisfy the third criterion of Giroir’s relation-back test.\\nWe hold that, like the hospital in Giroir, the Department and the warden had\\nknowledge of Cotton’s children.\\n Lastly, we consider prejudice. Nobre and Guidry’s amendment came\\nsixteen days after expiration of the limitations period, somewhat later than the\\nthree-day delay in Giroir. 29 But the defendants present no indication that\\nallowing the amendment to relate back would prejudice their capacity to\\n\\n\\n\\n 28 Giroir, 475 So. 2d at 1042.\\n 29 Id. at 1045.\\n 10\\n\\f Case: 18-30323 Document: 00515082072 Page: 11 Date Filed: 08/19/2019\\n\\n\\n\\n No. 18-30323\\ndefend the suit, for example, that they would be deprived of relevant proof. 30\\n“[N]o essential protective purpose of the prescriptive statute is violated by\\npermitting relation back of the post prescription amendment based on the\\nsame factual situation pleaded in the original timely petition.” 31\\n Nobre and Guidry’s amendment satisfies all four Giroir factors. It would\\nbe allowed to relate back under Louisiana law, and is also allowed to relate\\nback under Rule 15(c)(1).\\n III.\\n We REVERSE the district court’s dismissal of Nobre and Guidry’s\\nwrongful death and Section 1983 claims as time barred and remand for further\\nproceedings.\\n\\n\\n\\n\\n 30 Id.\\n 31 Id.\\n 11\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3681,"cells":{"id":{"kind":"number","value":8444069,"string":"8,444,069"},"name":{"kind":"string","value":"Amy McDonald NOBRE, ON BEHALF OF K.M.C. Chastity Guidry, on behalf of L.G. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY Jerry Goodwin"},"name_abbreviation":{"kind":"string","value":"Nobre ex rel. K.M.C. v. La. Dep't of Pub. Safety"},"decision_date":{"kind":"string","value":"2019-08-19"},"docket_number":{"kind":"string","value":"No. 18-30323"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Elrod, Higginbotham\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415508/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"ELROD"},"judge2":{"kind":"string","value":"HIGGINBOTHAM"},"judge3":{"kind":"string","value":"ELROD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444069/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Amy McDonald NOBRE, ON BEHALF OF K.M.C. Chastity Guidry, on behalf of L.G. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY Jerry Goodwin\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Amy McDonald NOBRE, ON BEHALF OF K.M.C. Chastity Guidry, on behalf of L.G. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY Jerry Goodwin\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3682,"cells":{"id":{"kind":"number","value":4654098,"string":"4,654,098"},"name":{"kind":"string","value":"Randy COLE; Karen Cole; Ryan Cole, Plaintiffs-Appellees v. Carl CARSON, Defendant-Appellant Randy Cole; Karen Cole; Ryan Cole, Plaintiffs-Appellees v. Michael Hunter; Martin Cassidy, Defendants-Appellants"},"name_abbreviation":{"kind":"string","value":"Randy Cole v. Michael Hunter"},"decision_date":{"kind":"string","value":"2019-08-20"},"docket_number":{"kind":"string","value":"14-10228; 15-10045"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Stewart, Higginbotham, Jones, Smith, Dennis, Clement, Owen, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, Oldham\", \"parties\": \"\", \"opinions\": [{\"type\": \"010combined\", \"text\": \"Case: 14-10228 Document: 00515084758 Page: 1 Date Filed: 08/20/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 14-10228 August 20, 2019\\n Lyle W. Cayce\\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\\n\\n\\n Plaintiffs-Appellees\\nv.\\n\\nCARL CARSON,\\n\\n Defendant-Appellant\\n\\n ****************\\n\\n\\n No. 15-10045\\n\\n\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs-Appellees\\nv.\\n\\nMICHAEL HUNTER; MARTIN CASSIDY,\\n\\n Defendants-Appellants\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n _______________________\\n\\n\\n ON PETITION FOR REHEARING EN BANC FOLLOWING\\n REMAND FROM THE UNITED STATES SUPREME COURT\\n\\n Case: 14-10228 Document: 00515084758 Page: 2 Date Filed: 08/20/2019\\n\\n\\n\\n No. 14-10228 c/w No. 15-10045\\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\\nOLDHAM, Circuit Judges.\\n\\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\\nPRISCILLA R. OWEN, JENNIFER WALKER ELROD, LESLIE H.\\nSOUTHWICK, CATHARINA HAYNES, JAMES E. GRAVES, STEPHEN A.\\nHIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT, Circuit\\nJudges: 1\\n\\n The Supreme Court over several years has developed protection from\\ncivil liability for persons going about their tasks as government workers in the\\nform of immunity; not the absolute immunity enjoyed by prosecutors and\\njudges, but a qualified immunity. Today we again repair to issues inherent in\\nthe qualification. The doctrine protects at the earliest stage of litigation at\\nwhich the defense’s application is determinable. To that end, courts have\\ndeveloped procedures and pretrial practices, including appellate review of\\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\\nanswer under Rule 7(a) on order of the district court, particularized to address\\nthe defense of immunity in a motion to dismiss or for summary judgment.\\nWhen those processes do not yield pretrial resolution, as with competing\\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\\nfirst point at which its application is determinable. And in obeisance to\\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\\na jury—long a bastion interposed between the state and person, and assured\\nby the Founders. And it signifies that today the district judge has multiple\\n\\n\\n\\n\\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\\nparticipating as members of the original panel.\\n\\n 2\\n\\n Case: 14-10228 Document: 00515084758 Page: 3 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nways to present fully the claims and defenses to a jury to ensure the\\ngovernment worker a full draw upon his immunity defense, 2 including\\nresolution of the competing factual narratives, one of which—or a meld of\\nboth—may foreclose liability. 3\\n In this case, police officers from Sachse, Texas argue that the district\\ncourt should have sustained their defense of qualified immunity on their\\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\\nwhat happened. The officers filed dispositive pretrial motions in the district\\ncourt, asserting the defense of qualified immunity. The district court denied\\nthese motions, concluding that immunity could not be determined at this stage\\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\\n\\n\\n\\n\\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\\n 3 In any treatment of the jury’s role in stepping between state-afforded process\\n\\nand an individual defendant, it bears emphasis that the district judge can impanel a\\njury of at least six and as many as twelve members whose verdict, absent the parties’\\nagreement otherwise, must be unanimous.\\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\\n\\nHunter v. Cole, 137 S. Ct. 497 (2016).\\n\\n\\n 3\\n\\n Case: 14-10228 Document: 00515084758 Page: 4 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\\nthe denial of summary judgment as to the excessive-force claim. Because the\\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\\nlight of Mullenix.\\n We conclude that it will be for a jury, and not judges, to resolve the\\ncompeting factual narratives as detailed in the district court opinion and the\\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims based on qualified\\nimmunity; and return the case to the district court for trial and resolution of\\nissues consistent with this opinion.\\n I\\n A.\\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\\nDepartment called available units to the neighboring town of Garland, Texas.\\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\\n\\n\\n\\n\\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\\ncuriam)).\\n\\n 4\\n\\n Case: 14-10228 Document: 00515084758 Page: 5 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nreported to be walking in the neighborhood with a handgun. Officer Michael\\nHunter responded by proceeding immediately to the Garland neighborhood. In\\na statement given on the day of the incident, Hunter related that on arriving\\nin the neighborhood, he overheard a civilian stating that Ryan had given up\\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\\nkeep his handgun. Hunter searched the area, and saw two officers following\\nRyan, who was walking away from them holding his gun to his head,\\napproaching a wooded area along Highway 78. Although told by officers that\\nthings were under control, Hunter volunteered to go behind the wooded area\\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\\nalso present, join him.\\n Four years later, after this litigation had commenced, Hunter for the first\\ntime recalled that the civilian he had overheard had described an altercation\\nwith Ryan in which Ryan had threatened him. He also then for the first time\\nrecalled hearing police-radio transmissions indicating that officers were\\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\\na risk of serious harm to a great many innocent in the vicinity.” Hunter\\notherwise learned nothing “that would cause [him] to believe [Ryan] was\\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\\nand, four years after the incident, he also raised the possibility that Ryan was\\nusing suicide as a pretext to evade the police.\\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\\ninformation. On the day of the incident, Cassidy swore that he learned “this\\n\\n\\n\\n\\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\\n\\n 5\\n\\n Case: 14-10228 Document: 00515084758 Page: 6 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nsubject had shown up at [a] residence with a handgun and had just recently\\nbeen seen walking away.” But, four years later, after this litigation had\\ncommenced, like Hunter, Cassidy remembered learning more, including that\\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\\nan order to drop his weapon; and might be headed for Sachse High School “to\\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\\nHighway 78.\\n The three officers separately arrived at the side of Highway 78 at around\\nthe same time. Hunter parked his motorbike and drew his duty weapon;\\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\\nThe officers started walking along the tree line. A steep embankment rose from\\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\\nembankment to approach the tree line. Cassidy and Hunter used both the edge\\nof the embankment and the vegetation to conceal themselves as they walked.\\nHunter also removed his white motorcycle helmet in order to be less\\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\\nascending to the tree line. Hunter heard movement in the brush, and signaled\\nto his colleagues.\\n What occurred next is disputed. Viewing the summary judgment\\nevidence and drawing reasonable inferences in the light most favorable to the\\nnon-movant Coles, the district court determined that a reasonable jury could\\nfind the following: Ryan backed out from the tree line in front of Hunter and\\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\\n\\n\\n\\n\\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\\nin a light most favorable to the Coles, the district court relied on the physical and\\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\\n\\n\\n 6\\n\\n Case: 14-10228 Document: 00515084758 Page: 7 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\\nat the Officers,” 9 and “never made a threatening or provocative gesture\\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\\nnot know that.\\n Following the shooting, the three officers remained together at the scene.\\nThe Coles allege that during this time the officers conspired to insulate Cassidy\\nand Hunter from liability with a fabricated narrative in which Ryan was facing\\nHunter and pointed his weapon at the officer, at which point Cassidy and\\n\\n\\n\\n\\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\\nhave been aware of the presence of the police officers prior to the time he was shot.”\\n 8 Cole, 68 F. Supp. 3d at 644.\\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\\n\\nargument that Cole did not know of the Officers’ presence.”).\\n 10 Cole, 68 F. Supp. 3d at 645–46.\\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\\n\\nduring which they could have called out to Cole, sufficient time to make a warning\\naccording to Cole’s expert.\\n 12 Cole, 68 F. Supp. 3d at 645.\\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\\n 14 Id. at 644.\\n 15 Cole, 68 F. Supp. 3d at 644.\\n 16 Id.\\n\\n\\n 7\\n\\n Case: 14-10228 Document: 00515084758 Page: 8 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\\nDepartment arrived and took control of the scene, but did not follow the\\nstandard procedure of separating witnesses to ensure independent\\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\\npolice station together. Later that day, the officers provided statements to\\ninvestigators. Hunter stated that he had no chance to issue a command to\\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\\nstated that Ryan then turned towards Hunter and pointed his handgun at\\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\\ndefensively. 17\\n The Dallas County District Attorney presented the officers’ narrative to\\na grand jury, which no-billed the officers and charged Ryan with felony\\naggravated assault of a public servant. As a result of the charge, Ryan,\\nincapacitated in intensive care, was placed under house arrest. About a month\\nafter the indictment, investigators received a ballistics report from the crime\\nlab. The ballistics analysis, taken together with stippling observed around\\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\\n Ryan suffered permanent injuries, including cognitive impairment,\\npartial paralysis, and other serious mental and physical disabilities.\\n\\n\\n\\n\\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\\nhis line of sight.\\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\\n\\nreleased immediately around a discharging firearm.\\n\\n 8\\n\\n Case: 14-10228 Document: 00515084758 Page: 9 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The Coles brought, inter alia, four Section 1983 claims against the\\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\\nagainst the use of excessive force arising from the shooting. Second, the Coles\\nallege a violation of Ryan’s Fourteenth Amendment right against the\\nimposition of false charges arising from the fabrication of evidence. Third, they\\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\\nviolation arising from the fabrication of evidence. The officers filed a motion to\\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\\ndefenses. The district court denied the motion in a January 2014 Memorandum\\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\\nqualified immunity defenses to the excessive-force claim. With that discovery\\ncomplete, the two officers moved for summary judgment, rearguing qualified\\nimmunity. The district court denied their motion and Cassidy and Hunter\\nappealed.\\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\\ncourt affirmed the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\\n\\n\\n\\n\\n 19 The Coles filed an initial complaint in September 2012. The officers moved\\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\\nreply to the immunity defense. The district court then afforded the Coles opportunity\\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\\nThe officers then filed a second motion to dismiss.\\n\\n 9\\n\\n Case: 14-10228 Document: 00515084758 Page: 10 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nFourteenth Amendment false-charge claim, and reversed the denial as to the\\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\\nthe qualified immunity defense applicable for these claims. The officers\\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\\nSupreme Court granted certiorari, vacated the panel’s judgment, and\\nremanded the case for further consideration in light of Mullenix v. Luna, 20\\ndecided in the intervening time. 21\\n On remand from the Supreme Court, recognizing that its jurisdiction\\nwas limited to determining the materiality of factual disputes that the district\\ncourt determined were genuine, the panel once again held that the\\napplicability of qualified immunity for Cassidy and Hunter could not be\\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\\nremand order reached no further, the panel reinstated the Cole I opinion on\\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\\nrehearing en banc, which we granted. 24\\n\\n\\n\\n\\n 20 136 S. Ct. 305 (2015).\\n 21 As this court and others have acknowledged, when the Supreme Court\\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\\n\\n378, 379 (5th Cir. 2019).\\n 23 Id. at 341–42.\\n 24 Cole, 915 F.3d at 379.\\n\\n\\n\\n\\n 10\\n\\n Case: 14-10228 Document: 00515084758 Page: 11 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II\\n A.\\n We hear this case on remand from the Court for further consideration in\\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\\nimposition of false charges. 26 Second, finding qualified immunity applicable,\\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\\nqualified immunity applicable, we reverse the denial of the motion to dismiss\\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\\nviolation. 28\\n\\n\\n\\n\\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\\ndetention can violate the Fourth Amendment not only when it precedes, but also\\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\\n“Manuel does not address the availability of due process challenges after a legal\\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\\n 26 See Cole I, 802 F.3d at 766–74.\\n 27 See id. at 764–65.\\n 28 See id. at 765.\\n\\n\\n\\n\\n 11\\n\\n Case: 14-10228 Document: 00515084758 Page: 12 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The qualified immunity inquiry includes two parts. In the first we ask\\nwhether the officer’s alleged conduct has violated a federal right; in the second\\nwe ask whether the right in question was “clearly established” at the time of\\nthe alleged violation, such that the officer was on notice of the unlawfulness of\\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\\nviolation, or if the conduct did not violate law clearly established at the time. 30\\n On an appeal of a denial of summary judgment on the basis of qualified\\nimmunity, our jurisdiction is limited to examining the materiality of factual\\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\\nappeal we cannot challenge the district court’s assessments regarding the\\nsufficiency of the evidence—that is, the question whether there is enough\\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\\nlack jurisdiction to resolve the genuineness of any factual disputes” and\\n“consider only whether the district court erred in assessing the legal\\nsignificance of the conduct that the district court deemed sufficiently supported\\nfor purposes of summary judgment.” 33 Like the district court, we must view\\nthe facts and draw reasonable inferences in the light most favorable to the\\nplaintiff and ask whether the defendant would be entitled to qualified\\n\\n\\n\\n\\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\\n 30 Id.\\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\\n\\nthe determination of qualified immunity would require the resolution of a genuinely\\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\\n\\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\\n 33 Id. (internal quotations omitted).\\n\\n\\n\\n\\n 12\\n\\n Case: 14-10228 Document: 00515084758 Page: 13 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\\ncourt for failing to take the evidence and draw factual inferences in the non-\\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\\nemphasized that the requirement is no less binding “even when . . . a court\\ndecides only the clearly-established prong of the standard.” 36 Within the\\nlimited scope of our inquiry, review is de novo. 37\\n As instructed, we turn to the guidance provided by the Supreme Court\\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\\nan officer who had shot and killed a fugitive in a car chase. This court had\\ndecided that the officer violated the clearly established rule that deadly force\\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\\nsome threat of harm, but we had held the threat was not “sufficient.” The\\nSupreme Court reversed our decision. It found that the rule we articulated\\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\\nnot reasonably derive an applicable rule to govern his or her conduct in the\\nsituation. 41 Finding that we had defined the applicable rule with too much\\n\\n\\n\\n\\n 34 Lytle, 560 F.3d at 409.\\n 35 Tolan, 572 U.S. at 660.\\n 36 Id. at 657.\\n 37 Trent, 776 F.3d at 376.\\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\\n 39 Id. at 309.\\n 40 Id. at 309–10.\\n 41 Id.\\n\\n\\n\\n\\n 13\\n\\n Case: 14-10228 Document: 00515084758 Page: 14 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n“generality,” 42 the Court reversed our holding that the officer had violated\\nclearly established law. 43\\n Under Mullenix, application of clearly established law is undertaken\\nwith close attention to the relevant legal rule and the particular facts of the\\ncase. Here, based on the facts taken in the light most favorable to the non-\\nmovant Coles, and with reasonable inferences drawn in their favor, the district\\ncourt determined there were genuine factual disputes as to Ryan’s and the\\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\\npose an immediate threat to the officers” when they opened fire. 44 It held that\\n“on October 25, 2010, the date of the shooting, the law was clearly established”\\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\\nentire time at his own head and facing away from the officer, in an open\\noutdoor area, and who was unaware of the officer’s presence because no\\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\\ndetail, the officers ask us to consider a different set of facts, but we cannot do\\nso. We lack jurisdiction to reconsider the district court’s factual determinations\\non an appeal from denial of summary judgment on qualified immunity.\\n Tennessee v. Garner announced the principle that the use of deadly force\\nis permitted only to protect the life of the shooting officer or others: “Where the\\nsuspect poses no immediate threat to the officer and no threat to others, the\\nharm resulting from failing to apprehend him does not justify the use of deadly\\n\\n\\n\\n\\n 42 Id. at 311.\\n 43 Id. at 312.\\n 44 Cole, 68 F. Supp. 3d at 645.\\n 45 Id. at 643.\\n\\n\\n\\n\\n 14\\n\\n Case: 14-10228 Document: 00515084758 Page: 15 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nforce to do so.” 46 Garner also requires a warning before deadly force is used\\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\\nobvious cases, and this court has applied it in such cases, without dependence\\non the fact patterns of other cases. 48\\n The summary judgment facts, as determined by the district court, are\\nthat Ryan posed no threat to the officers or others to support firing without\\nwarning. The “Officers had the time and opportunity to give a warning and yet\\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\\nbeen facing him and pointing a gun at him.\\n This case is obvious when we accept the facts as we must. It is also\\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\\nthis stage—was unlawful. For in Baker, members of the public told Officer\\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\\nduring spring break, that “someone had entered the crowd with a pistol-\\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\\n\\n\\n\\n\\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\\n\\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\\n2012).\\n 49 Cole, 68 F. Supp. 3d at 645.\\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\\n\\n\\n\\n\\n 15\\n\\n Case: 14-10228 Document: 00515084758 Page: 16 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\\npeople directed the officer to a car in which the gunman was supposedly\\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\\n[Baker] took no threatening action . . . as the officer approached the truck,”\\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\\nparties did not dispute that Putnal had been searching for a gunman, and that\\na gun had been recovered from Baker’s seat, although they disputed whether\\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\\nIt was also undisputed that Baker was turning to face Putnal from his seat,\\nalthough medical reports indicated from “the nature of the wounds . . . that\\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\\nThe district court granted Putnal qualified immunity, crediting his account\\n\\n\\n\\n\\n 51 Id.\\n 52 Id. at 198.\\n 53 Id. at 193.\\n 54 Id.\\n 55 Id. at 198.\\n 56 Id.\\n 57 Id.\\n 58 Id.\\n 59 Id. at 193.\\n\\n\\n\\n\\n 16\\n\\n Case: 14-10228 Document: 00515084758 Page: 17 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthat he had fired in response to Baker turning and aiming the gun at him. 60\\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\\nposition of Baker’s gun, we found “simply too many factual issues to permit the\\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\\nreasons to find that [the officer’s] use of force was not excessive as a matter of\\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\\nto the nonmoving party,” we held that “[t]he number of shots and the nature\\nof the wounds raise . . . more of a question of fact than a court may dispose of\\non summary judgment.” 64\\n The Supreme Court’s more recent qualified immunity decisions do not\\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\\nresponded to a call that a woman was behaving erratically with a knife and\\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\\napproached to within “striking distance” of a bystander in the driveway. 66 One\\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\\n\\n\\n\\n\\n 60 Id. at 197.\\n 61 Id. at 198.\\n 62 Id.\\n 63 Id.\\n 64 Id. at 198–99.\\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\\n 66 Id.; id. at 1154.\\n\\n\\n\\n\\n 17\\n\\n Case: 14-10228 Document: 00515084758 Page: 18 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\\nHughes brought a Section 1983 excessive force claim against Kisela. 69\\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\\nrefusal to follow his repeated commands to drop the knife while within striking\\ndistance of the bystander—obstinance that heightened the risk of immediate\\nharm to another—the law did not clearly establish that the officer’s resort to\\ndeadly force was unlawful. 70\\n In this case, Officers Cassidy and Hunter found themselves in a search\\nfor a suicidal teenager who they knew had already encountered fellow officers\\nand walked away from them with his gun to his head, non-responsive, but\\nwithout aggressive action. The circumstances of the officers’ encounter with\\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\\nthe officers, whether and how he turned and aimed his gun, and whether\\nHunter warned Ryan to disarm himself. The district court here defined the\\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\\nviewing these disputes in a light most favorable to the Coles, concluded that a\\nreasonable jury could find that Ryan made no threatening or provocative\\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\\nthe district court concluded that a reasonable jury could find Cassidy and\\n\\n\\n\\n\\n 67 Id. at 1151.\\n 68 Id.\\n 69 Id.\\n 70 Id. at 1153.\\n\\n\\n 18\\n\\n Case: 14-10228 Document: 00515084758 Page: 19 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter opened fire upon Ryan without warning, even though it was feasible.\\nOn these facts, the officers’ conduct violates clearly established law.\\n Rather than engage on the facts as we must take them at the summary\\njudgment stage, the officers repeatedly argue from a different set of facts.\\nWhile the district court found that Ryan was initially facing away from the\\nofficers when they fired the first shot, the officers now describe his “armed turn\\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\\naimed at his own head and never pointed it at the officers, the officers now\\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\\nthen only momentarily turned back towards Ryan’s head at the moment he\\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\\npointed toward him—a story prosecutors accepted until a ballistics report\\nexposed its impossibility). And although the district court found that Ryan was\\nnot given an opportunity to disarm himself, the officers contend that he was\\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\\nargument to us as a full court, and in the teeth of those found by the district\\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\\nestablished law in 2010 put the officers’ response of firing in self-defense\\nbeyond the law.\\n The Coles and amicus Cato Institute are correct that it is beyond our\\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\\n“[I]f an excessive force claim turns on which of two conflicting stories best\\ncaptures what happened on the street,” the caselaw “will not permit summary\\n\\n\\n\\n\\n 19\\n\\n Case: 14-10228 Document: 00515084758 Page: 20 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\\nWhereas the officers will have a chance to present their factual narrative—and\\nto question the Coles’—at trial, they cannot contest the facts in the current\\nappeal. 72\", \"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART\"}, {\"type\": \"dissent\", \"author\": \"The\", \"text\": \"The dissents also take issue with the disputed facts. Judge Duncan\\nfocuses on what he terms “undisputed pre-encounter events.” But, particularly\\nin light of the officers’ evolving stories, it is disputed whether any of the events\\nrecounted were known to Hunter or Cassidy when they fired on Ryan. The\\ndissent cites to the reports and affidavits of other officers and individuals to\\ndescribe the events occurring before Hunter and Cassidy were called to the\\nscene. 73 But looking at the evidence in the light most favorable to the Coles,\\nHunter and Cassidy were not aware of the disturbance at the Coles’ house the\\nprevious night, the alleged cache of weapons left at the Reeds’ house, Ryan’s\\nalleged suicidal threat, or his threat to shoot anyone who came near him.\\n And of course, what matters is what the defendant officers knew when\\nthey shot Ryan. See, e.g., White v. Pauly, 137 S. Ct. 548, 550 (2017) (per curiam)\\n(“Because this case concerns the defense of qualified immunity . . . the Court\\n\\n\\n\\n\\n 71 Saucier v. Katz, 533 U.S. 194, 216 (2001) (Ginsburg, J. concurring). see also\\nTolan, 572 U.S. at 660; id. at 662 (Alito, J., joined by Scalia, J., concurring in the\\njudgment) (agreeing that “summary judgment should not have been granted” in that\\ncase because of the genuine issues of material fact); Lytle, 560 F.3d at 408–09.\\n 72 Cf. Tolan, 572 U.S. at 660 (“The witnesses on both sides come to this case\\n\\nwith their own perceptions, recollections, and even potential biases. It is in part for\\nthat reason that genuine disputes are generally resolved by juries in our adversarial\\nsystem. By weighing the evidence and reaching factual inferences contrary to [the\\nplaintiff’s] competent evidence, the court below neglected to adhere to the\\nfundamental principle that at the summary judgment stage, reasonable inferences\\nshould be drawn in favor of the nonmoving party.”).\\n 73 Recall that Hunter was a late-arriving officer who was not instructed by the\\n\\nSachse or Garland police departments to pursue Ryan. See supra at 4.\\n\\n 20\\n\\n Case: 14-10228 Document: 00515084758 Page: 21 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nconsiders only the facts that were knowable to the defendant officers.”);\\nKingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015) (stressing that “a court\\nmust judge the reasonableness of the force used from the perspective and with\\nthe knowledge of the defendant officer”). The dissents overlook the\\nfundamental reason most of these facts should not be part of the analysis: we\\nconsider only what the officers knew at the time of their challenged conduct.\\n“Facts an officer learns after the incident ends—whether those facts would\\nsupport granting immunity or denying it—are not relevant.” Hernandez v.\\nMesa, 137 S. Ct. 2003, 2007 (2017) (per curiam); see also Brown v. Callahan,\\n623 F.3d 249, 253 (“An official’s actions must be judged in light of the\\ncircumstances that confronted him, without the benefit of hindsight.” (citing\\nGraham v. Connor, 490 U.S. 386, 396–97 (1989))). Despite the many “red flags”\\nlisted by the dissents as known to others, only those known to Hunter and\\nCassidy are relevant to the qualified immunity analysis.\\n Judge Jones’s dissent fares no better in addressing some of the key facts\\nof the shooting itself. Contrary to its assertion, the district court found that\\nRyan was facing at a 90-degree angle away from the officers when he was first\\nshot. Cole, 68 F. Supp. 3d at 644. As for the “warning,” the district court found\\nthat a reasonable jury could conclude that Ryan “was not given an opportunity\\nto disarm himself before he was shot.” Id. Relitigating the district court’s\\nassessment of factual disputes is not our role on interlocutory review.\\n What Hunter and Cassidy knew before shooting at Ryan, whether they\\nwarned him before doing so, and what actions Ryan took before being shot are\\nall disputed. The district court must afford Cassidy and Hunter qualified\\nimmunity at the earliest point the defense’s applicability is determinable.\\nHere, we have not yet reached that point. It will be for a jury to resolve what\\n\\n\\n\\n\\n 21\\n\\n Case: 14-10228 Document: 00515084758 Page: 22 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhappened on October 25, 2010. The district court did not err in denying the\\nofficers qualified immunity at the summary judgment stage.\\n III\\n The district court determined that genuine disputes of fact regarding\\nCassidy’s and Hunter’s entitlement to qualified immunity remain. We\\nAFFIRM the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim and DISMISS Cassidy and Hunter’s appeal; AFFIRM\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-\\ncharges claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims; and return the case to\\nthe district court for trial and resolution of issues consistent with this opinion.\\n\\n\\n\\n\\n 22\\n\\n Case: 14-10228 Document: 00515084758 Page: 23 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nJENNIFER WALKER ELROD, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and EDITH BROWN CLEMENT, CATHARINA HAYNES,\\nSTEPHEN A. HIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT,\"}, {\"author\": \"Circuit Judges, concurring\", \"type\": \"concurrence\", \"text\": \"Circuit Judges, concurring:\\n\\n\\n I concur fully in the majority opinion. Despite the outcry of the\\ndissenting opinions, there is no new law being made or old law being ignored.\\nThe majority opinion takes no position on the public policy issues of the day\\nregarding policing and the mentally ill. Rather, it follows the longstanding en\\nbanc rule that “we lack jurisdiction to review the genuineness of a fact issue”\\non an interlocutory appeal of a denial of summary judgment based on qualified\\nimmunity. Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc)\\n(quoting Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016)); Kinney v. Weaver,\\n367 F.3d 337, 341, 346–47 (5th Cir. 2004) (en banc). As the able district court\\ndetermined, the facts are very much in dispute.\\n\\n\\n\\n\\n 23\\n\\n Case: 14-10228 Document: 00515084758 Page: 24 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nEDITH H. JONES, Circuit Judge, joined by SMITH, OWEN, HO, DUNCAN\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431351/\", \"author_raw\": \"Circuit Judges, concurring\"}, {\"author\": \"and OLDHAM, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"and OLDHAM, Circuit Judges, dissenting:\\n\\n\\n What “clearly established law” says that only a rogue cop would have\\nshot at this mentally disturbed teenager within 3 to 5 seconds as the teen\\nemerged from dense bushes ten to twenty feet away from Officer Hunter and,\\nwith his finger on the trigger of a loaded pistol pointed in the direction of his\\nown head, began turning in the officer’s direction? The majority state this is\\nan “obvious case” for the denial of qualified immunity: the officers could not\\nshoot without first announcing themselves to Cole or looking down the barrel\\nof his gun. What is so obvious? Contrary to the majority’s dangerously\\nunrealistic proposition, “action beats reaction” every time. Ontiveros v. City of\\nRosenberg, 564 F.3d 379, 384 (5th Cir. 2009). Neither we nor the Supreme\\nCourt has ever held that police officers confronted in close quarters with a\\nsuspect armed and ready to shoot must hope they are faster on the draw and\\nmore accurate. The increasingly risky profession of law enforcement cannot\\nput those sworn to “serve and protect” to a Hobson’s choice: place their lives on\\nthe line by heroic forbearance or risk their financial security in defense of\\nlawsuits. The Supreme Court has repeatedly stated in plain terms that the\\npurpose of qualified immunity is to prevent precisely this quandary.\\n Respectfully dissenting, we are convinced that the Supreme Court’s\\nremand from the original panel opinion denying immunity meant something;\\nthe governing Supreme Court law is foursquare in the corner of\\n\\n\\n\\n\\n 24\\n\\n Case: 14-10228 Document: 00515084758 Page: 25 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nOfficers Hunter and Cassidy; and they were entitled to receive summary\\njudgment confirming their immunity from suit, not simply from liability. 1\\n I. Background\\n A. Undisputed facts\\n The majority opinion paints a picture of the relevant facts that has\\nevolved considerably from the first and second panel opinions to this final\\nmajority version. Compare Cole v. Carson, 802 F.3d 752, 755-56, 758 (5th Cir.\\n2015), vacated sub nom. Hunter v. Cole, 137 S. Ct. 497 (Cole I), with Cole v.\\nCarson, 905 F.3d 334, 337-340 (5th Cir. 2018) (Cole II), and supra. Qualified\\nimmunity for the use of deadly force is assessed at the moment a law\\nenforcement officer confronts a suspect, Graham v. Connor, 490 U.S. 386, 397,\\n109 S. Ct. 1865, 1872 (1989), but the officer’s understanding of facts leading up\\nto the event color the question whether “a reasonable officer” could have\\nbelieved his life or the lives of others were endangered. White v. Pauly,\\n137 S. Ct. 548, 550, 552 (2017). To the majority’s picture, it is necessary to add\\nundisputed facts recited in the prior opinions and undisputed evidence from\\nplaintiffs’ experts. Hornbook summary judgment law holds that although\\ndisputed facts are viewed in the light most favorable to non-movants, the entire\\nrecord must be considered. Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769,\\n1776 (2007). Further, this court reviews de novo the materiality of the relevant\\nfacts. Foley v. Univ. of Houston, Sys., 355 F.3d 333, 337 (5th Cir. 2003).\\n\\n\\n\\n\\n 1 We do not challenge the majority’s decision to leave in place fabricated evidence\\ncharges against these two officers and Officer Carson. Only Carson, who was present at the\\nencounter but did not shoot, appealed the district court’s refusal to dismiss that claim. The\\nSupreme Court has not been clear on the constitutional basis for such a claim, so we have no\\nground to criticize the majority. Compare Manuel v. City of Joliet, 137 S. Ct. 911 (2017), with\\nMcDonough v. Smith, 139 S. Ct. 2149 (2019), (refusing to rule on the constitutional grounding\\nof such claims).\\n\\n 25\\n\\n Case: 14-10228 Document: 00515084758 Page: 26 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n First, both officers who shot at Cole were aware that he had mental\\nissues. Officer Cassidy had learned that Cole “had threatened to shoot anyone\\nwho tried to take his gun and had refused an order to drop his weapon.” Cole\\nII, 905 F.3d at 338. Officer Hunter watched Cole walk steadily down the train\\ntracks ignoring other police who were yelling at him to stop and put down his\\n9 mm semi-automatic pistol. Both officers were aware that a bulletin had been\\ndisseminated about Cole to all law enforcement in Garland and Sachse, and\\nthree nearby schools in the vicinity of Highway 78, where Cole was heading,\\nwere being protected. Cole II, 905 F.3d at 337-38.\\n Second, Cole emerged from the vegetation, unaware of the officers’\\npresence, within ten to twenty feet of Officer Hunter, and as he turned toward\\nthe officers, three to five seconds elapsed. That’s less time than it takes to read\\nthe preceding sentence. Cole initially stood at a 90 degree angle to the police\\nand then began turning counterclockwise toward them. His movement is\\nconceded by plaintiffs’ expert, supported by the ballistic evidence, and\\nrecounted in the district court opinion. Cole II, 905 F.3d at 338 (“Cole began\\nto turn counterclockwise.”). Plaintiff’s expert opines this interval was\\nsufficient for the officers to command Cole to disarm and observe his reaction.\\n Third, his loaded pistol was pointed within thirty inches toward his head,\\nCole I, 802 F.3d at 756, and Cole’s finger was on the trigger.\\n Next, the officers fired seven shots, two of which hit Cole.\\nOfficer Hunter’s first shot hit Cole in the left arm, penetrating his body from\\nthe left. Another of Hunter’s shots merely grazed Cole’s left arm as he\\ncontinued to turn and was facing Hunter. Cole II, 905 F.3d at 339. Cole’s gun,\\naccording to the plaintiffs, involuntarily discharged and hit him in the head,\\n“leaving stippling—gunpowder residue around the wound due to the gun being\\nfired from less than thirty inches away.” Cole I, 802 F.3d at 756.\\n\\n\\n 26\\n\\n Case: 14-10228 Document: 00515084758 Page: 27 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Finally, the bodycam evidence shows that some officer began to issue a\\nwarning at about the time the shooting started. Cole II, 905 F.3d at 338.\\n B. Prior panel reasoning\\n The district court denied qualified immunity to Hunter and Cassidy for\\nthe shooting 2 and refused to dismiss the allegations of falsified evidence\\nagainst Hunter, Cassidy, and Carson.\\n The original panel opinion affirmed, 3 concluding as to the excessive force\\nallegation that “if the Coles’ version of the evidence is believed, it was not\\nobjectively reasonable to use deadly force against Ryan Cole when the teenager\\nemerged on foot from the wooded area with a gun to his own head and turned\\nleft.” With regard to immunity, the panel held that by October 2010,\\n“reasonable officers were on notice that they could not lawfully use deadly force\\nto stop a fleeing person who did not pose a severe and immediate risk to the\\nofficers or others, and they had many examples of the sorts of threatening\\nactions which could justify deadly force. Turning left while unaware of an\\nofficer’s presence is not among them.” Cole I, 802 F.3d at 762 (emphasis added)\\n(footnote omitted). The panel’s principal support for its legal reasoning was\\nLuna v. Mullenix, 773 F.3d 712 (5th Cir. 2014), rev’d sub nom. Mullenix v.\\nLuna, 136 S. Ct. 305 (2015). According to the panel, “the central [disputed]\\nissue” is “whether Ryan pointed his gun at Officer Hunter.” Cole I, 802 F.3d\\n\\n\\n\\n\\n Query why Officer Cassidy, whose shots didn’t hit the victim, can be sued? This\\n 2\\n\\ncourt has held that qualified immunity must be applied individually to each defendant.\\nMeadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007). But no one raised the point here.\\n\\n The correct disposition if this court agrees there are material fact issues in dispute\\n 3\\n\\nregarding qualified immunity would be to dismiss the appeal, because our appellate\\njurisdiction exists only over questions of law. Mitchell v. Forsyth, 472 U.S. 511, 529-30,\\n105 S. Ct. 2806, 2816-17 (1985).\\n\\n 27\\n\\n Case: 14-10228 Document: 00515084758 Page: 28 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nat 762. Absent such a threatening gesture, Cole was said to present no\\nsufficient threat. Id.\\n The next panel opinion was formulated after the Supreme Court\\nreversed us in Mullenix on the grounds that “none of our [the Supreme Court’s\\nown] precedents ‘squarely governs’ the facts here. Given [the suspect’s]\\nconduct, we cannot say that only someone ‘plainly incompetent’ or who\\n‘knowingly violate[s] the law’ would have perceived a sufficient threat and\\nacted as [the officer] did.” 136 S. Ct. at 310. On this second go-round, the panel\\nconceded the deficiency of the “no sufficient threat” rule, but then concluded\\nthat, taken in the light most favorable to the plaintiffs, Cole’s conduct posed\\n“no threat” when he was shot, Cole II, 905 F.3d at 343, and the officers\\ntherefore violated a clearly established “no threat” rule. Tennessee v. Garner\\nis cited as the basis for this “bright line” rule. 4 471 U.S. 1, 105 S. Ct. 1694\\n(1985). This opinion was vacated by a vote to reconsider the case en banc.\\n C. The Current Majority Opinion\\n Pivoting yet again, the en banc majority opinion commences with a\\npaean to “the worker’s . . . right to the protection of a jury,” not even bothering\\nto cite Supreme Court authorities that explain why qualified immunity is\\nimmunity from suit, not just liability. The majority opinion omits or ignores\\nmaterial undisputed facts recited above—the knowledge of the officers, Cole’s\\nturning toward them, the significance of his finger in a loaded pistol, and the\\n\\n\\n\\n\\n 4The panel curiously described so-called clearly established law in both of its opinions\\nwith references to unpublished, non-precedential Fifth Circuit cases. The Supreme Court\\nhas expressed uncertainty over whether any circuit court cases, as opposed to its own\\ndecisions, may set out “clearly established law.” See Dist. of Columbia v. Wesby, 138 S. Ct.\\n577, 591 n. 8 (2018); Carroll v. Carman, 135 S. Ct. 348, 350 (2014); Reichle v. Howards,\\n566 U.S. 658, 665-66, 132 S. Ct. 2088, 2094 (2012). It is incredible that this court would cite\\nour avowedly non-precedential decisions for that purpose.\\n\\n 28\\n\\n Case: 14-10228 Document: 00515084758 Page: 29 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthree to five second interval—and hides behind the assertion that, relevant to\\nqualified immunity, there are “genuine factual disputes as to Ryan’s and the\\nofficers’ conduct” such that a reasonable jury could find that Cole posed no\\n“immediate threat” to the officers or others. Two paragraphs later, asserting\\nthat Cole posed “no threat . . . to support firing without warning,” the majority\\ndeem this an “obvious case” for denial of immunity, because the “officers had\\ntime and opportunity to give a warning and yet chose to shoot first instead.”\\nThe “obvious case” rationale again derives, in the majority’s view, from Garner,\\nfortified only by one Fifth Circuit case and the Supreme Court’s decision in\\nKisela v Hughes. 5\\n DISCUSSION\\n The only legal question that needs to be addressed by this court is\\nwhether, under the circumstances of this five-second confrontation, every\\nreasonable police officer would have reasonably perceived no life-threatening\\ndanger such that deadly force could be used to incapacitate Cole without a\\npreliminary warning. Put otherwise, as a matter of law, was it clearly\\nestablished that officers may not fire on a suspect, armed and ready to shoot a\\npistol, who is turning in their direction with one of their brethren ten to twenty\\nfeet away, unless the gun barrel points at them or they first shout a warning\\nand await his response?\\n The majority deny qualified immunity, seeming to answer on the basis\\nof “disputed fact issues” that Cole posed “no threat.” The majority’s reasoning\\n\\n\\n\\n\\n 5 This dissent focuses on the majority opinion because Appellees’ briefing offered\\nnothing in addition to the meager authorities cited by the majority to support their “clearly\\nestablished law” theory.\\n\\n\\n\\n\\n 29\\n\\n Case: 14-10228 Document: 00515084758 Page: 30 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nis at too high a level of generality. And the majority ignore the critical criterion\\nfor qualified immunity in Fourth Amendment cases: the reasonableness of the\\nofficers’ reasonable perceptions. In sum, the majority here double down on the\\nmistakes that got our court reversed in Mullenix. 6\\n Before discussing these problems in detail, it is necessary to recapitulate\\nthe reasoning behind the Supreme Court’s qualified immunity cases. The\\nmajority’s bare mention of the standards for qualified immunity ignores the\\nCourt’s rationale for the defense. Beginning with Monroe v. Pape in 1961, the\\nSupreme Court unleashed federal courts to enforce constitutional commands\\nagainst state actors pursuant to 42 U.S.C. § 1983. See Monroe v. Pape,\\n365 U.S. 167, 187, 81 S. Ct. 473, 484 (1961). A foreseeable consequence of\\nfacilitating such lawsuits was that a deluge of litigation would follow, at least\\nsome of it ill-founded or frivolous. What was to be done to limit claims to those\\nthat might have merit? The Court decided in Pierson v. Ray that police officers\\nsued under Section 1983 should enjoy qualified immunity accorded at common\\nlaw. 386 U.S. 547, 556-57, 87 S. Ct. 1213, 1219 (1967).\\n For over fifty years, the Court has developed the standards of qualified\\nimmunity, well aware from the beginning that “the local police officer” is “that\\nsegment of the executive branch . . . that is most frequently and intimately\\ninvolved in day-to-day contacts with the citizenry, and hence, most frequently\\nexposed to situations which can give rise to claims under Sec. 1983 . . . .”\\nScheuer v. Rhodes, 416 U.S. 232, 244-45, 94 S. Ct. 1683, 1691-92 (1974). The\\n\\n\\n\\n\\n 6 In Mullenix, the Supreme Court reversed this court and held an officer entitled as a\\nmatter of law to qualified immunity when he shot, and killed, a suspect fleeing from the police\\nin his car at high speed. Following Mullenix, the Supreme Court vacated the judgment and\\nremanded Cole I, no doubt in part because Cole I heavily relied on the reversed panel decision\\nin Mullenix.\\n\\n 30\\n\\n Case: 14-10228 Document: 00515084758 Page: 31 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nbreadth of this shield represents a deliberate balance between affording a\\ndamages remedy for constitutional abuses and the social and personal costs\\ninflicted by meritless claims. Anderson v. Creighton, 483 U.S. 635, 638,\\n107 S. Ct. 3034, 3038 (1987). The costs to society include the costs of litigation,\\nthe diversion of limited public resources, the deterrence of able people from\\ngoing into public service, and the danger that fear of being sued will discourage\\nofficials from vigorously performing their jobs. Id.; Harlow v. Fitzgerald,\\n457 U.S. 800, 814, 102 S. Ct. 2727, 2736 (1982). The devastating costs imposed\\nby unfounded lawsuits on officers otherwise entitled to immunity are\\nreputational, potentially employment-related, financial and emotional. For\\nthese reasons, the Court has repeatedly explained that qualified immunity\\nshields public officials not just from liability but from suit. See Mitchell v.\\nForsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815 (1985); Pearson v. Callahan,\\n555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (“Qualified immunity is lost if a\\ncase is erroneously permitted to go to trial.”). Some in the lower federal courts\\nmay disapprove of the Court’s half century of authorities, but we may not\\nfunctionally disregard them.\\n Nearly as venerable as the general defense of qualified immunity are the\\ndecisions applying it to Fourth Amendment claims against law enforcement\\nofficers. Anderson v. Creighton affirmed in 1987 that a law enforcement officer\\nwho participates in a warrantless search may be entitled to qualified immunity\\n“if he could establish as a matter of law that a reasonable officer could have\\nbelieved the search to be lawful.” 483 U.S. at 638, 107 S. Ct. at 3038.\\nJustice Scalia’s opinion reminded that “qualified immunity protects all but the\\nplainly incompetent or those who knowingly violate the law.” Id. (internal\\nquotation marks omitted). In determining the objective legal reasonableness\\nof the allegedly unlawful action, “[i]t should not be surprising . . . that our cases\\n\\n\\n 31\\n\\n Case: 14-10228 Document: 00515084758 Page: 32 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nestablish that the right the official is alleged to have violated must have been\\n‘clearly established’ in a more particularized, and hence more relevant, sense:\\nThe contours of the right must be sufficiently clear that a reasonable official\\nwould understand that what he is doing violates that right.” Id. at 640,\\n107 S. Ct. at 3039.\\n Two years later, the Court clarified that for alleged Fourth Amendment\\nexcessive force violations, reasonableness “must be judged from the perspective\\nof a reasonable officer on the scene, rather than with the 20/20 vision of\\nhindsight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872. The calculus of\\n“reasonableness must embody allowance for the fact that police officers are\\noften forced to make split-second judgments—in circumstances that are tense,\\nuncertain, and rapidly evolving—about the amount of force that is necessary\\nin a particular situation.” Id. at 396-97, 109 S. Ct. at 1872. Ultimately, “the\\nquestion is whether the officers’ actions are ‘objectively reasonable’ in light of\\nthe facts and circumstances confronting them . . . .” Id. at 397, 109 S. Ct. at\\n1872. Quoting these statements from Graham, the Court later explained that\\nthe test for qualified immunity for excessive force “has a further dimension” in\\naddition to the deferential, on-the-scene evaluation of objective\\nreasonableness. Saucier v. Katz, 533 U.S. 194, 205, 121 S. Ct. 2151, 2158\\n(2001). Justice Kennedy explained: “The concern of the immunity inquiry is to\\nacknowledge that reasonable mistakes can be made as to the legal constraints\\non particular police conduct.” Id. “Qualified immunity operates in this case,\\nthen, just as it does in others, to protect officers from the sometimes hazy\\nborder between excessive and acceptable force and to ensure that before they\\nare subjected to suit, officers are on notice their conduct is unlawful.” Id. at\\n206, 121 S. Ct. at 2158 (internal citation and quotation marks omitted).\\n\\n\\n\\n\\n 32\\n\\n Case: 14-10228 Document: 00515084758 Page: 33 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Evaluating the qualified immunity defense is thus a two-step process.\\nThe first is to determine whether the Fourth Amendment has been violated by\\nconduct that, viewed from the officer’s perspective and information at the time,\\nis objectively unreasonable. 7 The second step assesses the objective legal\\nreasonableness of the action, that is, whether every reasonable officer would\\nhave known that the conduct in question was illegal. See Pearson, 555 U.S. at\\n232, 129 S. Ct. at 815-16. The illegality must have been apparent, as held in\\ncases that are factually similar to the situation confronting the officer. White,\\n137 S. Ct. at 542. Immunity must be granted to all but the plainly incompetent\\nor those who knowingly violate the law. The Supreme Court has enforced\\nimmunity where officers acted negligently, Anderson, 483 U.S. at 641,\\n107 S. Ct. at 3039-40; or when they could have used another method to subdue\\na suspect, Mullenix, 136 S. Ct at 310; or when the law governing their behavior\\nin particular circumstances is unclear. White, 137 S. Ct. at 552. The Court\\nemphasizes that the specificity of the applicable “clearly established” rule is\\nespecially important in Fourth Amendment cases. Mullenix, 136 S. Ct. at 308.\\n By denying plaintiffs their “day in court” at a preliminary stage,\\nqualified immunity operates as a counterintuitive, albeit vital, defense. Thus,\\nthe Supreme Court has regularly reversed denials of qualified immunity where\\nlower courts misapplied the standards. See Wesby v. District of Columbia,\\n816 F.3d 96, 102 (D.C. Cir. 2016) (Kavanaugh, J., dissenting) (citing eleven\\nSupreme Court cases in five years reversing lower courts in the qualified\\nimmunity context including Mullenix v. Luna, 136 S. Ct. 305 (2015), Taylor v.\\n\\n\\n\\n\\n 7 For present purposes, we “address only the qualified immunity question, not whether\\nthere was a Fourth Amendment violation in the first place.” Mullenix, 136 S. Ct. at 308;\\nPearson, 555 U.S. at 236, 129 S. Ct. at 818 (constitutional violation or qualified immunity\\nmay be decided first).\\n\\n 33\\n\\n Case: 14-10228 Document: 00515084758 Page: 34 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nBarkes, 135 S. Ct. 2042 (2015); City and County of San Francisco, Calif. v.\\nSheehan, 135 S. Ct. 1765 (2015); Carroll v. Carman, 574 U.S. 13, 135 S. Ct.\\n348 (2014); Plumhoff v. Rickard, 572 U.S. 765, 134 S. Ct. 2012 (2014); Wood v.\\nMoss, 572 U.S. 744, 134 S. Ct. 2056 (2014); Stanton v. Sims, 571 U.S. 3,\\n134 S. Ct. 3 (2013); Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 2088 (2012);\\nRyburn v. Huff, 565 U.S. 469, 132 S. Ct. 987 (2012); Messerschmidt v.\\nMillender, 565 U.S. 535, 132 S. Ct. 1235 (2012); Ashcroft v. al-Kidd, 563 U.S.\\n731, 131 S. Ct. 2074 (2011)). Unfortunately, the majority here has fallen into\\nthe trap of “letting the jury sort out the truth” despite the gravity of the\\nsituation these officers faced.\\n As explained above, it is undisputed that the two officers confronted and\\nthen shot at Cole as he emerged from dense bushes ten to twenty feet from\\nOfficer Hunter, unaware of their presence, and began to turn in their direction.\\nThis all happened within three to five seconds. While he turned, Cole held a\\nloaded 9mm semiautomatic pistol, finger on the trigger, pointed in the\\ndirection of his own head. The officers knew he was mentally distraught, had\\nignored other police commands to disarm, had issued threats, and proceeded\\nwalking in the direction of nearby schools.\\n For immunity purposes, the question phrased one way is whether any\\nreasonable officers could have believed that Cole’s split-second turning toward\\nthem posed a life-threatening danger such that lethal force was necessary.\\nAlternatively, what “clearly established law” held as of October 2010 that\\nunder all of the relevant circumstances, deadly force was not justified unless\\neither a warning was given and the suspect allowed a chance to react, or the\\nsuspect actually turned his loaded pistol on the officer? The answer here\\ndirectly parallels the Supreme Court’s reasoning in Mullenix, which the\\nmajority seriously shortchanged.\\n\\n\\n 34\\n\\n Case: 14-10228 Document: 00515084758 Page: 35 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n In Mullenix, this court had denied qualified immunity to a trooper whose\\nshot fatally wounded a suspect fleeing police in a high-speed chase. The\\nSupreme Court’s basic criticism of the panel decision was this: “In this case,\\nthe Fifth Circuit held that Mullenix violated the clearly established rule that\\na police officer may not use deadly force against a fleeing felon who does not\\npose a sufficient threat of harm to the officer or others. Yet this Court has\\npreviously considered—and rejected—almost that exact formulation of the\\nqualified immunity question in the Fourth Amendment context.” Mullenix,\\n136 S. Ct. at 308-09 (internal quotation marks and citation omitted).\\n The majority here posit as clearly established law, indeed an “obvious\\ncase,” that a police officer may not use deadly force—without prior warning—\\nagainst an armed, distraught suspect who, with finger in the pistol’s trigger,\\nposed “no threat” while turning toward an officer ten to twenty feet away. But\\nin Mullenix, the Supreme Court reversed this court because “[t]he general\\nprinciple that deadly force requires a sufficient threat hardly settles this\\nmatter.” Id. at 309. Likewise, here, the majority’s “no threat” and “obvious\\ncase” conclusions do not settle the matter of clearly established law. 8\\n That the majority here purport to extract clearly established law from\\nTennessee v. Garner was rebuked in Mullenix. The Supreme Court corrected\\nthis court by summary reversal because the Court itself had summarily\\nrejected applying the general standard of Tennessee v. Garner to deny qualified\\nimmunity. Mullenix, 136 S. Ct. at 309 (citing Brosseau v. Haugen, 543 U.S.\\n194, 199, 125 S. Ct. 596, 599 (2004)). Instead, the “correct inquiry” was\\n\\n\\n\\n\\n 8 Worse, it treats as a disputed fact issue for immunity purposes what is clearly an\\nissue of law. See Wyatt v. Fletcher, 718 F.3d 496, 502-03 (5th Cir. 2013).\\n\\n\\n 35\\n\\n Case: 14-10228 Document: 00515084758 Page: 36 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nwhether it was clearly established that the Fourth Amendment prohibited the\\nofficer’s conduct in the precise situation she confronted. Id. Including\\nMullenix and Brosseau, a series of Supreme Court cases has held that\\nTennessee v. Garner does not state “clearly established law” governing the use\\nof deadly force other than in Garner’s precise factual context, the shooting of\\nan unarmed burglary suspect fleeing away from an officer. 9 The confrontation\\nin this case with an armed, ready-to-fire suspect is “obviously” different.\\n We fail to understand how the denial of qualified immunity to Officers\\nHunter and Cassidy can be rescued simply by intoning that this is an “obvious\\ncase” under Garner. Garner affirmed the constitutionality of deadly force\\nagainst suspects when necessary to protect the life of officers or others “if,\\nwhere feasible, some warning has been given.” 471 U.S. at 11-12, 105 S. Ct. at\\n1701. 10 But Garner in no way renders “clearly established” a requirement to\\ngive a warning, and await the suspect’s response, before shooting. Nor does it\\nmandate that the suspect’s weapon be trained on the officer or others. Like\\nthe rest of the calculus surrounding Fourth Amendment reasonableness, the\\n“feasibility” of any such potentially deadly delay or factual nuance must be\\nsubjected to case-specific balancing with deference paid to the officer’s\\nreasonable perceptions in the midst of a tense situation. Graham, 490 U.S. at\\n396, 109 S. Ct. at 1872. Indeed, in describing its holding at the outset, Garner\\nstates only that “[deadly] force may not be used unless it is necessary to\\nprevent the escape [of an apparently unarmed suspected felon] and the officer\\n\\n\\n\\n\\n 9 Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018); White, 137 S. Ct. at 552.\\n\\n 10 Turning on distinctly different facts, Garner alone does not establish pertinent\\nclearly established law here, and the majority does not contend as much.\\n\\n\\n\\n\\n 36\\n\\n Case: 14-10228 Document: 00515084758 Page: 37 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhas probable cause to believe that the suspect poses a significant threat of\\ndeath or serious physical injury to the officer or others.” 471 U.S. at 3,\\n105 S. Ct. at 1697. 11 No mention of a warning appears in this introduction,\\nand “probable cause,” not a fact-specific test, is the measure of the threat of\\nharm.\\n Characterizing this case as a “no threat” or “obvious” Fourth Amendment\\nviolation is wrong for additional reasons. Whether, under the material\\nundisputed facts, Cole presented “no threat” to a reasonable police officer is\\nthe relevant issue to assess a Fourth Amendment violation. But the immunity\\nquestion, which the majority elides, is whether every reasonable officer in this\\nfactual context would have known he could not use deadly force. See Pearson,\\n555 U.S. at 232, 129 S. Ct. at 815-816. The majority’s analysis conflates these\\ninquiries. Second, the importance of grounding the inquiry in a specific factual\\ncontext cannot be overstated. In this case, if Officer Hunter had stood a\\nhundred feet away from Cole, or Cole had not been turning toward the officers,\\nor Cole had put the handgun in his pocket and wasn’t touching it, the analysis\\nof qualified immunity could be quite different. Third, describing a situation as\\nposing “no threat” is a conclusion, not an explanation or, as the majority seems\\nto think, an exception to defining clearly established law in a specific context.\\nNo doubt there are rare “obvious” cases of Fourth Amendment violations\\n\\n\\n\\n\\n 11 The majority cites Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997), for the\\nnecessity of giving a warning “where feasible” before the use of deadly force. Oddly, Colston\\nthen immediately holds that the officer there “lying on his back with Colston nearby, had to\\nimmediately decide whether to shoot. In light of the totality of the circumstances facing\\nBarnhart, Barnhart’s failure to give a warning was not objectively unreasonable.” Id. The\\nfeasibility of a warning is part of the overall Fourth Amendment analysis, not an independent\\nsine qua non of official conduct.\\n\\n\\n\\n\\n 37\\n\\n Case: 14-10228 Document: 00515084758 Page: 38 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncommitted by officers who are plainly incompetent or who knowingly violate\\nthe law. In the wide gap between acceptable and excessive uses of force,\\nhowever, immunity serves its important purpose of encouraging officers to\\nenforce the law, in “tense, uncertain and rapidly evolving” split-second\\nsituations, rather than stand down and jeopardize community safety. 12\\n In their sole, erroneous dependence on Garner, the majority, “can cite no\\ncase from [the Supreme] Court denying qualified immunity because officers\\n[entitled to apprehend Cole] selected one dangerous alternative over another.”\\nMullenix, 136 S. Ct. at 310. The Mullenix Court showed that if anything,\\n“clearly established law” was contrary to the plaintiff’s position. The Court\\ncited two prior Supreme Court car chase cases that resulted in immunity even\\nthough the fugitives—unlike the suspect in Mullenix—had not verbally\\nthreatened to kill any officers in their path. Id. at 310 (citing Scott, 550 U.S.\\nat 384, 127 S. Ct. at 1778; Plumhoff, 572 U.S. at 777, 134 S. Ct at 2022). And\\nin Mullenix itself, as here, the trooper had not warned the fugitive before\\nshooting at his speeding car. These cases “reveal[ed] the hazy legal backdrop\\nagainst which Mullenix acted,” Id. at 309. Accordingly, the Court admonished,\\n“[w]hatever can be said of the wisdom of Mullenix’s choice, this Court’s\\nprecedents do not place the conclusion that he acted unreasonably in these\\ncircumstances beyond debate.” Id. at 311 (internal quotation marks omitted).\\n Not only do the majority cite “no case” in which the Supreme Court\\ndenied qualified immunity to an officer who used deadly force against a\\n\\n\\n\\n\\n 12Compare Wesby, 138 S. Ct. at 590 (“Of course, there can be the rare obvious case,\\nwhere the unlawfulness of the officer’s conduct is sufficiently clear even though existing\\nprecedent does not address similar circumstances. But a body of relevant case law is usually\\nnecessary to clearly establish the answer with respect to probable cause.”) (internal citation\\nand quotation marks omitted).\\n\\n 38\\n\\n Case: 14-10228 Document: 00515084758 Page: 39 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nmentally distraught individual in circumstances like the present case, but to\\nthe contrary, the Court required qualified immunity in two somewhat similar\\ncases. In Sheehan, officers used deadly force to subdue a mentally ill woman\\nduring an armed confrontation. The Court restated that the Fourth\\nAmendment is not violated even if police officers, with the benefit of hindsight,\\nmay have made some mistakes, because “[t]he Constitution is not blind to ‘the\\nfact that police officers are often forced to make split-second judgments.’”\\nSheehan, 135 S. Ct. at 1775 (quoting Plumhoff, 572 U.S. at 775, 134 S. Ct. at\\n2020).\\n Even closer to this case is White v. Pauly, where an officer arriving at the\\nscene of an armed confrontation shot and killed a suspect without knowing\\nwhether his earlier-arrived colleagues had identified themselves as police.\\n137 S. Ct. at 550-51. In White, the Court chastised the lower court for\\n“misunderst[anding]” the “clearly established” analysis by relying on the\\ngeneralized pronouncements in Graham and Garner. Id. at 552. Whether\\nOfficer White should have second-guessed the preceding conduct of fellow\\nofficers hardly presented an “obvious case” pursuant to Garner. The Court\\nspeculated that perhaps, given the three-minute delay between when he\\narrived and when shots rang out, Officer White “should have realized that [a\\nwarning about police presence] was necessary before using deadly force.” Id.\\nThere is a world of difference between three minutes and three seconds, which\\nOfficer Hunter had here, and between Officer White’s securing himself behind\\na stone wall fifty feet from the suspect and Officer Hunter’s standing fully\\nexposed only ten to twenty feet away from Cole. The majority cannot reconcile\\nthe Supreme Court’s insistence upon qualified immunity in White with their\\ndenial of the defense to Officers Hunter and Cassidy.\\n\\n\\n\\n\\n 39\\n\\n Case: 14-10228 Document: 00515084758 Page: 40 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Kisela v. Hughes, cited in support of the majority, in no way articulates\\nclearly established law concerning the necessity of a warning. First, the Court\\nin Kisela overturned the Ninth Circuit’s denial of qualified immunity without\\naddressing the preliminary Fourth Amendment violation. 138 S. Ct. at 1152.\\nA decision holding only that there was no “clearly established law” cannot itself\\nhave defined “clearly established law.” The Court also criticized the Ninth\\nCircuit for failing to implement correctly the rule that an officer has not\\n“violated a clearly established right unless the right’s contours were\\nsufficiently definite that any reasonable official in the defendant’s shoes would\\nhave understood that he was violating it.” Id. at 1153 (internal quotation\\nmarks omitted). The Court catalogued all the relevant circumstances of the\\nconfrontation that provoked the shooting: a knife-armed, threatening suspect,\\nwhose bizarre behavior had been called in to 911, disobeyed officers’ commands\\nto disarm for up to one minute before they felt compelled to shoot. Id. The\\nCourt concluded, “[t]his is far from an obvious case in which any competent\\nofficer would have known that shooting Hughes to protect [the third party]\\nwould violate the Fourth Amendment.” Id. Also “far from obvious” is the case\\nbefore us, in which the officers had five seconds, not a whole minute, in which\\nto decide whether to shoot at Cole.\\n Finally, the Supreme Court’s decision in Tolan v. Cotton adds nothing to\\nthe substance of the qualified immunity discussion. In Tolan, the Court\\nenumerated four critical, disputed evidentiary contentions relating to the\\nofficer’s perception of danger to himself and thus to qualified immunity.\\n572 U.S. 650, 657-59, 134 S. Ct. 1861, 1866-67 (2014). Because this court had\\nfailed to credit the plaintiff’s disputed version of these facts, the Court vacated\\nsummary judgment for the officer and remanded without deciding any merits\\n\\n\\n\\n\\n 40\\n\\n Case: 14-10228 Document: 00515084758 Page: 41 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nissue. Id. at 657, 134 S. Ct. at 1866. In contrast, this dissent credits only\\nundisputed material facts and plaintiffs’ version of disputable facts.\\n Like this court’s panel in Mullenix, the majority here offer no controlling\\nSupreme Court precedent, including Garner, to support that “clearly\\nestablished law” mandated that the officers hold their fire until they had both\\nwarned Cole and given him a chance to drop his gun or until he pointed the\\nloaded weapon directly at them.\\n For good measure, the Mullenix Court also considered the potential\\nsimilarity of lower court decisions that dealt with qualified immunity.\\n136 S. Ct. at 311. Fifth Circuit case law, the Court noted, did not “clearly\\ndictate the conclusion that Mullenix was unjustified in perceiving grave danger\\nand responding accordingly.” Id. at 311 (citing Lytle v. Bexar County, 560 F.3d\\n404, 412 (5th Cir. 2009)). But the Court quoted with approval an Eleventh\\nCircuit case that granted immunity to a sheriff’s deputy who fatally shot a\\nmentally unstable individual “who was attempting to flee in the deputy’s car,\\neven though at the time of the shooting the individual had not yet operated the\\ncruiser dangerously. The court explained that ‘the law does not require officers\\nin a tense and dangerous situation to wait until the moment a suspect uses a\\ndeadly weapon to act to stop the suspect…’” Id. at 311 (quoting Long v. Slaton,\\n508 F.3d 576, 581-82 (11th Cir. 2007)). Here, too, the thrust of Mullenix\\ncontradicts the majority’s logic and holding.\\n Moreover, to the extent it is relevant 13, Fifth Circuit law does not support\\ndenying qualified immunity to Officers Hunter and Cassidy. The district court\\n\\n\\n\\n\\n 13 See fn. 4, supra.\\n\\n\\n\\n\\n 41\\n\\n Case: 14-10228 Document: 00515084758 Page: 42 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nand, inferentially, the majority demand that qualified immunity be granted\\nonly if the suspect either disobeys immediate commands to disarm or points\\nhis weapon at the officers. The district court described such threatening\\nactions as a Manis act. 14 It is true that in previous deadly force cases, this\\ncourt approved qualified immunity for officers who reasonably believed that a\\nnon-compliant suspect was reaching toward where he could retrieve a weapon.\\nSee Manis, 585 F.3d at 842; see also Reese v. Anderson, 926 F.2d 494, 500-01\\n(5th Cir. 1991); Young v. City of Killeen, Tx., 775 F.2d 1349, 1352 (5th Cir.\\n1985). The hitch in these particular cases is that there wasn’t actually a\\nweapon, yet the officer’s objectively reasonable perception was determinative\\nas a matter of law. In another such officer shooting case, this court upheld\\nqualified immunity where the suspect, who was being interrogated for drunk\\ndriving at the side of a freeway, turned to walk away from the officer, then\\nappeared to turn around toward him while reaching under his shirttail for\\nwhat the officer thought could be a concealed weapon. Salazar-Limon v. City\\nof Houston, 826 F.3d 272, 278 (5th Cir. 2016). This court added,\\n“[f]urthermore, …in the context of this case, it is immaterial whether Salazar\\nturned left, right, or at all before being shot. Specifically, we have never\\nrequired officers to wait until a defendant turns toward them, with weapon in\\nhand, before applying deadly force to ensure their safety.” 826 F.3d at 279 n.\\n6.\\n While a “Manis act” can sustain qualified immunity even where no\\nweapon is visible, it is not logical for an additional “act” to be mandated where\\nthe officers confront a suspect armed, ready to shoot his pistol, and turning\\ntoward them. An officer may be forced into shooting an unarmed suspect by a\\n\\n\\n\\n\\n 14 Manis v. Lawson, 585 F.3d 839 (5th Cir. 2009).\\n\\n 42\\n\\n Case: 14-10228 Document: 00515084758 Page: 43 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nManis act, and thus obtain qualified immunity. But it is perverse and\\ninconsistent with Fifth Circuit law to hold that the officer has no qualified\\nimmunity because she is constitutionally forbidden to shoot an armed suspect\\nin close quarters without either looking down the barrel of the weapon or\\nawaiting his response to her command.\\n In fact, that is exactly what this court has not held. In Ramirez v.\\nKnoulton, 542 F.3d 124, 127 (5th Cir. 2008), police shot a suspect they believed\\nto be suicidal as he stood in profile to them, with a handgun in his right hand,\\nand brought his hands together in front of his waist.” He “never raised his\\nweapon nor aimed it at the officers.” Id. at 129. The court held that based on\\nthe officers’ reasonable perception, no Fourth Amendment violation occurred,\\nbecause the Constitution “does not require police officers to wait until a suspect\\nshoots to confirm that a serious threat of harm exists.” Id. at 130. See also\\nColston, 130 F.3d at 100; Ontiveros, 564 F.3d at 385 (holding no constitutional\\nviolation where officer thought suspect was reaching into his boot for a weapon\\nduring confrontation in a mobile home). As the Supreme Court put it in\\nMullenix, “the mere fact that courts have approved deadly force in more\\nextreme circumstances says little, if anything, about whether such force was\\nreasonable in the circumstances here.” 136 S. Ct. at 312.\\n The majority describe only one Fifth Circuit police shooting case, out of\\ndozens this court has decided, as an “obvious case.” Baker v. Putnal, 75 F.3d\\n190 (5th Cir. 1996). Whether that characterization applies to the claimed\\nFourth Amendment violation in Baker, to qualified immunity analysis, or\\nsimply to this court’s decision to remand for trial is unclear in the majority\\nopinion. Baker, however, says nothing about the merits of the case or about\\nclearly established law, holding instead that “[t]here are simply too many\\nfactual issues to permit the Bakers’ § 1983 claims to be disposed of on summary\\n\\n\\n 43\\n\\n Case: 14-10228 Document: 00515084758 Page: 44 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment.” Baker, 75 F.3d at 198. Hence, like Kisela, Baker cannot support\\nany rule of clearly established law, much less explain what law is “obvious.”\\nSignificantly, in Baker, whether the suspect was holding a gun visible to the\\nofficer was an important hotly contested issue, with eyewitnesses contradicting\\nthe officer’s account of the incident. Baker, 75 F.3d at 198. Cole’s case, in\\ncontrast, does not involve a “chaos on the beach” incident. The undisputed\\nfacts are starkly different here. It is undisputed, at a minimum, that Cole was\\nholding a loaded weapon, his finger in the trigger, as he emerged from the\\nwoods; he was turning toward the officers; and they had five seconds to react.\\nBaker does not show that the officers’ conduct in Cole violated clearly\\nestablished law.\\n To sum up, the majority opinion here repeats every error identified by\\nthe Supreme Court when it granted summary reversal in Mullenix and sent\\nthe instant case back for reconsideration. The majority’s “clearly established”\\nrule has changed, but not its errors. Tennessee v. Garner does not formulate\\n“clearly established law” with the degree of specificity required by the Supreme\\nCourt’s decisions on qualified immunity. The majority’s “no threat” and\\n“obvious case” statements pose the issues here at an excessive level of\\ngenerality. The majority has no Supreme Court case law demonstrating that\\nOfficers Hunter and Cassidy were either plainly incompetent or had to know\\nthat shooting at Cole was unconstitutional under the circumstances before\\nthem and with the knowledge they possessed—he was mentally distraught; he\\nwas armed with his finger in the pistol’s trigger; he was very close to Hunter;\\nhe had been walking in the direction of schools for which extra police protection\\nhad been ordered; and he had ignored other officers’ commands to stop and\\ndrop his weapon. And they had three to five seconds to decide how dangerous\\nhe could be to them. The majority cites not one case from this court denying\\n\\n\\n 44\\n\\n Case: 14-10228 Document: 00515084758 Page: 45 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nqualified immunity under similar circumstances. Mullenix aptly summed it\\nup for our purposes: “qualified immunity protects actions in the hazy border\\nbetween excessive and acceptable force.” 136 S. Ct. at 312 (internal quotation\\nmarks omitted). “[T]he constitutional rule applied by the Fifth Circuit was not\\n‘beyond debate.’” Id.\\n It is not “clearly established” that police officers confronting armed,\\nmentally disturbed suspects in close quarters must invariably stand down\\nuntil they have issued a warning and awaited the suspects’ reaction or are\\nfacing the barrel of a gun. “This was not a belief in possible harm, but a belief\\nin certain harm. The fact that they would later discover this to be a mistaken\\nbelief does not alter the fact that it was objectively reasonable for them to\\nbelieve in the certainty of that risk at that time.” Carnaby v. City of Houston,\\n636 F.3d 183, 188 n.4 (5th Cir. 2011). That is the law in the Fifth Circuit, and\\nthe majority has pointed to no clearly established law otherwise. Shooting at\\nCole may not have been the wisest choice under these pressing circumstances,\\nbut the officers’ decision, even if assailable, was at most negligent. Hunter and\\nCassidy were neither plainly incompetent nor themselves lawbreakers. While\\nwe are confident a jury will vindicate their actions, they deserved qualified\\nimmunity as a matter of law. We dissent.\\n\\n\\n\\n\\n 45\\n\\n Case: 14-10228 Document: 00515084758 Page: 46 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431351/\", \"author_raw\": \"and OLDHAM, Circuit Judges, dissenting\"}, {\"author\": \"JERRY E. SMITH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JERRY E. SMITH, Circuit Judge, dissenting:\\n\\n This is a “red flag” case if ever there was one. The en banc majority\\ncommits grave error, as carefully explained in the dissents by Judge Jones,\\nJudge Willett, Judges Ho and Oldham (jointly), and Judge Duncan. Yet eleven\\njudges join the majority.\\n\\n Abandon hope, all ye who enter Texas, Louisiana, or Mississippi as peace\\nofficers with only a few seconds to react to dangerous confrontations with\\nthreatening and well-armed potential killers. In light of today’s ruling and the\\nraw count of judges, 1 there is little chance that, any time soon, the Fifth Circuit\\nwill confer the qualified-immunity protection that heretofore-settled Supreme\\nCourt and Fifth Circuit caselaw requires.\\n\\n Red flags abound. Judge Duncan cogently details the “rich vein of facts”\\ndescribing this plaintiff’s undisputed actions in the hours leading up to the\\nshooting. 2\\n\\n • Red flag: a 9mm semi-automatic handgun and ammunition.\\n • Red flag: a double-barrel shotgun with shells.\\n • Red flag: a .44 magnum revolver.\\n • Red flag: a .38 revolver.\\n • Red flag: a suspect who had broken into a gun safe and stolen\\n an unknown quantity of weapons and ammunition.\\n • Red flag: a police visit the night before to the suspect’s house\\n because of a disturbance with his parents.\\n\\n\\n\\n\\n 1This en banc court consists of the sixteen active judges, plus two senior judges who\\nwere on the original panel. Of those sixteen active judges, nine join the majority opinion.\\n 2I especially refer the reader to Part I of Judge Duncan’s dissent, which sets forth the\\ncontext and narrative of red-flag facts that easily justify qualified immunity. All three dis-\\nsents persuasively explain the law of qualified immunity that the majority overlooks.\\n\\n 46\\n\\n Case: 14-10228 Document: 00515084758 Page: 47 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n • Red flag: a suspect with a dangerous knife at his parents’\\n house.\\n • Red flag: a suspect who had a wild look in his eye and was\\n smoking K2.\\n • Red flag: a suspect, distraught over breaking up with his girl-\\n friend, moving toward the school where she was a student.\\n • Red flag: a suspect near an elementary school.\\n • Red flag: a suspect with personal issues including drug abuse.\\n • Red flag: a suspect seen running through the woods with at\\n least three weapons.\\n • Red flag: a suspect irate and distraught.\\n • Red flag: a suspect who said he would shoot anyone who came\\n near him.\\n • Red flag: a suspect armed with at least one handgun and pos-\\n sibly three.\\n • Red flag: a suspect who had refused police demands to drop his\\n weapon.\\n • Red flag: a suspect who deposited a cache of weapons and am-\\n munition at a friend’s house after arguing with his parents.\\n • Red flag: a suspect who yelled obscenities at an officer.\\n • Red flag: a suspect who had threatened to kill his girlfriend\\n and himself.\\n • Red flag: a suspect whom the district court described as\\n troubled.\\n • Red flag: a suspect described in his complaint as suffering from\\n obsessive compulsive disorder, treated with medications from\\n numerous medical professionals, and having poor judgment and\\n impaired impulse control.\\n\\n * * * * *\\n\\n\\n Normally we expect police officers to recognize such red flags and to\\nrespond appropriately. Instead of protecting these officers from obvious dan-\\nger to themselves and the public, however, the en banc majority orders them\\n\\n 47\\n\\n Case: 14-10228 Document: 00515084758 Page: 48 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nto stand down. What is the hapless officer to do in the face of today’s decision?\\nWhat indeed is the “clearly established law” that the majority now announces?\\nThe judges in the majority do not say.\\n\\n The law of qualified immunity was poignantly summarized in 2019 by a\\ndissenting judge who is now in the majority. Today’s en banc ruling turns\\nthose words to dust. 3\\n\\n I respectfully dissent.\\n\\n\\n\\n\\n 3 Winzer v. Kaufman Cty., 916 F.3d 464, 482 (5th Cir. 2019) (Clement, J., dissenting),\\npetition for rehearing en banc pending:\\n The implications of the majority’s mistakes cannot be minimized.\\n The majority decides that qualified immunity can be endangered by an\\n affidavit filed at summary judgment that creates a fact issue nowhere else\\n supported by record evidence.\\n Worse still, it seriously undermines officers’ ability to trust their\\n judgment during those split seconds when they must decide whether to use\\n lethal force. Qualified immunity is designed to respect that judgment,\\n requiring us to second-guess only when it clearly violates the law. The\\n standard acknowledges that we judges—mercifully—never face that split\\n second. Indeed, we never have to decide anything without deliberation—let\\n alone whether we must end one person’s life to preserve our own or the lives of\\n those around us.\\n The qualified immunity standard stops this privilege from blinding\\n our judgment, preventing us from pretending we can place ourselves in the\\n officers’ position based on a cold appellate record. It prevents us from\\n hubristically declaring what an officer should have done—as if we can expect\\n calm calculation in the midst of chaos.\\n The majority opinion, written from the comfort of courthouse\\n chambers, ignores that deference. Instead, it warns officers that they cannot\\n trust what they see; they cannot trust what their fellow officers observe; they\\n cannot trust themselves when posed with a credible threat. It instructs them,\\n in that pivotal split second, to wait. But when a split second is all you have,\\n waiting itself is a decision—one that may bring disastrous consequences.\\n\\n 48\\n\\n Case: 14-10228 Document: 00515084758 Page: 49 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431351/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge, dissenting\"}, {\"author\": \"DON R. WILLETT, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"DON R. WILLETT, Circuit Judge, dissenting:\\n\\n I repeat what I said last month: The entrenched, judge-invented\\nqualified immunity regime ought not be immune from thoughtful reappraisal. 1\\n Qualified immunity strikes an uneasy, cost–benefit balance between two\\ncompeting deterrence concerns: “the need to hold public officials accountable\\nwhen they exercise power irresponsibly and the need to shield officials from\\nharassment, distraction, and liability when they perform their duties\\nreasonably.” 2 By insulating incaution, the doctrine formalizes a rights–\\nremedies gap through which untold constitutional violations slip unchecked.\\nThe real-world functioning of modern immunity practice—essentially “heads\\ngovernment wins, tails plaintiff loses”—leaves many victims violated but not\\nvindicated. More to the point, the “clearly established law” prong, which is\\noutcome-determinative in most cases, makes qualified immunity sometimes\\nseem like unqualified impunity: “letting public officials duck consequences for\\nbad behavior—no matter how palpably unreasonable—as long as they were the\\nfirst to behave badly.” 3\\n That said, as a middle-management circuit judge, I take direction from\\nthe Supreme Court. And the Court’s direction on qualified immunity is\\nincreasingly unsubtle. We must respect the Court’s exacting instructions—\\neven as it is proper, in my judgment, to respectfully voice unease with them. 4\\n\\n\\n\\n\\n 1 Zadeh v. Robinson, 928 F.3d 457, 474 (5th Cir. 2019) (Willett, J., concurring in part,\\ndissenting in part).\\n 2 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (flagging these “two important\\n\\ninterests”).\\n 3 Zadeh, 928 F.3d at 479.\\n 4 See, e.g., State Oil Co. v. Khan, 522 U.S. 3 (1997) (overruling prior precedent whose\\n\\nunsoundness had been “aptly described” by the court of appeals).\\n\\n\\n 49\\n\\n Case: 14-10228 Document: 00515084758 Page: 50 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n I\\n Qualified immunity protects “all but the plainly incompetent or those\\nwho knowingly violate the law.” 5 While this bar is not insurmountable, it is\\nsky-high. And it is raised higher when courts leapfrog prong one (deciding\\nwhether the challenged behavior violates the Constitution) to reach simpler\\nprong two: no factually analogous precedent. Merely proving unconstitutional\\nmisconduct isn’t enough. A plaintiff must cite functionally identical authority\\nthat puts the unlawfulness “beyond debate” to “every” reasonable officer. 6 Last\\nmonth, for example, the Eleventh Circuit, noting no “materially similar case”\\n(thus no “clearly established law”), granted immunity to a police officer who\\nfired at a family’s dog but instead shot a 10-year-old child lying face-down 18\\ninches from the officer. 7 Not only that, the court “expressly [took] no position”\\nas to “whether a constitutional violation occurred in the first place.” 8\\nTranslation: If the same officer tomorrow shoots the same child while aiming\\nat the same dog, he’d receive the same immunity. Ad infinitum.\\n The Supreme Court demands precedential specificity. But it’s all a bit\\nrecursive. There’s no earlier similar case declaring a constitutional violation\\nbecause no earlier plaintiff could find an earlier similar case declaring a\\nconstitutional violation. “Section 1983 meets Catch-22. Plaintiffs must produce\\nprecedent even as fewer courts are producing precedent. Important\\nconstitutional questions go unanswered precisely because no one’s answered\\n\\n\\n\\n\\n 5 District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs,\\n475 U.S. 335, 341 (1986)).\\n 6 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see also, e.g., Kisela v. Hughes, 138 S.\\n\\nCt. 1148, 1153 (2018) (per curiam); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).\\n 7 Corbitt v. Vickers, 929 F.3d 1304, 1307–08 (11th Cir. 2019).\\n 8 Id. at 1323.\\n\\n\\n\\n\\n 50\\n\\n Case: 14-10228 Document: 00515084758 Page: 51 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthem before. Courts then rely on that judicial silence to conclude there’s no\\nequivalent case on the books. No precedent = no clearly established law = no\\nliability. An Escherian Stairwell.” 9\\n II\\n In recent years, individual Justices have raised concerns with the Court’s\\nimmunity caselaw. 10 Even so, the doctrine enjoys resounding, even hardening\\nfavor at the Court. Just three months ago, in a case involving the warrantless\\nstrip search of a four-year-old preschooler, a strange-bedfellows array of\\nscholars and advocacy groups—perhaps the most ideologically diverse amici\\never assembled—implored the Court to push reset. 11 To no avail. This much is\\ncertain: Qualified immunity, whatever its success at achieving its intended\\npolicy goals, thwarts the righting of many constitutional wrongs.\\n Perhaps the growing left–right consensus urging reform will one day win\\nout. There are several “mend it, don’t end it” options. The Court could revisit\\nPearson 12 and nudge courts to address the threshold constitutional merits\\nrather than leave the law undeveloped. 13 Even if a particular plaintiff cannot\\n\\n\\n\\n\\n 9 Zadeh, 928 F.3d at 479–80 (Willett, J., concurring in part, dissenting in part).\\n 10 Four sitting Justices “have authored or joined opinions expressing sympathy” with\\nassorted critiques of qualified immunity. Joanna C. Schwartz, The Case Against Qualified\\nImmunity, 93 NOTRE DAME L. REV. 1797, 1800 (2018) (including Justices Thomas, Ginsburg,\\nBreyer, and Sotomayor, plus recently retired Justice Kennedy); see, e.g., Ziglar v. Abbasi, 137\\nS. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and concurring in the judgment) (“In\\nan appropriate case, we should reconsider our qualified immunity jurisprudence.”); see also\\nKisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (per curiam).\\n 11 Doe v. Woodard, 912 F.3d 1278 (10th Cir. 2019), cert. denied, No. 18-1173, 2019 WL\\n\\n1116409, at *1 (May 20, 2019). As for congressional reform, Congress’s refusal to revisit §\\n1983 suggests Article I acquiescence.\\n 12 555 U.S. at 236.\\n 13 As observers have cautioned, unfettered Pearson discretion contributes to\\n\\n“constitutional stagnation” by impeding the development of precedent. Aaron L. Nielson &\\nChristopher J. Walker, The New Qualified Immunity, 89 S. CAL. L. REV. 1, 23–24 (2015).\\n\\n\\n 51\\n\\n Case: 14-10228 Document: 00515084758 Page: 52 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nbenefit (due to the “clearly established law” prong), this would provide moving-\\nforward guidance as to what the law prescribes and proscribes. Short of that,\\nthe Court could require lower courts to explain why they are side-stepping the\\nconstitutional merits question. 14 Or the Court could confront the widespread\\ninter-circuit confusion on what constitutes “clearly established law.” 15 One\\nconcrete proposal: clarifying the degree of factual similarity required in cases\\ninvolving split-second decisions versus cases involving less-exigent situations.\\nThe Court could also, short of undoing Harlow and reinstating the bad-faith\\nprong, permit plaintiffs to overcome immunity by presenting objective evidence\\nof an official’s bad faith. 16 Not subjective evidence of bad faith, which Harlow,\\nworried about “peculiarly disruptive” and “broad-ranging discovery,” forbids. 17\\nAnd not unadorned allegations of bad faith. But objective evidence that the\\nofficial actually realized that he was violating the Constitution.\\n Prudent refinements abound. But until then, as Judge Jones explains in\\ntoday’s principal dissent, the Supreme Court’s unflinching, increasingly\\nemphatic application of “clearly established law” compels dismissal.\\n III\\n I remain convinced that contemporary immunity jurisprudence merits\\n“a refined procedural approach that more smartly—and fairly—serves its\\n\\n\\n\\n\\n 14 Id. at 7.\\n 15 See, e.g., RICHARD FALLON, JR., ET AL., HART AND WECHSLER’S THE FEDERAL\\nCOURTS AND THE FEDERAL SYSTEM 1047–50 (7th ed. 2015) (noting the difficulties of applying\\nthe clearly-established-law test); Karen M. Blum, Section 1983 Litigation: The Maze, the\\nMud, and the Madness, 23 WM. & MARY BILL RTS. J. 913, 925 n.68 (2015) (“[W]hether a right\\nis found to be ‘clearly established’ is very much a function of which circuit (and I would add,\\nwhich judge) is asking the question, and how that question is framed.”).\\n 16 Harlow v. Fitzgerald prevents plaintiffs from relying on subjective evidence of bad\\n\\nfaith. 457 U.S. 800, 815–16 (1982).\\n 17 Id. at 817.\\n\\n\\n\\n\\n 52\\n\\n Case: 14-10228 Document: 00515084758 Page: 53 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nintended objectives.” 18 Yet I also remain convinced that a majority of the\\nSupreme Court disagrees. My misgivings, I believe, are well advised. But we\\nwould be ill advised to treat the reform of immunity doctrine as something for\\nthis court rather than that Court. 19\\n For these reasons, I respectfully dissent.\\n\\n\\n\\n\\n 18 Zadeh, 928 F.3d at 481 (Willett, J., concurring in part, dissenting in part).\\n 19 As for the sidelong critique of me in the dissenting opinion of Judges Ho and\\nOldham, it is, respectfully, a pyromaniac in a field of straw men. I have not raised originalist\\nconcerns with qualified immunity. My concerns, repeated today, are doctrinal, procedural,\\nand pragmatic in nature. Nor has my unease with modern immunity practice led me to wage\\n“war with the Supreme Court’s qualified-immunity jurisprudence.” I am a fellow dissenter\\ntoday, notwithstanding my unease, precisely because I believe the Court’s precedent compels\\nit. In short, I have not urged that qualified immunity be repealed. I have urged that it be\\nrethought. Justice Thomas—no “halfway originalist”—has done the same. Ziglar, 137 S. Ct.\\nat 1872 (Thomas, J., concurring in part and concurring in the judgment) (“In an appropriate\\ncase, we should reconsider our qualified immunity jurisprudence.”).\\n\\n 53\\n\\n Case: 14-10228 Document: 00515084758 Page: 54 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nJAMES C. HO and ANDREW S. OLDHAM, Circuit Judges, joined by JERRY\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431351/\", \"author_raw\": \"DON R. WILLETT, Circuit Judge, dissenting\"}, {\"author\": \"E. SMITH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"E. SMITH, Circuit Judge, dissenting:\\n\\n Apparently SUMREVs mean nothing.\\n In Luna v. Mullenix, 773 F.3d 712 (5th Cir. 2014), we sent a state trooper\\nto a jury “in defiance” of “the concept and precedents of qualified immunity.”\\n777 F.3d 221, 222 (5th Cir. 2014) (Jolly, J., dissenting from denial of rehearing\\nen banc). The Supreme Court summarily reversed us. Mullenix v. Luna, 136\\nS. Ct. 305 (2015) (per curiam). Then they GVR’d us in this case and ordered\\nus to reconsider our obvious error in light of Mullenix.\\n The en banc majority instead doubles down. That is wrong for all the\\nreasons Judge Jones gives in her powerful dissent, which we join in full. We\\nwrite to emphasize the en banc majority’s unmistakable message: Four years\\nafter Mullenix, nothing has changed in our circuit.\\n I.\\n The Supreme Court has not hesitated to redress similar intransigence\\nfrom our sister circuits—often through the “extraordinary remedy of a\\nsummary reversal.” Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor,\\nJ., dissenting) (quotation omitted). See, e.g., City of Escondido v. Emmons, 139\\nS. Ct. 500 (2019) (per curiam) (summarily reversing the Ninth Circuit); Kisela,\\n138 S. Ct. 1148 (per curiam) (same); District of Columbia v. Wesby, 138 S. Ct.\\n577 (2018) (reversing the D.C. Circuit); White v. Pauly, 137 S. Ct. 548 (2017)\\n(per curiam) (summarily reversing the Tenth Circuit); City and County of San\\nFrancisco v. Sheehan, 135 S. Ct. 1765 (2015) (reversing the Ninth Circuit);\\nCarroll v. Carman, 574 U.S. 13 (2014) (per curiam) (summarily reversing the\\nThird Circuit); Wood v. Moss, 572 U.S. 744 (2014) (reversing the Ninth Circuit);\\nPlumhoff v. Rickard, 572 U.S. 765 (2014) (reversing the Sixth Circuit); Stanton\\nv. Sims, 571 U.S. 3 (2013) (per curiam) (summarily reversing the Ninth\\nCircuit); Reichle v. Howards, 566 U.S. 658 (2012) (reversing the Tenth Circuit);\\n\\n 54\\n\\n Case: 14-10228 Document: 00515084758 Page: 55 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nRyburn v. Huff, 565 U.S. 469 (2012) (per curiam) (summarily reversing the\\nNinth Circuit); Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (same); Brosseau v.\\nHaugen, 543 U.S. 194 (2004) (per curiam) (same).\\n In each of these cases, the Supreme Court reminded lower courts that\\nqualified immunity requires us not only to identify a clearly established rule\\nof law, but to do so with great specificity. Everyone agrees, of course, that Ryan\\nCole has a constitutional right not to be seized unreasonably. But “that is not\\nenough” to subject a police officer to the burdens of our civil litigation system.\\nSaucier v. Katz, 533 U.S. 194, 202 (2001). The Supreme Court has “repeatedly\\ntold courts . . . not to define clearly established law at [that] high level of\\ngenerality.” al-Kidd, 563 U.S. at 742. Rather, “[t]he dispositive question is\\nwhether the violative nature of particular conduct is clearly established.”\\nMullenix, 136 S. Ct. at 308 (citation omitted).\\n Only by identifying a specific and clearly established rule of law do we\\nensure that the officer had “fair notice”—“in light of the specific context of the\\ncase, not as a broad general proposition”—that his or her particular conduct\\nwas unlawful. Brosseau, 543 U.S. at 198 (citation omitted). See also, e.g.,\\nSheehan, 135 S. Ct. at 1776 (“Qualified immunity is no immunity at all if\\n‘clearly established’ law can simply be defined as the right to be free from\\nunreasonable searches and seizures.”); Wilson v. Layne, 526 U.S. 603, 615\\n(1999) (same); Anderson v. Creighton, 483 U.S. 635, 640 (1987) (same).\\n So where is our clearly established law at issue here? Unbelievably, the\\nen banc majority says we don’t need any. That’s so, they say, because “[t]his is\\nan obvious case.” Ante, at 16. That’s obviously wrong for three reasons.\\n First, the Supreme Court to date has never identified an “obvious” case\\nin the excessive force context. And the majority thinks this is the first? A case\\nwhere a mentally disturbed teenager—who has a loaded gun in his hand with\\n\\n\\n 55\\n\\n Case: 14-10228 Document: 00515084758 Page: 56 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhis finger on the trigger; who has repeatedly refused to be disarmed; who has\\nthreatened to kill anyone who tries to disarm him; who poses such a deadly\\nthreat that police have been deployed to protect innocent students and teachers\\nat his nearby high school—turns toward the officers just ten to twenty feet\\naway, giving them only seconds to decide what to do in response. Really?\\n Second, the Supreme Court has granted qualified immunity in much\\ntougher cases than this one. In Plumhoff, for example, officers fired 15 shots\\nand killed two unarmed men who fled a traffic stop. In Brosseau, an officer\\nshot an unarmed man who refused to open his truck window. In Kisela, officers\\nshot a woman who was hacking a tree with a kitchen knife. In Sheehan,\\nofficers shot an old woman holding a kitchen knife in an assisted-living facility.\\nIn all of these cases, the Court held the officers were entitled to qualified\\nimmunity.\\n Third, this is Mullenix all over again. There our court relied on clearly\\nestablished law as articulated in Tennessee v. Garner, 471 U.S. 1 (1985).\\nGarner involved an unarmed man who fled from police after stealing $10. An\\nofficer fatally shot Garner in the back of the head as he attempted to climb a\\nfence. Our court then extended Garner to Mullenix’s case—which involved a\\nman who led police on a high-speed car chase after violating his probation. A\\nstate trooper attempted to end the chase by shooting the speeding car’s engine\\nblock—but he missed the engine, hit the driver in the face, and killed him. See\\nLuna, 773 F.3d at 719–20 (discussing Garner). The Supreme Court summarily\\nreversed us because—as should be painfully obvious from the Court’s serial\\nreversals in this area—that’s not how qualified immunity works. See Mullenix,\\n136 S. Ct. at 308–09 (holding our court erred in our extrapolation of Garner to\\n\\n\\n\\n\\n 56\\n\\n Case: 14-10228 Document: 00515084758 Page: 57 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nnew facts). And they GVR’d us in this very case to fix our mistakes in light of\\nMullenix. The Supreme Court’s message could not be clearer. 1\\n Still, somehow, today’s majority does not get it. Here, as in Mullenix, the\\nmajority attempts to rely on Garner to establish the governing rule of law.\\nFrom Garner, the majority somehow divines a rule that an officer cannot shoot\\na mentally disturbed teenager holding a gun near his school. This is\\ndemonstrably erroneous. In fact, one thing that unites the Supreme Court’s\\nrecent reversals in cases involving qualified immunity and excessive force is\\nthe attempt by lower courts to extrapolate Garner to new facts. See Mullenix,\\n136 S. Ct. at 308–09; Scott v. Harris, 550 U.S. 372, 381–82 (2007) (same); Allen\\nv. City of West Memphis, 509 F. App’x 388, 392 (6th Cir. 2012) (extrapolating\\nGarner), rev’d by Plumhoff, supra.\\n Moreover, there are additional parallels between Mullenix and this case.\\nConsider the supposed requirement that an officer take some sort of non-lethal\\nmeasure before using lethal force. In Mullenix, our court used the power of 20-\\n20 hindsight to say that a reasonable officer should have used spike strips to\\n\\n\\n\\n\\n 1 The Supreme Court issues GVRs when, as here, legal error infects the judgment\\nbelow. See, e.g., Hicks v. United States, 137 S. Ct. 2000, 2000–01 (2017) (Gorsuch, J.,\\nconcurring) (defending GVR because “[a] plain legal error infects this judgment” and because\\npetitioner “enjoys a reasonable probability of success” in getting judgment reversed on the\\nmerits); id. at 2002 (Roberts, C.J., dissenting) (“[W]ithout a determination from this Court\\nthat the judgment below was wrong or at least a concession from the Government to that\\neffect, we should not, in my view, vacate the Fifth Circuit’s judgment.”). As the cert petition\\nexplained, our panel denied qualified immunity “based on the same rationale” on “which this\\nCourt reversed in Mullenix.” Pet. at i, 2016 WL 4987324. We think it obvious the Supreme\\nCourt GVR’d because it agreed. And tellingly, the majority does not offer an alternative\\ntheory to explain the GVR. We ignore the Court’s message at our peril. See, e.g., Smith v.\\nMitchell, 437 F.3d 884 (9th Cir. 2006) (granting habeas relief to a state prisoner because the\\nevidence was insufficient to prove she shook her grandbaby to death); Patrick v. Smith, 550\\nU.S. 915 (2007) (GVR’ing i/l/o Carey v. Musladin, 549 U.S. 70 (2006)); Smith v. Patrick, 519\\nF.3d 900 (9th Cir. 2008) (again granting habeas relief); Patrick v. Smith, 558 U.S. 1143 (2010)\\n(GVR’ing i/l/o McDaniel v. Brown, 558 U.S. 120 (2010)); Smith v. Mitchell, 624 F.3d 1235 (9th\\nCir. 2010) (again granting habeas relief); Cavazos v. Smith, 565 U.S. 1 (2011) (SUMREV’ing).\\n\\n 57\\n\\n Case: 14-10228 Document: 00515084758 Page: 58 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nstop the chase. See 773 F.3d at 720–21. The Supreme Court emphatically\\nrebuked us. See 136 S. Ct. at 310. They told us that an officer does not have\\nto expose himself or other officers to harm when the suspect has already\\nrefused to be disarmed. That meant Trooper Mullenix did not have to wait to\\nsee if the fleeing felon would shoot or run over the officer manning the spike\\nstrips. See id. at 310–11.\\n So too here. In this case, the majority complains that the officers did not\\nprovide sufficient warning. But there was no clearly established law requiring\\nOfficers Cassidy and Hunter to announce themselves—while caught in an open\\nand defenseless position—and hope not to get shot. That is particularly true\\nhere because officers previously ordered Cole to put down his gun, he refused,\\nand he threatened to kill anyone who attempted to disarm him.\\n And in Mullenix, as here, we accused the police officers of being cowboys.\\nEarlier on the day of the shooting, Trooper Mullenix received a negative\\nperformance review for “not being proactive enough as a Trooper”; so in the\\naftermath of the shooting, Mullenix said to his supervisor, “How’s that for\\nproactive?” 773 F.3d at 717; see also 136 S. Ct. at 316 (Sotomayor, J.,\\ndissenting). The panel opinions and en banc majority opinion in this case\\nlikewise seethe with innuendo that Officers Hunter and Cassidy were wannabe\\ncowboys looking for a gunfight. We are in no position to make such accusations.\\nNo member of this court has stared down a fleeing felon on the interstate or\\nconfronted a mentally disturbed teenager who is brandishing a loaded gun\\nnear his school. And the Mullenix Court held that the qualified-immunity\\nstandard gives us no basis for sneering at cops on the beat from the safety of\\nour chambers. See 136 S. Ct. at 310–11 (majority op.) (citing Brief for National\\nAssociation of Police Organizations et al. as Amici Curiae). Yet here we are.\\nAgain.\\n\\n\\n 58\\n\\n Case: 14-10228 Document: 00515084758 Page: 59 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II.\\n The majority cannot dodge responsibility for today’s decision by pointing\\nto the limits of appellate jurisdiction. See ante, at 13–14 (majority op.); ante,\\nat 1 (Elrod, J., concurring). We obviously lack interlocutory appellate\\njurisdiction to review the genuineness of an officer’s fact dispute. See, e.g.,\\nJohnson v. Jones, 515 U.S. 304, 313–14 (1995); Kinney v. Weaver, 367 F.3d 337,\\n346–47 (5th Cir. 2004) (en banc) (applying Johnson v. Jones).\\n But that does nothing to defeat jurisdiction where, as here, the factual\\ndisputes are immaterial. That is why the Supreme Court repeatedly has\\nrejected such no-jurisdiction pleas from those who wish to deny qualified\\nimmunity. See, e.g., Plumhoff, 572 U.S. at 771–73; id. at 773 (noting existence\\nof genuine fact dispute did not defeat appellate jurisdiction in Scott v. Harris).\\n All the fact disputes in the world do nothing to insulate this legal\\nquestion: Is this an “obvious case” under Garner—notwithstanding a\\nmountain of SUMREVs, GVRs, and pointed admonitions from the Supreme\\nCourt? The majority says yes. Ante, at 16. They obviously must have\\njurisdiction to say so. With respect, it makes no sense to say we lack\\njurisdiction to disagree with them.\\n III.\\n What explains our circuit’s war with the Supreme Court’s qualified-\\nimmunity jurisprudence? Two themes appear to be at play.\\n First, the majority suggests we should be less than enthused about\\nSupreme Court precedent in this area, because it conflicts with plaintiffs’ jury\\nrights. To quote the panel: “Qualified immunity is a judicially created doctrine\\ncalculated to protect an officer from trial before a jury of his or her peers. At\\nbottom lies a perception that the jury brings a risk and cost that law-\\nenforcement officers should not face, that judges are preferred for the task—a\\n\\n\\n 59\\n\\n Case: 14-10228 Document: 00515084758 Page: 60 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment made by appellate judges.” Cole v. Carson, 905 F.3d 334, 336 (5th\\nCir. 2018). Or in the words of today’s majority: “The Supreme Court over\\nseveral years has developed protection from civil liability for persons going\\nabout their tasks as government workers” (a rather curious way to describe the\\nmen and women who swear an oath to protect our lives and communities).\\nAnte, at 2. But “the worker’s defense” must yield, in cases like this, “in\\nobeisance to [the] constitutional mandate” of a jury trial. Id.\\n We appreciate the majority’s candor. But inferior court judges may not\\nprefer juries to the Justices.\\n Second, some have criticized the doctrine of qualified immunity as\\nahistorical and contrary to the Founders’ Constitution. Ante at 2 (suggesting\\ndenial of qualified immunity is commanded by “the Founders”); compare\\nWilliam Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45, 49–\\n61 (2018), with Aaron L. Nielson & Christopher J. Walker, A Qualified Defense\\nof Qualified Immunity, 93 NOTRE DAME L. REV. 1853, 1856–63 (2018); see also\\nZadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring\\ndubitante), revised on petition for reh’g en banc, 928 F.3d 457, 473 (5th Cir.\\n2019) (Willett, J., concurring in part and dissenting in part).\\n As originalists, we welcome the discussion. But separate and apart from\\nthe fact that we are bound as a lower court to follow Supreme Court precedent,\\na principled commitment to originalism provides no basis for subjecting these\\nofficers to trial.\\n The originalist debate over qualified immunity may seem fashionable to\\nsome today. But it is in fact an old debate. Over two decades ago, Justices\\nScalia and Thomas noted originalist concerns with qualified immunity. But\\nthey also explained how a principled originalist would re-evaluate established\\n\\n\\n\\n\\n 60\\n\\n Case: 14-10228 Document: 00515084758 Page: 61 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ndoctrines. See Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998) (Scalia, J.,\\njoined by Thomas, J., dissenting).\\n A principled originalist would not cherry pick which rules to revisit based\\non popular whim. A principled originalist would fairly review decisions that\\nfavor plaintiffs as well as police officers. As Justice Scalia explained in a\\ndissent joined by Justice Thomas, a principled originalist would evenhandedly\\nexamine disputed precedents that expand, as well as limit, § 1983 liability:\\n [O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has\\n not purported to be faithful to the common-law immunities that\\n existed when § 1983 was enacted . . . . [But] [t]he § 1983 that the\\n Court created in 1961 bears scant resemblance to what Congress\\n enacted almost a century earlier. I refer, of course, to the holding\\n of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871\\n statute covering constitutional violations committed “under color\\n of any statute, ordinance, regulation, custom, or usage of any\\n State,” Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into\\n a statute covering constitutional violations committed without the\\n authority of any statute, ordinance, regulation, custom, or usage\\n of any State, and indeed even constitutional violations committed\\n in stark violation of state civil or criminal law.\\n\\n\\nId. at 611.\\n Justices Scalia and Thomas ultimately concluded that it is better to leave\\nthings alone than to reconfigure established law in a one-sided manner. If\\nwe’re not willing to re-evaluate all § 1983 precedents in a balanced and\\nprincipled way, then it “is perhaps just as well” that “[w]e find ourselves\\nengaged . . . in the essentially legislative activity of crafting a sensible scheme\\nof qualified immunities for the statute we have invented—rather than\\napplying the common law embodied in the statute that Congress wrote.” Id.\\nat 611–12.\\n Translation: If we’re not going to do it right, then perhaps we shouldn’t\\ndo it at all.\\n\\n 61\\n\\n Case: 14-10228 Document: 00515084758 Page: 62 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Subjecting these officers to trial on originalist grounds is precisely the\\nunprincipled practice of originalism that Justices Scalia and Thomas railed\\nagainst. And not just for the procedural reasons they identified in Crawford-\\nEl. What about the original understanding of the Fourth Amendment, which\\nthe plaintiffs here invoke as their purported substantive theory of liability in\\nthis case? Does the majority seriously believe that it is an “unreasonable\\nseizure,” as those words were originally understood at the Founding, for a police\\nofficer to stop an armed and mentally unstable teenager from shooting\\ninnocent officers, students, and teachers?\\n And make no mistake: Principled originalism is not just a matter of\\nintellectual precision and purity. There are profound practical consequences\\nhere as well, given the important and delicate balance that qualified immunity\\nis supposed to strike. As the Supreme Court has explained, qualified immunity\\nensures that liability reaches only “the plainly incompetent or those who\\nknowingly violate the law.” Mullenix, 136 S. Ct. at 308 (quotation omitted).\\nAnd absent plain incompetence or intentional violations, qualified immunity\\nmust attach, because the “social costs” of any other rule are too high:\\n [I]t cannot be disputed seriously that claims frequently run\\n against the innocent as well as the guilty—at a cost not only to the\\n defendant officials, but to society as a whole. These social costs\\n include the expenses of litigation, the diversion of official energy\\n from pressing public issues, and the deterrence of able citizens\\n from acceptance of public office. Finally, there is the danger that\\n fear of being sued will dampen the ardor of all but the most\\n resolute, or the most irresponsible public officials, in the\\n unflinching discharge of their duties.\\n\\nHarlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (alterations and quotations\\nomitted); see also, e.g., Sheehan, 135 S. Ct. at 1774 n.3 (noting “the importance\\nof qualified immunity to society as a whole”).\\n\\n\\n\\n 62\\n\\n Case: 14-10228 Document: 00515084758 Page: 63 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n For those who have expressed concerns about a “one-sided approach to\\nqualified immunity,” Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting); see\\nalso Zadeh, 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting\\nKisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)); 928 F.3d at 480 & n.61\\n(Willett, J., concurring in part and dissenting in part) (same), look no further\\nthan the majority opinion. The majority undoes the careful balance of interests\\nembodied in our doctrine of qualified immunity, stripping the officers’ defenses\\nwithout regard to the attendant social costs. 2\\n Now that is a one-sided approach to qualified immunity as a practical\\nmatter. And as Justices Scalia and Thomas have observed, it’s also a one-sided\\napproach to qualified immunity as an originalist matter: It abandons the\\ndefense without also reconsidering the source and scope of officers’ liability in\\nthe first place. See Crawford-El, 523 U.S. at 611–12 (Scalia, J., joined by\\nThomas, J., dissenting). To quote Justice Alito: “We will not engage in this\\nhalfway originalism.” Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,\\nCouncil 31, 138 S. Ct. 2448, 2470 (2018). See also id. (criticizing litigants for\\n“apply[ing] the Constitution’s supposed original meaning only when it suits\\nthem”); Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J.,\\n\\n\\n\\n\\n 2Those social costs are particularly stark today given widespread news of low officer\\nmorale and shortages in officer recruitment. See, e.g., Ashley Southall, When Officers Are\\nBeing Doused, Has Police Restraint Gone Too Far?, N.Y. TIMES, July 25, 2019, at A22; Martin\\nKaste & Lori Mack, Shortage of Officers Fuels Police Recruiting Crisis, NPR (Dec. 11, 2018,\\n5:05 AM), https://n.pr/2Qrbrnq; Jeremy Gorner, Morale, Policing Suffering in Hostile\\nClimate, Cops Say; ‘It’s Almost Like We’re the Bad Guys,’ Veteran City Officer Says, CHI. TRIB.,\\nNov. 27, 2016, at 1.\\n\\n\\n 63\\n\\n Case: 14-10228 Document: 00515084758 Page: 64 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nconcurring in the judgment) (“[I]t would be freakish to single out the provision\\nat issue here for special treatment.”). 3\\n ***\\n Our circuit, like too many others, has been summarily reversed for\\nignoring the Supreme Court’s repeated admonitions regarding qualified\\nimmunity. There’s no excuse for ignoring the Supreme Court again today. And\\ncertainly none based on a principled commitment to originalism.\\n Originalism for plaintiffs, but not for police officers, is not principled\\njudging. Originalism for me, but not for thee, is not originalism at all. We\\nrespectfully dissent.\\n\\n\\n\\n\\n 3 In a footnote, Judge Willett notes that his criticism of the Supreme Court’s qualified\\nimmunity precedents is not based on originalist grounds. Ante, at 4 n.19. To our minds, that\\nmakes his criticism harder, not easier, to defend. If his concerns are based on practical and\\nnot originalist considerations, then he should address them to the Legislature, rather than\\nattack the Supreme Court as “one-sided.” Zadeh, 902 F.3d at 499 & n.10 (Willett, J.,\\nconcurring dubitante) (quoting Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)). He\\nalso invokes Justice Thomas’s opinion in Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017). But\\nthat opinion cites Justice Scalia’s opinion in Crawford-El, which (as we explained above)\\nwarns qualified immunity skeptics not to engage in halfway originalism.\\n\\n 64\\n\\n Case: 14-10228 Document: 00515084758 Page: 65 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nSTUART KYLE DUNCAN, Circuit Judge, joined by SMITH, OWEN, HO, and\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431351/\", \"author_raw\": \"E. SMITH, Circuit Judge, dissenting\"}, {\"author\": \"OLDHAM, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"OLDHAM, Circuit Judges, dissenting:\\n\\n The majority opinion overlooks or omits undisputed material facts\\nshowing that any reasonable officer would have viewed Ryan Cole as a severe\\nthreat. Before the shooting, the defendant officers: (1) were tracking a\\ndistraught suspect wandering through the woods armed with a loaded 9mm\\nsemi-automatic handgun; (2) who had earlier that morning off-loaded a cache\\nof weapons and ammunition at a friend’s house; (3) who had already refused to\\ngive up his pistol when confronted by the police; and (4) who had threatened to\\n“shoot anyone who came near him.” Cole did not dispute those facts and,\\nindeed, convinced the district court they were irrelevant. Joining Judge Jones’\\ndissent in full, I respectfully dissent on the additional grounds provided by\\nthese pre-encounter facts.\\n No one doubts some of the events on October 25, 2010—when the officers\\nviolently encountered Cole in the woods near Garland, Texas—are disputed.\\nThe question is whether those disputes are material. See, e.g., Bazan ex rel.\\nBazan v. Hidalgo Cty., 246 F.3d 481, 483 (5th Cir. 2001) (“threshold issue” on\\nqualified immunity appeal “is whether the facts the district judge concluded\\nare genuinely disputed are also material”). Judge Jones’ dissent compellingly\\nshows they are not: Resolving all disputes in Cole’s favor, the undisputed facts\\nstill show the officers violated no clearly established law. Jones Dissent at 2–\\n3, 11–22. The majority thus errs by concluding that “competing factual\\nnarratives” bar it from deciding qualified immunity. Maj. at 3.\\n I write separately to emphasize what led up to the shooting, and also to\\nexplain why those undisputed events provide further reasons to reverse. The\\nmajority and Judge Jones focus on the shooting itself, as did the district court.\\nBut the prelude to the shooting gives unavoidable context for evaluating the\\n\\n\\n\\n 65\\n\\n Case: 14-10228 Document: 00515084758 Page: 66 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nofficers’ actions. 1 Surprisingly, the district court did not even analyze those\\nstage-setting facts, which it mistakenly deemed irrelevant. See Cole v. Hunter,\\nNo. 3:13-CV-02719-O, 2014 WL 266501, at *13 n.5 (N.D. Tex. Jan. 24, 2014);\\nCole v. Hunter, 68 F. Supp. 3d 628, 642–43 (N.D. Tex. 2014). So, to assess their\\nimpact, we must “undertake a cumbersome review of the record.” Johnson v.\\nJones, 515 U.S. 304, 319 (1995). That extra work is sometimes imperative, as\\nhere, “to ensure that the defendant’s right to an immediate appeal on the issue\\nof materiality is not defeated solely on account of the district court’s failure to\\narticulate its reasons for denying summary judgment.” Colston v. Barnhart,\\n146 F.3d 282, 285 (5th Cir. 1998), denying reh’g in 130 F.3d 96 (5th Cir. 1997).\\n This detailed record review (see Part I) compels two conclusions (see Part\\nII). First, the district court erred by excluding the undisputed events before the\\nshooting. That error—based on a misreading of our precedent—truncated the\\nqualified immunity analysis. That alone requires reversing the summary\\njudgment denial. Second, in light of those pre-encounter facts, the majority’s\\ninsistence that this is an “obvious case” collapses. Maj. at 16. Given what\\nconfronted the officers, the majority cannot say what they did was “obviously”\\nunlawful. The only thing obvious is that no case told the officers, clearly or\\notherwise, how to respond when they met Cole that morning, emerging from\\nthe woods with his finger on the trigger of a loaded gun.\\n By denying qualified immunity and making the officers run the gauntlet\\nof trial, the majority sets a precedent that “seriously undermines officers’\\nability to trust their judgment during those split seconds when they must\\n\\n\\n\\n\\n 1See, e.g., Kingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015) (courts “must judge\\nthe reasonableness of the force used from the perspective and with the knowledge of the\\ndefendant officer”); Tennessee v. Garner, 471 U.S. 1, 9 (1985) (whether a “particular” seizure\\nwas justified depends on “the totality of the circumstances”).\\n\\n 66\\n\\n Case: 14-10228 Document: 00515084758 Page: 67 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ndecide whether to use lethal force.” Winzer v. Kaufman Cty., 916 F.3d 464, 482\\n(5th Cir. 2019) (Clement, J., dissenting).\\n I.\\n The majority begins “around 10:30 a.m.,” less than an hour before the\\nshooting. Maj. at 4. But events began to unfold much earlier. 2 Around 2 a.m.\\nthat morning, Cole knocked on the door of his friend, Eric Reed Jr., to show\\nhim “a 44 magnum revolver.” Awakened by the knocking, Eric Jr.’s father (Eric\\nSr.) left his room, saw Cole with the gun, and told him to leave. Eric Jr.\\nconvinced Cole to leave the revolver because “he [did not] need to be carrying\\na weapon around.”\\n Around 8 a.m., Eric Jr. gave his father Cole’s gun. Eric Sr., a retired\\nSachse police officer, then notified Officer Vernon Doggett, who came to the\\nReeds’. Eric Jr. told his father and Doggett that “[Cole] told him there were\\nmore guns on the side of the house.” There, they found “a double barrel shot\\ngun with some shot gun shells and what appeared to be a plastic bag with 9mm\\nbullets,” which Doggett secured. Eric Jr. also explained Cole “had broken up\\nwith his girlfriend and was going to kill himself and his girlfriend.”\\n Doggett was a resource officer for Sachse High School, where Cole and\\nhis girlfriend attended. He contacted Sergeant Garry Jordan, told him about\\nthe guns, and asked to meet at the school. Doggett reported that Cole “may be\\nat school with a 9mm handgun.” Another officer checked whether Cole was in\\nclass, and Jordan searched the parking areas for Cole.\\n\\n\\n\\n\\n 2 All of these facts come from reports and transcriptions of radio transmissions made\\nwithin a day or two of the incident. None come from affidavits submitted by the officers years\\nlater. And, as explained below, none of these pre-encounter facts was disputed by Cole or\\nanalyzed by the district court.\\n\\n\\n 67\\n\\n Case: 14-10228 Document: 00515084758 Page: 68 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Not finding him, Jordan went to Coles’ and spoke to his parents. He\\nlearned that, the previous evening, officers had responded to a disturbance\\nthere. Officers had found Cole’s father “holding Ryan down” because “he did\\nnot want [Cole] to leave the residence with the pocket knife that he had.” He\\nsaid “his son had a wild look in his eye and . . . had been smoking K2.” While\\nthe officers found there had been no assault, all agreed it was “a good idea for\\nCole to stay the night with a friend.” The Coles had not seen Ryan since then\\nbut reported he had “apparently returned home during the night and had\\nopened the gun safe, removed an unknown amount [sic] of weapons, and reset\\nthe combination.”\\n Meanwhile, Eric Jr. noticed Cole was back. He asked Cole if he was\\narmed and Cole showed him a “38 revolver” and a “9mm semiauto.” He\\nconvinced Cole to give him the revolver, but Cole told him he was not “getting\\nthe 9mm.” Cole also said that the 9mm was loaded and that he did not “wanna\\nuse it on [Eric Jr.]” Cole stated that “he would shoot anyone who came near\\nhim.” Cole left, and Eric Jr. called his father, who called the police.\\n Around 10:49 a.m., Officer Stephen Norris radioed “all available Sachse\\nofficers” to respond to the area of the Reed residence. He reported Cole was\\n“observed running south of the location with 3 weapons, one a loaded 9mm.”\\nHe also reported Cole was “irate and distraught and stated he would shoot\\nanyone who came near him.” Around the same time, Sachse Officer Michael\\nHunter was dispatched to assist Jordan at the Coles’, but on arrival he was\\ntold by Sachse Officer Carl Carson he was not needed. As Hunter was leaving,\\nhe heard Norris’ call advising Cole was “in the area . . . with a gun.” Hunter\\n\\n\\n\\n\\n 68\\n\\n Case: 14-10228 Document: 00515084758 Page: 69 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nstated he “did not know the specifics of the call at this point,” but proceeded to\\nthe Reeds’ residence. In response to Norris’ call, Jordan also left the Coles’.\\n Sachse Officer Martin Cassidy also received Norris’ dispatch and went\\nto the area Norris indicated. He was given Cole’s description and advised that\\nCole was “armed with at least one handgun and possibly three.” Cassidy spoke\\nwith Norris on the phone about “the proximity of Armstrong Elementary\\nSchool to the location where [Cole] was last seen.” Cassidy therefore went to\\ncheck on the school and a nearby shopping center for any signs of Cole.\\n Meanwhile, Hunter arrived at the Reeds’, where he met Jordan and\\nCarson. Hunter overheard Eric Jr. say he had gotten “one gun” from Cole but\\nthat Cole had left “armed with a 9mm handgun.” “Hunter put [Cole’s]\\ndescription out to other officers,” and then he and Carson went to search for\\nCole. After speaking with the officers, Eric Jr. checked for more guns and found\\n“6 firearms around [his] house.”\\n Jordan then observed Officers Elliott and Sneed pass by in a patrol unit.\\nThose officers found Cole nearby. Elliott reported that “Sneed . . . advised\\n[Cole] to show his hands.” Instead, Cole “reached into his waist band and pulled\\na pistol and placed it to his head after about three steps and refused to obey\\nLt. Sneed[’s] commands.” When Jordan arrived, Sneed “drew his duty weapon\\nand yelled at [Cole] to drop the weapon,” but Cole refused. As Cole continued\\neastbound towards Highway 78, Sneed “warned [Cole] that [he] would shoot\\nhim in the back if he tried to get to the highway or walk toward any innocent\\nbystanders.” Cole “would occasionally turn his head and yell obscenities at\\n[Sneed].” Two other officers then parked “directly in front of [Cole’s] path.” To\\navoid them, Cole turned “northbound and began walking the railroad tracks.”\\nJordan was constantly updating dispatch about Cole’s movements. “Suddenly,\\n[Sneed] observed [Cole] cut eastbound and run up a hill and into the brush\\n\\n\\n 69\\n\\n Case: 14-10228 Document: 00515084758 Page: 70 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ntowards Highway 78.” Dispatch reported that Cole was “off tracks coming\\nthrough tree lines towards [Highway] 78.”\\n Hunter, Carson, and Cassidy were monitoring Cole’s movements from\\nthe dispatches. They arrived separately at the part of Highway 78 where Cole\\nwas thought to be. Hunter noted “[Cole] appeared to be walking towards the\\nrailroad track,” and he advised Carson “[they] needed to go out to the highway\\nand intercept [him].” Cassidy advised Carson to get out his taser and follow\\nCassidy. Hunter “parked further south on Highway 78 as [he] figured [Cole]\\nwould be on the railroad track paralleling Highway 78 at about [his] location.”\\nHe guessed correctly. As Hunter “began to look for cover since [he] was out in\\nthe open,” Cole “walked out from the brush approximately 10 to 20 feet from\\n[Hunter].”\\n What followed was the shooting.\\n II.\\n Cole did not dispute these stage-setting events in opposing summary\\njudgment. To the contrary, he argued any “prior events” before the shooting\\nwere “irrelevant.” The district court agreed, excluding from its qualified\\nimmunity analysis the “events” from “earlier that morning,” Cole, 2014 WL\\n266501, at *13 n.5, and focusing solely on what happened “immediately before\\nand during the shooting.” Cole, 68 F. Supp. 3d at 644. That mistake skewed\\nthe district court’s analysis and provides yet another reason why we should\\nreverse.\\n First, the district court erred by excluding everything that happened\\nbefore the officers’ five-second encounter with Cole. That approach artificially\\ntruncates the qualified immunity analysis. In assessing qualified immunity,\\nwe “[c]onsider[ ] the specific situation confronting [officers],” City & Cty. of San\\nFrancisco v. Sheehan, 135 S. Ct. 1765, 1778 (2015), which “must be judged from\\n\\n\\n 70\\n\\n Case: 14-10228 Document: 00515084758 Page: 71 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthe perspective of a reasonable officer on the scene[.]” Graham v. Connor, 490\\nU.S. 386, 396 (1989). A “reasonable officer” does not shape his decisions based\\nonly on the seconds when he confronts an armed suspect; instead, he acts based\\non all relevant circumstances, including the events leading up to the ultimate\\nencounter. See, e.g., Escobar v. Montee, 895 F.3d 387 (5th Cir. 2018) (courts\\nevaluate excessive force claims “from the perspective of a reasonable officer on\\nthe scene, paying ‘careful attention to the facts and circumstances of each\\nparticular case’”) (quoting Graham, 490 U.S. at 396). That is precisely how the\\nSupreme Court has instructed lower courts to assess whether force is\\nexcessive: The seminal case, Tennessee v. Garner, asks whether a seizure was\\njustified, based not only on the immediate seizure, but on “the totality of the\\ncircumstances” facing the officers. 471 U.S. 1, 9 (1985). And qualified immunity\\ncases, both from the Supreme Court and our court, routinely consider the\\nbackground facts that shaped an officer’s confrontation with a suspect in order\\nto evaluate the officer’s ultimate use of force. 3\\n The district court’s sole contrary authority was our statement in\\nRockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011), that the excessive force\\ninquiry “is confined to whether the [officer or another person] was in danger at\\nthe moment of the threat.” But the district court overread Rockwell. We made\\nthat statement in Rockwell to reject the notion that officers’ negligence before\\n\\n\\n\\n\\n 3 See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 306 (2015) (assessing officer’s shooting of\\nsuspect during car chase beginning with events preceding the “18-minute chase”); Plumhoff\\nv. Rickard, 572 U.S. 765, 768–70 (2014) (assessing officer’s shooting of suspects in Memphis,\\nTennessee after lengthy car chase beginning with traffic stop in “West Memphis, Arkansas”);\\nBrosseau v. Haugen, 543 U.S. 194, 195 (2004) (evaluating officer’s shooting of fleeing suspect\\nbeginning with events “[o]n the day before the fracas”); Colston, 130 F.3d at 100 (determining\\nofficer’s failure to warn was not objectively unreasonable “[i]n light of the totality of the\\ncircumstances facing [the officer]”) (citing Garner, 471 U.S. at 10).\\n\\n\\n 71\\n\\n Case: 14-10228 Document: 00515084758 Page: 72 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\na confrontation determines whether they properly used deadly force during the\\nconfrontation. See id. at 992–93 (rejecting argument that “circumstances\\nsurrounding a forced entry” bear on “the reasonableness of the officers’ use of\\ndeadly force”). The cases Rockwell cited say that plainly. See, e.g., Fraire v. City\\nof Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (“[R]egardless of what had\\ntranspired up until the shooting itself, [the suspect’s] movements gave the\\nofficer reason to believe, at that moment, that there was a threat of physical\\nharm.”). 4 And the key case Rockwell quoted for the “moment-of-the-threat”\\npoint recognized that pre-confrontation events could “set the stage for what\\nfollowed in the field.” Bazan, 246 F.3d at 493.\\n By misreading our cases, the district court blinded itself to a rich vein of\\nfacts—facts Cole did not dispute below—that round out the picture of the\\nofficers’ violent encounter with Cole. At a minimum, that error alone requires\\nreversing the denial of summary judgment and remanding for reconsideration\\nof the officers’ actions in light of all relevant undisputed facts. See, e.g., White\\nv. Balderama, 153 F.3d 237, 242 (5th Cir. 1998) (concluding “limited remand”\\nwas appropriate given “lack of specificity in . . . district court’s order denying\\nsummary judgment on the basis of qualified immunity”).\\n Second, the undisputed pre-encounter events underscore why, contrary\\nto the majority’s view, this is far from an “obvious case.” Maj. at 16. An “obvious\\ncase,” the Supreme Court has explained, is one where an officer’s actions are\\n\\n\\n\\n\\n 4 Our cases continue to apply the Rockwell “moment-of-the-threat” principle in this\\nway. See, e.g., Shepherd v. City of Shreveport, 920 F.3d 278 (5th Cir. 2019) (explaining that,\\nbecause the excessive force inquiry is “confined to whether the officer was in danger at the\\nmoment of the threat[,] . . . [t]herefore, any of the officers’ actions leading up to the shooting\\nare not relevant”) (emphasis added) (internal quotes and citation omitted); Harris v. Serpas,\\n745 F.3d 767, 772–73 (5th Cir. 2014) (same) (discussing Rockwell).\\n\\n\\n 72\\n\\n Case: 14-10228 Document: 00515084758 Page: 73 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nplainly unlawful under a generalized legal test, even if those actions do not\\ncontravene a “body of relevant case law.” Brosseau, 543 U.S. at 199 (citing Hope\\nv. Pelzer, 536 U.S. 730, 738 (2002)); see also, e.g., White v. Pauly, 137 S. Ct. 548,\\n552 (2017) (an “obvious case” means that “in the light of pre-existing law the\\nunlawfulness [of the officer’s actions] must be apparent”) (citing Anderson v.\\nCreighton, 483 U.S. 635, 640 (1987)) (cleaned up). As I understand the majority\\nopinion, it believes this is an obvious case because a jury could find that\\n(1) Cole “posed no threat” to the officers; (2) the officers fired “without\\nwarning”; and (3) the officers had “time and opportunity” to warn Cole, but did\\nnot. Maj. at 15. According to the majority, this scenario would plainly violate\\nGarner’s generalized test that an officer may not use deadly force to apprehend\\na suspect who “poses no immediate threat to the officer,” unless he warns the\\nsuspect “where feasible.” Id. (quoting Garner, 471 U.S. at 11–12).\\n Judge Jones’ dissent shows that, even resolving all disputed facts in\\nCole’s favor, the officers did not “obviously” violate Garner’s generalized test\\nduring the immediate shooting—that is, when in the space of five seconds at\\nmost, the officers met Cole at a distance of 10–20 feet as he backed out of the\\nwoods, still armed, and began to turn. Jones Dissent at 11–12. But if we include\\nthe undisputed facts leading up to the shooting, the notion that this is an\\n“obvious case” crumbles. To believe that, we would have to blind ourselves to\\nthe facts that (1) the officers were searching for an irate, distraught suspect;\\n(2) who was wandering through the woods armed with a loaded semi-automatic\\nhandgun; (3) who had refused police demands to turn over his weapon; (4) who\\nhad just that morning deposited a cache of weapons and ammunition at his\\nfriend’s house; and (5) who had threatened to “shoot anyone who came near\\nhim.” Those were the “totality of the circumstances” facing the officers, Colston,\\n130 F.3d at 100, and they were not disputed by Cole or the district court. Given\\n\\n\\n 73\\n\\n Case: 14-10228 Document: 00515084758 Page: 74 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthose circumstances, the officers might have taken any number of actions when\\nthey met Cole in the woods that morning—they might have warned him, or\\nshot him, or shot in the air, or retreated, or remained frozen in place to see\\nwhat he would do. But to say it is “obvious” what they should have done is to\\ndenude the concept of an “obvious case” of any meaning.\\n Once stripped of the conceit that this is an “obvious case,” the majority\\nhas nothing left to justify its holding. The Supreme Court has bluntly told us\\nthat, outside the “obvious case” scenario, “Garner . . . do[es] not by [itself]\\ncreate clearly established law[.]” White v. Pauly, 137 S. Ct. at 552. And, of\\ncourse, the majority does not try to claim that the facts of Garner are anything\\nlike this case. In Garner, a police officer shot a fleeing, unarmed burglar in the\\nback of the head. The officer admitted he did not even suspect the burglar was\\narmed. See 471 U.S. at 3 (noting the officer “saw no sign of a weapon” at the\\ntime he shot and, afterwards, admitted “[he] was ‘reasonably sure’ and ‘figured’\\nthat [the suspect] was unarmed”). Apples and oranges does not capture the\\nchasm between that case and this one.\\n The majority does claim that our 1996 decision in Baker v. Putnal,\\n“clearly established” that the officers’ conduct here was unlawful. Maj. at 16\\n(citing 75 F.3d 190, 193 (5th Cir. 1996)). That is mistaken. In Baker, Officer\\nPutnal was patrolling a crowded beach area when gunfire erupted. Id.\\nWitnesses directed Putnal “toward a red car which they said contained the\\nshooters.” Id. He approached that car, but then saw two people sitting in\\nanother vehicle, a truck. Id. One of the truck’s passengers, Wendell Baker,\\n“turned in Putnal’s direction . . . [and] Putnal shot and killed [him].” Id. While\\na pistol was recovered from the truck, the plaintiffs denied Baker “was holding\\na pistol” when shot. Id. at 196. In other words, a jury could have found Baker\\nwas not holding a gun when Putnal killed him.\\n\\n\\n 74\\n\\n Case: 14-10228 Document: 00515084758 Page: 75 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n It is not hard to grasp the key difference between Baker and this case.\\nWhen shot, Baker was possibly not even holding a gun. When shot, Cole was\\nundisputedly holding a gun. Imagine this conversation between a police officer\\nand the police department’s lawyer:\\n\\n OFFICER: I heard the Fifth Circuit just decided this Baker case. What\\n does it tell me I should or shouldn’t do in the field?\\n LAWYER: Well, Baker says you lose qualified immunity if you shoot\\n someone sitting in a car doing nothing more threatening\\n than just turning in your direction. In other words, someone\\n you don’t even see holding a weapon.\\n OFFICER: Makes sense. But tell me this. What if the person I approach\\n is holding a gun?\\n LAWYER: Well, Baker doesn’t speak clearly to that situation. I mean,\\n the jury in Baker could have found the guy didn’t even have\\n a gun in his hand when the officer shot him.\\n\\nIn other words, contrary to the majority’s view, Baker could not have\\n“established clearly that Cassidy’s and Hunter’s conduct . . . was unlawful”\\nwhen they shot Cole as he emerged from the woods with his finger on the\\ntrigger of a loaded gun. Maj. at 16. To guide officers in the field, a controlling\\nprecedent must be “sufficiently clear that every reasonable [officer] would have\\nunderstood that what he is doing violates” the Constitution. Mullenix, 136 S.\\nCt. at 308 (cleaned up). Baker does not come close.\\n The officers deserve qualified immunity on the excessive force claims. I\\nrespectfully dissent.\\n\\n\\n\\n\\n 75\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431351/\", \"author_raw\": \"OLDHAM, Circuit Judges, dissenting\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"HIGGINBOTHAM"},"judge3":{"kind":"string","value":"JONES"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"SMITH; DENNIS; CLEMENT; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; DUNCAN; ENGELHARDT; OLDHAM"},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":8,"string":"8"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":6,"string":"6"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4654098/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Randy COLE; Karen Cole; Ryan Cole, Plaintiffs-Appellees v. Carl CARSON, Defendant-Appellant Randy Cole; Karen Cole; Ryan Cole, Plaintiffs-Appellees v. Michael Hunter; Martin Cassidy, Defendants-Appellants\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-20\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 14-10228 Document: 00515084758 Page: 1 Date Filed: 08/20/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 14-10228 August 20, 2019\n Lyle W. Cayce\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\n\n\n Plaintiffs-Appellees\nv.\n\nCARL CARSON,\n\n Defendant-Appellant\n\n ****************\n\n\n No. 15-10045\n\n\nRANDY COLE; KAREN COLE; RYAN COLE,\n\n Plaintiffs-Appellees\nv.\n\nMICHAEL HUNTER; MARTIN CASSIDY,\n\n Defendants-Appellants\n\n\n Appeals from the United States District Court\n for the Northern District of Texas\n _______________________\n\n\n ON PETITION FOR REHEARING EN BANC FOLLOWING\n REMAND FROM THE UNITED STATES SUPREME COURT\n\n Case: 14-10228 Document: 00515084758 Page: 2 Date Filed: 08/20/2019\n\n\n\n No. 14-10228 c/w No. 15-10045\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\nOLDHAM, Circuit Judges.\n\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\nPRISCILLA R. OWEN, JENNIFER WALKER ELROD, LESLIE H.\nSOUTHWICK, CATHARINA HAYNES, JAMES E. GRAVES, STEPHEN A.\nHIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT, Circuit\nJudges: 1\n\n The Supreme Court over several years has developed protection from\ncivil liability for persons going about their tasks as government workers in the\nform of immunity; not the absolute immunity enjoyed by prosecutors and\njudges, but a qualified immunity. Today we again repair to issues inherent in\nthe qualification. The doctrine protects at the earliest stage of litigation at\nwhich the defense’s application is determinable. To that end, courts have\ndeveloped procedures and pretrial practices, including appellate review of\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\nanswer under Rule 7(a) on order of the district court, particularized to address\nthe defense of immunity in a motion to dismiss or for summary judgment.\nWhen those processes do not yield pretrial resolution, as with competing\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\nfirst point at which its application is determinable. And in obeisance to\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\na jury—long a bastion interposed between the state and person, and assured\nby the Founders. And it signifies that today the district judge has multiple\n\n\n\n\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\nparticipating as members of the original panel.\n\n 2\n\n Case: 14-10228 Document: 00515084758 Page: 3 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nways to present fully the claims and defenses to a jury to ensure the\ngovernment worker a full draw upon his immunity defense, 2 including\nresolution of the competing factual narratives, one of which—or a meld of\nboth—may foreclose liability. 3\n In this case, police officers from Sachse, Texas argue that the district\ncourt should have sustained their defense of qualified immunity on their\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\nwhat happened. The officers filed dispositive pretrial motions in the district\ncourt, asserting the defense of qualified immunity. The district court denied\nthese motions, concluding that immunity could not be determined at this stage\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\n\n\n\n\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\n 3 In any treatment of the jury’s role in stepping between state-afforded process\n\nand an individual defendant, it bears emphasis that the district judge can impanel a\njury of at least six and as many as twelve members whose verdict, absent the parties’\nagreement otherwise, must be unanimous.\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\n\nHunter v. Cole, 137 S. Ct. 497 (2016).\n\n\n 3\n\n Case: 14-10228 Document: 00515084758 Page: 4 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\nthe denial of summary judgment as to the excessive-force claim. Because the\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\nlight of Mullenix.\n We conclude that it will be for a jury, and not judges, to resolve the\ncompeting factual narratives as detailed in the district court opinion and the\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\nAmendment and Brady fabrication-of-evidence claims based on qualified\nimmunity; and return the case to the district court for trial and resolution of\nissues consistent with this opinion.\n I\n A.\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\nDepartment called available units to the neighboring town of Garland, Texas.\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\n\n\n\n\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\ncuriam)).\n\n 4\n\n Case: 14-10228 Document: 00515084758 Page: 5 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nreported to be walking in the neighborhood with a handgun. Officer Michael\nHunter responded by proceeding immediately to the Garland neighborhood. In\na statement given on the day of the incident, Hunter related that on arriving\nin the neighborhood, he overheard a civilian stating that Ryan had given up\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\nkeep his handgun. Hunter searched the area, and saw two officers following\nRyan, who was walking away from them holding his gun to his head,\napproaching a wooded area along Highway 78. Although told by officers that\nthings were under control, Hunter volunteered to go behind the wooded area\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\nalso present, join him.\n Four years later, after this litigation had commenced, Hunter for the first\ntime recalled that the civilian he had overheard had described an altercation\nwith Ryan in which Ryan had threatened him. He also then for the first time\nrecalled hearing police-radio transmissions indicating that officers were\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\na risk of serious harm to a great many innocent in the vicinity.” Hunter\notherwise learned nothing “that would cause [him] to believe [Ryan] was\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\nand, four years after the incident, he also raised the possibility that Ryan was\nusing suicide as a pretext to evade the police.\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\ninformation. On the day of the incident, Cassidy swore that he learned “this\n\n\n\n\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\n\n 5\n\n Case: 14-10228 Document: 00515084758 Page: 6 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nsubject had shown up at [a] residence with a handgun and had just recently\nbeen seen walking away.” But, four years later, after this litigation had\ncommenced, like Hunter, Cassidy remembered learning more, including that\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\nan order to drop his weapon; and might be headed for Sachse High School “to\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\nHighway 78.\n The three officers separately arrived at the side of Highway 78 at around\nthe same time. Hunter parked his motorbike and drew his duty weapon;\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\nThe officers started walking along the tree line. A steep embankment rose from\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\nembankment to approach the tree line. Cassidy and Hunter used both the edge\nof the embankment and the vegetation to conceal themselves as they walked.\nHunter also removed his white motorcycle helmet in order to be less\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\nascending to the tree line. Hunter heard movement in the brush, and signaled\nto his colleagues.\n What occurred next is disputed. Viewing the summary judgment\nevidence and drawing reasonable inferences in the light most favorable to the\nnon-movant Coles, the district court determined that a reasonable jury could\nfind the following: Ryan backed out from the tree line in front of Hunter and\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\n\n\n\n\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\nin a light most favorable to the Coles, the district court relied on the physical and\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\n\n\n 6\n\n Case: 14-10228 Document: 00515084758 Page: 7 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\nat the Officers,” 9 and “never made a threatening or provocative gesture\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\nnot know that.\n Following the shooting, the three officers remained together at the scene.\nThe Coles allege that during this time the officers conspired to insulate Cassidy\nand Hunter from liability with a fabricated narrative in which Ryan was facing\nHunter and pointed his weapon at the officer, at which point Cassidy and\n\n\n\n\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\nhave been aware of the presence of the police officers prior to the time he was shot.”\n 8 Cole, 68 F. Supp. 3d at 644.\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\n\nargument that Cole did not know of the Officers’ presence.”).\n 10 Cole, 68 F. Supp. 3d at 645–46.\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\n\nduring which they could have called out to Cole, sufficient time to make a warning\naccording to Cole’s expert.\n 12 Cole, 68 F. Supp. 3d at 645.\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\n 14 Id. at 644.\n 15 Cole, 68 F. Supp. 3d at 644.\n 16 Id.\n\n\n 7\n\n Case: 14-10228 Document: 00515084758 Page: 8 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\nDepartment arrived and took control of the scene, but did not follow the\nstandard procedure of separating witnesses to ensure independent\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\npolice station together. Later that day, the officers provided statements to\ninvestigators. Hunter stated that he had no chance to issue a command to\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\nstated that Ryan then turned towards Hunter and pointed his handgun at\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\ndefensively. 17\n The Dallas County District Attorney presented the officers’ narrative to\na grand jury, which no-billed the officers and charged Ryan with felony\naggravated assault of a public servant. As a result of the charge, Ryan,\nincapacitated in intensive care, was placed under house arrest. About a month\nafter the indictment, investigators received a ballistics report from the crime\nlab. The ballistics analysis, taken together with stippling observed around\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\n Ryan suffered permanent injuries, including cognitive impairment,\npartial paralysis, and other serious mental and physical disabilities.\n\n\n\n\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\nhis line of sight.\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\n\nreleased immediately around a discharging firearm.\n\n 8\n\n Case: 14-10228 Document: 00515084758 Page: 9 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\n B.\n The Coles brought, inter alia, four Section 1983 claims against the\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\nagainst the use of excessive force arising from the shooting. Second, the Coles\nallege a violation of Ryan’s Fourteenth Amendment right against the\nimposition of false charges arising from the fabrication of evidence. Third, they\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\nviolation arising from the fabrication of evidence. The officers filed a motion to\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\ndefenses. The district court denied the motion in a January 2014 Memorandum\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\nqualified immunity defenses to the excessive-force claim. With that discovery\ncomplete, the two officers moved for summary judgment, rearguing qualified\nimmunity. The district court denied their motion and Cassidy and Hunter\nappealed.\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\ncourt affirmed the district court’s denial of summary judgment on the Coles’\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\n\n\n\n\n 19 The Coles filed an initial complaint in September 2012. The officers moved\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\nreply to the immunity defense. The district court then afforded the Coles opportunity\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\nThe officers then filed a second motion to dismiss.\n\n 9\n\n Case: 14-10228 Document: 00515084758 Page: 10 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nFourteenth Amendment false-charge claim, and reversed the denial as to the\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\nthe qualified immunity defense applicable for these claims. The officers\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\nSupreme Court granted certiorari, vacated the panel’s judgment, and\nremanded the case for further consideration in light of Mullenix v. Luna, 20\ndecided in the intervening time. 21\n On remand from the Supreme Court, recognizing that its jurisdiction\nwas limited to determining the materiality of factual disputes that the district\ncourt determined were genuine, the panel once again held that the\napplicability of qualified immunity for Cassidy and Hunter could not be\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\nremand order reached no further, the panel reinstated the Cole I opinion on\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\nrehearing en banc, which we granted. 24\n\n\n\n\n 20 136 S. Ct. 305 (2015).\n 21 As this court and others have acknowledged, when the Supreme Court\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\n\n378, 379 (5th Cir. 2019).\n 23 Id. at 341–42.\n 24 Cole, 915 F.3d at 379.\n\n\n\n\n 10\n\n Case: 14-10228 Document: 00515084758 Page: 11 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\n II\n A.\n We hear this case on remand from the Court for further consideration in\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\nimposition of false charges. 26 Second, finding qualified immunity applicable,\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\nqualified immunity applicable, we reverse the denial of the motion to dismiss\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\nviolation. 28\n\n\n\n\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\ndetention can violate the Fourth Amendment not only when it precedes, but also\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\n“Manuel does not address the availability of due process challenges after a legal\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\n 26 See Cole I, 802 F.3d at 766–74.\n 27 See id. at 764–65.\n 28 See id. at 765.\n\n\n\n\n 11\n\n Case: 14-10228 Document: 00515084758 Page: 12 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\n B.\n The qualified immunity inquiry includes two parts. In the first we ask\nwhether the officer’s alleged conduct has violated a federal right; in the second\nwe ask whether the right in question was “clearly established” at the time of\nthe alleged violation, such that the officer was on notice of the unlawfulness of\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\nviolation, or if the conduct did not violate law clearly established at the time. 30\n On an appeal of a denial of summary judgment on the basis of qualified\nimmunity, our jurisdiction is limited to examining the materiality of factual\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\nappeal we cannot challenge the district court’s assessments regarding the\nsufficiency of the evidence—that is, the question whether there is enough\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\nlack jurisdiction to resolve the genuineness of any factual disputes” and\n“consider only whether the district court erred in assessing the legal\nsignificance of the conduct that the district court deemed sufficiently supported\nfor purposes of summary judgment.” 33 Like the district court, we must view\nthe facts and draw reasonable inferences in the light most favorable to the\nplaintiff and ask whether the defendant would be entitled to qualified\n\n\n\n\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\n 30 Id.\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\n\nthe determination of qualified immunity would require the resolution of a genuinely\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\n\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\n 33 Id. (internal quotations omitted).\n\n\n\n\n 12\n\n Case: 14-10228 Document: 00515084758 Page: 13 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\ncourt for failing to take the evidence and draw factual inferences in the non-\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\nemphasized that the requirement is no less binding “even when . . . a court\ndecides only the clearly-established prong of the standard.” 36 Within the\nlimited scope of our inquiry, review is de novo. 37\n As instructed, we turn to the guidance provided by the Supreme Court\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\nan officer who had shot and killed a fugitive in a car chase. This court had\ndecided that the officer violated the clearly established rule that deadly force\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\nsome threat of harm, but we had held the threat was not “sufficient.” The\nSupreme Court reversed our decision. It found that the rule we articulated\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\nnot reasonably derive an applicable rule to govern his or her conduct in the\nsituation. 41 Finding that we had defined the applicable rule with too much\n\n\n\n\n 34 Lytle, 560 F.3d at 409.\n 35 Tolan, 572 U.S. at 660.\n 36 Id. at 657.\n 37 Trent, 776 F.3d at 376.\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\n 39 Id. at 309.\n 40 Id. at 309–10.\n 41 Id.\n\n\n\n\n 13\n\n Case: 14-10228 Document: 00515084758 Page: 14 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\n“generality,” 42 the Court reversed our holding that the officer had violated\nclearly established law. 43\n Under Mullenix, application of clearly established law is undertaken\nwith close attention to the relevant legal rule and the particular facts of the\ncase. Here, based on the facts taken in the light most favorable to the non-\nmovant Coles, and with reasonable inferences drawn in their favor, the district\ncourt determined there were genuine factual disputes as to Ryan’s and the\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\npose an immediate threat to the officers” when they opened fire. 44 It held that\n“on October 25, 2010, the date of the shooting, the law was clearly established”\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\nentire time at his own head and facing away from the officer, in an open\noutdoor area, and who was unaware of the officer’s presence because no\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\ndetail, the officers ask us to consider a different set of facts, but we cannot do\nso. We lack jurisdiction to reconsider the district court’s factual determinations\non an appeal from denial of summary judgment on qualified immunity.\n Tennessee v. Garner announced the principle that the use of deadly force\nis permitted only to protect the life of the shooting officer or others: “Where the\nsuspect poses no immediate threat to the officer and no threat to others, the\nharm resulting from failing to apprehend him does not justify the use of deadly\n\n\n\n\n 42 Id. at 311.\n 43 Id. at 312.\n 44 Cole, 68 F. Supp. 3d at 645.\n 45 Id. at 643.\n\n\n\n\n 14\n\n Case: 14-10228 Document: 00515084758 Page: 15 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nforce to do so.” 46 Garner also requires a warning before deadly force is used\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\nobvious cases, and this court has applied it in such cases, without dependence\non the fact patterns of other cases. 48\n The summary judgment facts, as determined by the district court, are\nthat Ryan posed no threat to the officers or others to support firing without\nwarning. The “Officers had the time and opportunity to give a warning and yet\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\nbeen facing him and pointing a gun at him.\n This case is obvious when we accept the facts as we must. It is also\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\nthis stage—was unlawful. For in Baker, members of the public told Officer\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\nduring spring break, that “someone had entered the crowd with a pistol-\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\n\n\n\n\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\n\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\n2012).\n 49 Cole, 68 F. Supp. 3d at 645.\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\n\n\n\n\n 15\n\n Case: 14-10228 Document: 00515084758 Page: 16 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\npeople directed the officer to a car in which the gunman was supposedly\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\n[Baker] took no threatening action . . . as the officer approached the truck,”\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\nparties did not dispute that Putnal had been searching for a gunman, and that\na gun had been recovered from Baker’s seat, although they disputed whether\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\nIt was also undisputed that Baker was turning to face Putnal from his seat,\nalthough medical reports indicated from “the nature of the wounds . . . that\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\nThe district court granted Putnal qualified immunity, crediting his account\n\n\n\n\n 51 Id.\n 52 Id. at 198.\n 53 Id. at 193.\n 54 Id.\n 55 Id. at 198.\n 56 Id.\n 57 Id.\n 58 Id.\n 59 Id. at 193.\n\n\n\n\n 16\n\n Case: 14-10228 Document: 00515084758 Page: 17 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nthat he had fired in response to Baker turning and aiming the gun at him. 60\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\nposition of Baker’s gun, we found “simply too many factual issues to permit the\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\nreasons to find that [the officer’s] use of force was not excessive as a matter of\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\nto the nonmoving party,” we held that “[t]he number of shots and the nature\nof the wounds raise . . . more of a question of fact than a court may dispose of\non summary judgment.” 64\n The Supreme Court’s more recent qualified immunity decisions do not\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\nresponded to a call that a woman was behaving erratically with a knife and\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\napproached to within “striking distance” of a bystander in the driveway. 66 One\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\n\n\n\n\n 60 Id. at 197.\n 61 Id. at 198.\n 62 Id.\n 63 Id.\n 64 Id. at 198–99.\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\n 66 Id.; id. at 1154.\n\n\n\n\n 17\n\n Case: 14-10228 Document: 00515084758 Page: 18 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\nHughes brought a Section 1983 excessive force claim against Kisela. 69\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\nrefusal to follow his repeated commands to drop the knife while within striking\ndistance of the bystander—obstinance that heightened the risk of immediate\nharm to another—the law did not clearly establish that the officer’s resort to\ndeadly force was unlawful. 70\n In this case, Officers Cassidy and Hunter found themselves in a search\nfor a suicidal teenager who they knew had already encountered fellow officers\nand walked away from them with his gun to his head, non-responsive, but\nwithout aggressive action. The circumstances of the officers’ encounter with\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\nthe officers, whether and how he turned and aimed his gun, and whether\nHunter warned Ryan to disarm himself. The district court here defined the\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\nviewing these disputes in a light most favorable to the Coles, concluded that a\nreasonable jury could find that Ryan made no threatening or provocative\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\nthe district court concluded that a reasonable jury could find Cassidy and\n\n\n\n\n 67 Id. at 1151.\n 68 Id.\n 69 Id.\n 70 Id. at 1153.\n\n\n 18\n\n Case: 14-10228 Document: 00515084758 Page: 19 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nHunter opened fire upon Ryan without warning, even though it was feasible.\nOn these facts, the officers’ conduct violates clearly established law.\n Rather than engage on the facts as we must take them at the summary\njudgment stage, the officers repeatedly argue from a different set of facts.\nWhile the district court found that Ryan was initially facing away from the\nofficers when they fired the first shot, the officers now describe his “armed turn\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\naimed at his own head and never pointed it at the officers, the officers now\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\nthen only momentarily turned back towards Ryan’s head at the moment he\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\npointed toward him—a story prosecutors accepted until a ballistics report\nexposed its impossibility). And although the district court found that Ryan was\nnot given an opportunity to disarm himself, the officers contend that he was\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\nargument to us as a full court, and in the teeth of those found by the district\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\nestablished law in 2010 put the officers’ response of firing in self-defense\nbeyond the law.\n The Coles and amicus Cato Institute are correct that it is beyond our\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\n“[I]f an excessive force claim turns on which of two conflicting stories best\ncaptures what happened on the street,” the caselaw “will not permit summary\n\n\n\n\n 19\n\n Case: 14-10228 Document: 00515084758 Page: 20 Date Filed: 08/20/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\nWhereas the officers will have a chance to present their factual narrative—and\nto question the Coles’—at trial, they cannot contest the facts in the current\nappeal. 72\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Randy COLE; Karen Cole; Ryan Cole, Plaintiffs-Appellees v. Carl CARSON, Defendant-Appellant Randy Cole; Karen Cole; Ryan Cole, Plaintiffs-Appellees v. Michael Hunter; Martin Cassidy, Defendants-Appellants\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-20\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 14-10228 Document: 00515084758 Page: 1 Date Filed: 08/20/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 14-10228 August 20, 2019\\n Lyle W. Cayce\\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\\n\\n\\n Plaintiffs-Appellees\\nv.\\n\\nCARL CARSON,\\n\\n Defendant-Appellant\\n\\n ****************\\n\\n\\n No. 15-10045\\n\\n\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs-Appellees\\nv.\\n\\nMICHAEL HUNTER; MARTIN CASSIDY,\\n\\n Defendants-Appellants\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n _______________________\\n\\n\\n ON PETITION FOR REHEARING EN BANC FOLLOWING\\n REMAND FROM THE UNITED STATES SUPREME COURT\\n\\n Case: 14-10228 Document: 00515084758 Page: 2 Date Filed: 08/20/2019\\n\\n\\n\\n No. 14-10228 c/w No. 15-10045\\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\\nOLDHAM, Circuit Judges.\\n\\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\\nPRISCILLA R. OWEN, JENNIFER WALKER ELROD, LESLIE H.\\nSOUTHWICK, CATHARINA HAYNES, JAMES E. GRAVES, STEPHEN A.\\nHIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT, Circuit\\nJudges: 1\\n\\n The Supreme Court over several years has developed protection from\\ncivil liability for persons going about their tasks as government workers in the\\nform of immunity; not the absolute immunity enjoyed by prosecutors and\\njudges, but a qualified immunity. Today we again repair to issues inherent in\\nthe qualification. The doctrine protects at the earliest stage of litigation at\\nwhich the defense’s application is determinable. To that end, courts have\\ndeveloped procedures and pretrial practices, including appellate review of\\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\\nanswer under Rule 7(a) on order of the district court, particularized to address\\nthe defense of immunity in a motion to dismiss or for summary judgment.\\nWhen those processes do not yield pretrial resolution, as with competing\\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\\nfirst point at which its application is determinable. And in obeisance to\\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\\na jury—long a bastion interposed between the state and person, and assured\\nby the Founders. And it signifies that today the district judge has multiple\\n\\n\\n\\n\\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\\nparticipating as members of the original panel.\\n\\n 2\\n\\n Case: 14-10228 Document: 00515084758 Page: 3 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nways to present fully the claims and defenses to a jury to ensure the\\ngovernment worker a full draw upon his immunity defense, 2 including\\nresolution of the competing factual narratives, one of which—or a meld of\\nboth—may foreclose liability. 3\\n In this case, police officers from Sachse, Texas argue that the district\\ncourt should have sustained their defense of qualified immunity on their\\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\\nwhat happened. The officers filed dispositive pretrial motions in the district\\ncourt, asserting the defense of qualified immunity. The district court denied\\nthese motions, concluding that immunity could not be determined at this stage\\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\\n\\n\\n\\n\\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\\n 3 In any treatment of the jury’s role in stepping between state-afforded process\\n\\nand an individual defendant, it bears emphasis that the district judge can impanel a\\njury of at least six and as many as twelve members whose verdict, absent the parties’\\nagreement otherwise, must be unanimous.\\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\\n\\nHunter v. Cole, 137 S. Ct. 497 (2016).\\n\\n\\n 3\\n\\n Case: 14-10228 Document: 00515084758 Page: 4 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\\nthe denial of summary judgment as to the excessive-force claim. Because the\\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\\nlight of Mullenix.\\n We conclude that it will be for a jury, and not judges, to resolve the\\ncompeting factual narratives as detailed in the district court opinion and the\\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims based on qualified\\nimmunity; and return the case to the district court for trial and resolution of\\nissues consistent with this opinion.\\n I\\n A.\\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\\nDepartment called available units to the neighboring town of Garland, Texas.\\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\\n\\n\\n\\n\\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\\ncuriam)).\\n\\n 4\\n\\n Case: 14-10228 Document: 00515084758 Page: 5 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nreported to be walking in the neighborhood with a handgun. Officer Michael\\nHunter responded by proceeding immediately to the Garland neighborhood. In\\na statement given on the day of the incident, Hunter related that on arriving\\nin the neighborhood, he overheard a civilian stating that Ryan had given up\\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\\nkeep his handgun. Hunter searched the area, and saw two officers following\\nRyan, who was walking away from them holding his gun to his head,\\napproaching a wooded area along Highway 78. Although told by officers that\\nthings were under control, Hunter volunteered to go behind the wooded area\\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\\nalso present, join him.\\n Four years later, after this litigation had commenced, Hunter for the first\\ntime recalled that the civilian he had overheard had described an altercation\\nwith Ryan in which Ryan had threatened him. He also then for the first time\\nrecalled hearing police-radio transmissions indicating that officers were\\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\\na risk of serious harm to a great many innocent in the vicinity.” Hunter\\notherwise learned nothing “that would cause [him] to believe [Ryan] was\\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\\nand, four years after the incident, he also raised the possibility that Ryan was\\nusing suicide as a pretext to evade the police.\\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\\ninformation. On the day of the incident, Cassidy swore that he learned “this\\n\\n\\n\\n\\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\\n\\n 5\\n\\n Case: 14-10228 Document: 00515084758 Page: 6 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nsubject had shown up at [a] residence with a handgun and had just recently\\nbeen seen walking away.” But, four years later, after this litigation had\\ncommenced, like Hunter, Cassidy remembered learning more, including that\\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\\nan order to drop his weapon; and might be headed for Sachse High School “to\\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\\nHighway 78.\\n The three officers separately arrived at the side of Highway 78 at around\\nthe same time. Hunter parked his motorbike and drew his duty weapon;\\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\\nThe officers started walking along the tree line. A steep embankment rose from\\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\\nembankment to approach the tree line. Cassidy and Hunter used both the edge\\nof the embankment and the vegetation to conceal themselves as they walked.\\nHunter also removed his white motorcycle helmet in order to be less\\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\\nascending to the tree line. Hunter heard movement in the brush, and signaled\\nto his colleagues.\\n What occurred next is disputed. Viewing the summary judgment\\nevidence and drawing reasonable inferences in the light most favorable to the\\nnon-movant Coles, the district court determined that a reasonable jury could\\nfind the following: Ryan backed out from the tree line in front of Hunter and\\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\\n\\n\\n\\n\\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\\nin a light most favorable to the Coles, the district court relied on the physical and\\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\\n\\n\\n 6\\n\\n Case: 14-10228 Document: 00515084758 Page: 7 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\\nat the Officers,” 9 and “never made a threatening or provocative gesture\\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\\nnot know that.\\n Following the shooting, the three officers remained together at the scene.\\nThe Coles allege that during this time the officers conspired to insulate Cassidy\\nand Hunter from liability with a fabricated narrative in which Ryan was facing\\nHunter and pointed his weapon at the officer, at which point Cassidy and\\n\\n\\n\\n\\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\\nhave been aware of the presence of the police officers prior to the time he was shot.”\\n 8 Cole, 68 F. Supp. 3d at 644.\\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\\n\\nargument that Cole did not know of the Officers’ presence.”).\\n 10 Cole, 68 F. Supp. 3d at 645–46.\\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\\n\\nduring which they could have called out to Cole, sufficient time to make a warning\\naccording to Cole’s expert.\\n 12 Cole, 68 F. Supp. 3d at 645.\\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\\n 14 Id. at 644.\\n 15 Cole, 68 F. Supp. 3d at 644.\\n 16 Id.\\n\\n\\n 7\\n\\n Case: 14-10228 Document: 00515084758 Page: 8 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\\nDepartment arrived and took control of the scene, but did not follow the\\nstandard procedure of separating witnesses to ensure independent\\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\\npolice station together. Later that day, the officers provided statements to\\ninvestigators. Hunter stated that he had no chance to issue a command to\\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\\nstated that Ryan then turned towards Hunter and pointed his handgun at\\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\\ndefensively. 17\\n The Dallas County District Attorney presented the officers’ narrative to\\na grand jury, which no-billed the officers and charged Ryan with felony\\naggravated assault of a public servant. As a result of the charge, Ryan,\\nincapacitated in intensive care, was placed under house arrest. About a month\\nafter the indictment, investigators received a ballistics report from the crime\\nlab. The ballistics analysis, taken together with stippling observed around\\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\\n Ryan suffered permanent injuries, including cognitive impairment,\\npartial paralysis, and other serious mental and physical disabilities.\\n\\n\\n\\n\\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\\nhis line of sight.\\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\\n\\nreleased immediately around a discharging firearm.\\n\\n 8\\n\\n Case: 14-10228 Document: 00515084758 Page: 9 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The Coles brought, inter alia, four Section 1983 claims against the\\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\\nagainst the use of excessive force arising from the shooting. Second, the Coles\\nallege a violation of Ryan’s Fourteenth Amendment right against the\\nimposition of false charges arising from the fabrication of evidence. Third, they\\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\\nviolation arising from the fabrication of evidence. The officers filed a motion to\\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\\ndefenses. The district court denied the motion in a January 2014 Memorandum\\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\\nqualified immunity defenses to the excessive-force claim. With that discovery\\ncomplete, the two officers moved for summary judgment, rearguing qualified\\nimmunity. The district court denied their motion and Cassidy and Hunter\\nappealed.\\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\\ncourt affirmed the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\\n\\n\\n\\n\\n 19 The Coles filed an initial complaint in September 2012. The officers moved\\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\\nreply to the immunity defense. The district court then afforded the Coles opportunity\\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\\nThe officers then filed a second motion to dismiss.\\n\\n 9\\n\\n Case: 14-10228 Document: 00515084758 Page: 10 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nFourteenth Amendment false-charge claim, and reversed the denial as to the\\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\\nthe qualified immunity defense applicable for these claims. The officers\\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\\nSupreme Court granted certiorari, vacated the panel’s judgment, and\\nremanded the case for further consideration in light of Mullenix v. Luna, 20\\ndecided in the intervening time. 21\\n On remand from the Supreme Court, recognizing that its jurisdiction\\nwas limited to determining the materiality of factual disputes that the district\\ncourt determined were genuine, the panel once again held that the\\napplicability of qualified immunity for Cassidy and Hunter could not be\\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\\nremand order reached no further, the panel reinstated the Cole I opinion on\\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\\nrehearing en banc, which we granted. 24\\n\\n\\n\\n\\n 20 136 S. Ct. 305 (2015).\\n 21 As this court and others have acknowledged, when the Supreme Court\\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\\n\\n378, 379 (5th Cir. 2019).\\n 23 Id. at 341–42.\\n 24 Cole, 915 F.3d at 379.\\n\\n\\n\\n\\n 10\\n\\n Case: 14-10228 Document: 00515084758 Page: 11 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II\\n A.\\n We hear this case on remand from the Court for further consideration in\\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\\nimposition of false charges. 26 Second, finding qualified immunity applicable,\\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\\nqualified immunity applicable, we reverse the denial of the motion to dismiss\\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\\nviolation. 28\\n\\n\\n\\n\\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\\ndetention can violate the Fourth Amendment not only when it precedes, but also\\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\\n“Manuel does not address the availability of due process challenges after a legal\\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\\n 26 See Cole I, 802 F.3d at 766–74.\\n 27 See id. at 764–65.\\n 28 See id. at 765.\\n\\n\\n\\n\\n 11\\n\\n Case: 14-10228 Document: 00515084758 Page: 12 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The qualified immunity inquiry includes two parts. In the first we ask\\nwhether the officer’s alleged conduct has violated a federal right; in the second\\nwe ask whether the right in question was “clearly established” at the time of\\nthe alleged violation, such that the officer was on notice of the unlawfulness of\\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\\nviolation, or if the conduct did not violate law clearly established at the time. 30\\n On an appeal of a denial of summary judgment on the basis of qualified\\nimmunity, our jurisdiction is limited to examining the materiality of factual\\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\\nappeal we cannot challenge the district court’s assessments regarding the\\nsufficiency of the evidence—that is, the question whether there is enough\\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\\nlack jurisdiction to resolve the genuineness of any factual disputes” and\\n“consider only whether the district court erred in assessing the legal\\nsignificance of the conduct that the district court deemed sufficiently supported\\nfor purposes of summary judgment.” 33 Like the district court, we must view\\nthe facts and draw reasonable inferences in the light most favorable to the\\nplaintiff and ask whether the defendant would be entitled to qualified\\n\\n\\n\\n\\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\\n 30 Id.\\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\\n\\nthe determination of qualified immunity would require the resolution of a genuinely\\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\\n\\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\\n 33 Id. (internal quotations omitted).\\n\\n\\n\\n\\n 12\\n\\n Case: 14-10228 Document: 00515084758 Page: 13 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\\ncourt for failing to take the evidence and draw factual inferences in the non-\\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\\nemphasized that the requirement is no less binding “even when . . . a court\\ndecides only the clearly-established prong of the standard.” 36 Within the\\nlimited scope of our inquiry, review is de novo. 37\\n As instructed, we turn to the guidance provided by the Supreme Court\\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\\nan officer who had shot and killed a fugitive in a car chase. This court had\\ndecided that the officer violated the clearly established rule that deadly force\\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\\nsome threat of harm, but we had held the threat was not “sufficient.” The\\nSupreme Court reversed our decision. It found that the rule we articulated\\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\\nnot reasonably derive an applicable rule to govern his or her conduct in the\\nsituation. 41 Finding that we had defined the applicable rule with too much\\n\\n\\n\\n\\n 34 Lytle, 560 F.3d at 409.\\n 35 Tolan, 572 U.S. at 660.\\n 36 Id. at 657.\\n 37 Trent, 776 F.3d at 376.\\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\\n 39 Id. at 309.\\n 40 Id. at 309–10.\\n 41 Id.\\n\\n\\n\\n\\n 13\\n\\n Case: 14-10228 Document: 00515084758 Page: 14 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n“generality,” 42 the Court reversed our holding that the officer had violated\\nclearly established law. 43\\n Under Mullenix, application of clearly established law is undertaken\\nwith close attention to the relevant legal rule and the particular facts of the\\ncase. Here, based on the facts taken in the light most favorable to the non-\\nmovant Coles, and with reasonable inferences drawn in their favor, the district\\ncourt determined there were genuine factual disputes as to Ryan’s and the\\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\\npose an immediate threat to the officers” when they opened fire. 44 It held that\\n“on October 25, 2010, the date of the shooting, the law was clearly established”\\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\\nentire time at his own head and facing away from the officer, in an open\\noutdoor area, and who was unaware of the officer’s presence because no\\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\\ndetail, the officers ask us to consider a different set of facts, but we cannot do\\nso. We lack jurisdiction to reconsider the district court’s factual determinations\\non an appeal from denial of summary judgment on qualified immunity.\\n Tennessee v. Garner announced the principle that the use of deadly force\\nis permitted only to protect the life of the shooting officer or others: “Where the\\nsuspect poses no immediate threat to the officer and no threat to others, the\\nharm resulting from failing to apprehend him does not justify the use of deadly\\n\\n\\n\\n\\n 42 Id. at 311.\\n 43 Id. at 312.\\n 44 Cole, 68 F. Supp. 3d at 645.\\n 45 Id. at 643.\\n\\n\\n\\n\\n 14\\n\\n Case: 14-10228 Document: 00515084758 Page: 15 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nforce to do so.” 46 Garner also requires a warning before deadly force is used\\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\\nobvious cases, and this court has applied it in such cases, without dependence\\non the fact patterns of other cases. 48\\n The summary judgment facts, as determined by the district court, are\\nthat Ryan posed no threat to the officers or others to support firing without\\nwarning. The “Officers had the time and opportunity to give a warning and yet\\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\\nbeen facing him and pointing a gun at him.\\n This case is obvious when we accept the facts as we must. It is also\\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\\nthis stage—was unlawful. For in Baker, members of the public told Officer\\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\\nduring spring break, that “someone had entered the crowd with a pistol-\\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\\n\\n\\n\\n\\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\\n\\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\\n2012).\\n 49 Cole, 68 F. Supp. 3d at 645.\\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\\n\\n\\n\\n\\n 15\\n\\n Case: 14-10228 Document: 00515084758 Page: 16 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\\npeople directed the officer to a car in which the gunman was supposedly\\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\\n[Baker] took no threatening action . . . as the officer approached the truck,”\\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\\nparties did not dispute that Putnal had been searching for a gunman, and that\\na gun had been recovered from Baker’s seat, although they disputed whether\\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\\nIt was also undisputed that Baker was turning to face Putnal from his seat,\\nalthough medical reports indicated from “the nature of the wounds . . . that\\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\\nThe district court granted Putnal qualified immunity, crediting his account\\n\\n\\n\\n\\n 51 Id.\\n 52 Id. at 198.\\n 53 Id. at 193.\\n 54 Id.\\n 55 Id. at 198.\\n 56 Id.\\n 57 Id.\\n 58 Id.\\n 59 Id. at 193.\\n\\n\\n\\n\\n 16\\n\\n Case: 14-10228 Document: 00515084758 Page: 17 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthat he had fired in response to Baker turning and aiming the gun at him. 60\\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\\nposition of Baker’s gun, we found “simply too many factual issues to permit the\\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\\nreasons to find that [the officer’s] use of force was not excessive as a matter of\\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\\nto the nonmoving party,” we held that “[t]he number of shots and the nature\\nof the wounds raise . . . more of a question of fact than a court may dispose of\\non summary judgment.” 64\\n The Supreme Court’s more recent qualified immunity decisions do not\\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\\nresponded to a call that a woman was behaving erratically with a knife and\\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\\napproached to within “striking distance” of a bystander in the driveway. 66 One\\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\\n\\n\\n\\n\\n 60 Id. at 197.\\n 61 Id. at 198.\\n 62 Id.\\n 63 Id.\\n 64 Id. at 198–99.\\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\\n 66 Id.; id. at 1154.\\n\\n\\n\\n\\n 17\\n\\n Case: 14-10228 Document: 00515084758 Page: 18 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\\nHughes brought a Section 1983 excessive force claim against Kisela. 69\\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\\nrefusal to follow his repeated commands to drop the knife while within striking\\ndistance of the bystander—obstinance that heightened the risk of immediate\\nharm to another—the law did not clearly establish that the officer’s resort to\\ndeadly force was unlawful. 70\\n In this case, Officers Cassidy and Hunter found themselves in a search\\nfor a suicidal teenager who they knew had already encountered fellow officers\\nand walked away from them with his gun to his head, non-responsive, but\\nwithout aggressive action. The circumstances of the officers’ encounter with\\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\\nthe officers, whether and how he turned and aimed his gun, and whether\\nHunter warned Ryan to disarm himself. The district court here defined the\\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\\nviewing these disputes in a light most favorable to the Coles, concluded that a\\nreasonable jury could find that Ryan made no threatening or provocative\\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\\nthe district court concluded that a reasonable jury could find Cassidy and\\n\\n\\n\\n\\n 67 Id. at 1151.\\n 68 Id.\\n 69 Id.\\n 70 Id. at 1153.\\n\\n\\n 18\\n\\n Case: 14-10228 Document: 00515084758 Page: 19 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter opened fire upon Ryan without warning, even though it was feasible.\\nOn these facts, the officers’ conduct violates clearly established law.\\n Rather than engage on the facts as we must take them at the summary\\njudgment stage, the officers repeatedly argue from a different set of facts.\\nWhile the district court found that Ryan was initially facing away from the\\nofficers when they fired the first shot, the officers now describe his “armed turn\\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\\naimed at his own head and never pointed it at the officers, the officers now\\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\\nthen only momentarily turned back towards Ryan’s head at the moment he\\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\\npointed toward him—a story prosecutors accepted until a ballistics report\\nexposed its impossibility). And although the district court found that Ryan was\\nnot given an opportunity to disarm himself, the officers contend that he was\\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\\nargument to us as a full court, and in the teeth of those found by the district\\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\\nestablished law in 2010 put the officers’ response of firing in self-defense\\nbeyond the law.\\n The Coles and amicus Cato Institute are correct that it is beyond our\\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\\n“[I]f an excessive force claim turns on which of two conflicting stories best\\ncaptures what happened on the street,” the caselaw “will not permit summary\\n\\n\\n\\n\\n 19\\n\\n Case: 14-10228 Document: 00515084758 Page: 20 Date Filed: 08/20/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\\nWhereas the officers will have a chance to present their factual narrative—and\\nto question the Coles’—at trial, they cannot contest the facts in the current\\nappeal. 72\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3683,"cells":{"id":{"kind":"number","value":4654373,"string":"4,654,373"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Randy Cole v. Michael Hunter"},"decision_date":{"kind":"string","value":"2019-08-21"},"docket_number":{"kind":"string","value":"14-10228"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH, DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"type\": \"010combined\", \"text\": \"REVISED August 21, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 14-10228 August 20, 2019\\n Lyle W. Cayce\\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\\n\\n\\n Plaintiffs-Appellees\\nv.\\n\\nCARL CARSON,\\n\\n Defendant-Appellant\\n\\n ****************\\n\\n\\n No. 15-10045\\n\\n\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs-Appellees\\nv.\\n\\nMICHAEL HUNTER; MARTIN CASSIDY,\\n\\n Defendants-Appellants\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n _______________________\\n\\n ON PETITION FOR REHEARING EN BANC FOLLOWING\\n REMAND FROM THE UNITED STATES SUPREME COURT\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n\\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\\nOLDHAM, Circuit Judges.\\n\\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\\nJENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA\\nHAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA,\\nand KURT D. ENGELHARDT, Circuit Judges: 1\\n\\n The Supreme Court over several years has developed protection from\\ncivil liability for persons going about their tasks as government workers in the\\nform of immunity; not the absolute immunity enjoyed by prosecutors and\\njudges, but a qualified immunity. Today we again repair to issues inherent in\\nthe qualification. The doctrine protects at the earliest stage of litigation at\\nwhich the defense’s application is determinable. To that end, courts have\\ndeveloped procedures and pretrial practices, including appellate review of\\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\\nanswer under Rule 7(a) on order of the district court, particularized to address\\nthe defense of immunity in a motion to dismiss or for summary judgment.\\nWhen those processes do not yield pretrial resolution, as with competing\\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\\nfirst point at which its application is determinable. And in obeisance to\\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\\na jury—long a bastion interposed between the state and person, and assured\\nby the Founders. And it signifies that today the district judge has multiple\\n\\n\\n\\n\\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\\nparticipating as members of the original panel.\\n\\n 2\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nways to present fully the claims and defenses to a jury to ensure the\\ngovernment worker a full draw upon his immunity defense, 2 including\\nresolution of the competing factual narratives, one of which—or a meld of\\nboth—may foreclose liability. 3\\n In this case, police officers from Sachse, Texas argue that the district\\ncourt should have sustained their defense of qualified immunity on their\\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\\nwhat happened. The officers filed dispositive pretrial motions in the district\\ncourt, asserting the defense of qualified immunity. The district court denied\\nthese motions, concluding that immunity could not be determined at this stage\\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\\n\\n\\n\\n\\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\\n 3 In any treatment of the jury’s role in stepping between state-afforded process\\n\\nand an individual defendant, it bears emphasis that the district judge can impanel a\\njury of at least six and as many as twelve members whose verdict, absent the parties’\\nagreement otherwise, must be unanimous.\\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\\n\\nHunter v. Cole, 137 S. Ct. 497 (2016).\\n\\n\\n 3\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\\nthe denial of summary judgment as to the excessive-force claim. Because the\\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\\nlight of Mullenix.\\n We conclude that it will be for a jury, and not judges, to resolve the\\ncompeting factual narratives as detailed in the district court opinion and the\\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims based on qualified\\nimmunity; and return the case to the district court for trial and resolution of\\nissues consistent with this opinion.\\n I\\n A.\\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\\nDepartment called available units to the neighboring town of Garland, Texas.\\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\\n\\n\\n\\n\\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\\ncuriam)).\\n\\n 4\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nreported to be walking in the neighborhood with a handgun. Officer Michael\\nHunter responded by proceeding immediately to the Garland neighborhood. In\\na statement given on the day of the incident, Hunter related that on arriving\\nin the neighborhood, he overheard a civilian stating that Ryan had given up\\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\\nkeep his handgun. Hunter searched the area, and saw two officers following\\nRyan, who was walking away from them holding his gun to his head,\\napproaching a wooded area along Highway 78. Although told by officers that\\nthings were under control, Hunter volunteered to go behind the wooded area\\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\\nalso present, join him.\\n Four years later, after this litigation had commenced, Hunter for the first\\ntime recalled that the civilian he had overheard had described an altercation\\nwith Ryan in which Ryan had threatened him. He also then for the first time\\nrecalled hearing police-radio transmissions indicating that officers were\\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\\na risk of serious harm to a great many innocent in the vicinity.” Hunter\\notherwise learned nothing “that would cause [him] to believe [Ryan] was\\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\\nand, four years after the incident, he also raised the possibility that Ryan was\\nusing suicide as a pretext to evade the police.\\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\\ninformation. On the day of the incident, Cassidy swore that he learned “this\\n\\n\\n\\n\\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\\n\\n 5\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nsubject had shown up at [a] residence with a handgun and had just recently\\nbeen seen walking away.” But, four years later, after this litigation had\\ncommenced, like Hunter, Cassidy remembered learning more, including that\\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\\nan order to drop his weapon; and might be headed for Sachse High School “to\\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\\nHighway 78.\\n The three officers separately arrived at the side of Highway 78 at around\\nthe same time. Hunter parked his motorbike and drew his duty weapon;\\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\\nThe officers started walking along the tree line. A steep embankment rose from\\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\\nembankment to approach the tree line. Cassidy and Hunter used both the edge\\nof the embankment and the vegetation to conceal themselves as they walked.\\nHunter also removed his white motorcycle helmet in order to be less\\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\\nascending to the tree line. Hunter heard movement in the brush, and signaled\\nto his colleagues.\\n What occurred next is disputed. Viewing the summary judgment\\nevidence and drawing reasonable inferences in the light most favorable to the\\nnon-movant Coles, the district court determined that a reasonable jury could\\nfind the following: Ryan backed out from the tree line in front of Hunter and\\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\\n\\n\\n\\n\\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\\nin a light most favorable to the Coles, the district court relied on the physical and\\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\\n\\n\\n 6\\n\\n No. 14-10228 c/w No. 15-10045\\n\\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\\nat the Officers,” 9 and “never made a threatening or provocative gesture\\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\\nnot know that.\\n Following the shooting, the three officers remained together at the scene.\\nThe Coles allege that during this time the officers conspired to insulate Cassidy\\nand Hunter from liability with a fabricated narrative in which Ryan was facing\\nHunter and pointed his weapon at the officer, at which point Cassidy and\\n\\n\\n\\n\\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\\nhave been aware of the presence of the police officers prior to the time he was shot.”\\n 8 Cole, 68 F. Supp. 3d at 644.\\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\\n\\nargument that Cole did not know of the Officers’ presence.”).\\n 10 Cole, 68 F. Supp. 3d at 645–46.\\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\\n\\nduring which they could have called out to Cole, sufficient time to make a warning\\naccording to Cole’s expert.\\n 12 Cole, 68 F. Supp. 3d at 645.\\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\\n 14 Id. at 644.\\n 15 Cole, 68 F. Supp. 3d at 644.\\n 16 Id.\\n\\n\\n 7\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\\nDepartment arrived and took control of the scene, but did not follow the\\nstandard procedure of separating witnesses to ensure independent\\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\\npolice station together. Later that day, the officers provided statements to\\ninvestigators. Hunter stated that he had no chance to issue a command to\\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\\nstated that Ryan then turned towards Hunter and pointed his handgun at\\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\\ndefensively. 17\\n The Dallas County District Attorney presented the officers’ narrative to\\na grand jury, which no-billed the officers and charged Ryan with felony\\naggravated assault of a public servant. As a result of the charge, Ryan,\\nincapacitated in intensive care, was placed under house arrest. About a month\\nafter the indictment, investigators received a ballistics report from the crime\\nlab. The ballistics analysis, taken together with stippling observed around\\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\\n Ryan suffered permanent injuries, including cognitive impairment,\\npartial paralysis, and other serious mental and physical disabilities.\\n\\n\\n\\n\\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\\nhis line of sight.\\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\\n\\nreleased immediately around a discharging firearm.\\n\\n 8\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The Coles brought, inter alia, four Section 1983 claims against the\\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\\nagainst the use of excessive force arising from the shooting. Second, the Coles\\nallege a violation of Ryan’s Fourteenth Amendment right against the\\nimposition of false charges arising from the fabrication of evidence. Third, they\\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\\nviolation arising from the fabrication of evidence. The officers filed a motion to\\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\\ndefenses. The district court denied the motion in a January 2014 Memorandum\\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\\nqualified immunity defenses to the excessive-force claim. With that discovery\\ncomplete, the two officers moved for summary judgment, rearguing qualified\\nimmunity. The district court denied their motion and Cassidy and Hunter\\nappealed.\\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\\ncourt affirmed the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\\n\\n\\n\\n\\n 19 The Coles filed an initial complaint in September 2012. The officers moved\\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\\nreply to the immunity defense. The district court then afforded the Coles opportunity\\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\\nThe officers then filed a second motion to dismiss.\\n\\n 9\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nFourteenth Amendment false-charge claim, and reversed the denial as to the\\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\\nthe qualified immunity defense applicable for these claims. The officers\\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\\nSupreme Court granted certiorari, vacated the panel’s judgment, and\\nremanded the case for further consideration in light of Mullenix v. Luna, 20\\ndecided in the intervening time. 21\\n On remand from the Supreme Court, recognizing that its jurisdiction\\nwas limited to determining the materiality of factual disputes that the district\\ncourt determined were genuine, the panel once again held that the\\napplicability of qualified immunity for Cassidy and Hunter could not be\\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\\nremand order reached no further, the panel reinstated the Cole I opinion on\\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\\nrehearing en banc, which we granted. 24\\n\\n\\n\\n\\n 20 136 S. Ct. 305 (2015).\\n 21 As this court and others have acknowledged, when the Supreme Court\\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\\n\\n378, 379 (5th Cir. 2019).\\n 23 Id. at 341–42.\\n 24 Cole, 915 F.3d at 379.\\n\\n\\n\\n\\n 10\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II\\n A.\\n We hear this case on remand from the Court for further consideration in\\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\\nimposition of false charges. 26 Second, finding qualified immunity applicable,\\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\\nqualified immunity applicable, we reverse the denial of the motion to dismiss\\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\\nviolation. 28\\n\\n\\n\\n\\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\\ndetention can violate the Fourth Amendment not only when it precedes, but also\\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\\n“Manuel does not address the availability of due process challenges after a legal\\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\\n 26 See Cole I, 802 F.3d at 766–74.\\n 27 See id. at 764–65.\\n 28 See id. at 765.\\n\\n\\n\\n\\n 11\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The qualified immunity inquiry includes two parts. In the first we ask\\nwhether the officer’s alleged conduct has violated a federal right; in the second\\nwe ask whether the right in question was “clearly established” at the time of\\nthe alleged violation, such that the officer was on notice of the unlawfulness of\\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\\nviolation, or if the conduct did not violate law clearly established at the time. 30\\n On an appeal of a denial of summary judgment on the basis of qualified\\nimmunity, our jurisdiction is limited to examining the materiality of factual\\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\\nappeal we cannot challenge the district court’s assessments regarding the\\nsufficiency of the evidence—that is, the question whether there is enough\\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\\nlack jurisdiction to resolve the genuineness of any factual disputes” and\\n“consider only whether the district court erred in assessing the legal\\nsignificance of the conduct that the district court deemed sufficiently supported\\nfor purposes of summary judgment.” 33 Like the district court, we must view\\nthe facts and draw reasonable inferences in the light most favorable to the\\nplaintiff and ask whether the defendant would be entitled to qualified\\n\\n\\n\\n\\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\\n 30 Id.\\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\\n\\nthe determination of qualified immunity would require the resolution of a genuinely\\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\\n\\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\\n 33 Id. (internal quotations omitted).\\n\\n\\n\\n\\n 12\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\\ncourt for failing to take the evidence and draw factual inferences in the non-\\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\\nemphasized that the requirement is no less binding “even when . . . a court\\ndecides only the clearly-established prong of the standard.” 36 Within the\\nlimited scope of our inquiry, review is de novo. 37\\n As instructed, we turn to the guidance provided by the Supreme Court\\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\\nan officer who had shot and killed a fugitive in a car chase. This court had\\ndecided that the officer violated the clearly established rule that deadly force\\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\\nsome threat of harm, but we had held the threat was not “sufficient.” The\\nSupreme Court reversed our decision. It found that the rule we articulated\\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\\nnot reasonably derive an applicable rule to govern his or her conduct in the\\nsituation. 41 Finding that we had defined the applicable rule with too much\\n\\n\\n\\n\\n 34 Lytle, 560 F.3d at 409.\\n 35 Tolan, 572 U.S. at 660.\\n 36 Id. at 657.\\n 37 Trent, 776 F.3d at 376.\\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\\n 39 Id. at 309.\\n 40 Id. at 309–10.\\n 41 Id.\\n\\n\\n\\n\\n 13\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n“generality,” 42 the Court reversed our holding that the officer had violated\\nclearly established law. 43\\n Under Mullenix, application of clearly established law is undertaken\\nwith close attention to the relevant legal rule and the particular facts of the\\ncase. Here, based on the facts taken in the light most favorable to the non-\\nmovant Coles, and with reasonable inferences drawn in their favor, the district\\ncourt determined there were genuine factual disputes as to Ryan’s and the\\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\\npose an immediate threat to the officers” when they opened fire. 44 It held that\\n“on October 25, 2010, the date of the shooting, the law was clearly established”\\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\\nentire time at his own head and facing away from the officer, in an open\\noutdoor area, and who was unaware of the officer’s presence because no\\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\\ndetail, the officers ask us to consider a different set of facts, but we cannot do\\nso. We lack jurisdiction to reconsider the district court’s factual determinations\\non an appeal from denial of summary judgment on qualified immunity.\\n Tennessee v. Garner announced the principle that the use of deadly force\\nis permitted only to protect the life of the shooting officer or others: “Where the\\nsuspect poses no immediate threat to the officer and no threat to others, the\\nharm resulting from failing to apprehend him does not justify the use of deadly\\n\\n\\n\\n\\n 42 Id. at 311.\\n 43 Id. at 312.\\n 44 Cole, 68 F. Supp. 3d at 645.\\n 45 Id. at 643.\\n\\n\\n\\n\\n 14\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nforce to do so.” 46 Garner also requires a warning before deadly force is used\\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\\nobvious cases, and this court has applied it in such cases, without dependence\\non the fact patterns of other cases. 48\\n The summary judgment facts, as determined by the district court, are\\nthat Ryan posed no threat to the officers or others to support firing without\\nwarning. The “Officers had the time and opportunity to give a warning and yet\\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\\nbeen facing him and pointing a gun at him.\\n This case is obvious when we accept the facts as we must. It is also\\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\\nthis stage—was unlawful. For in Baker, members of the public told Officer\\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\\nduring spring break, that “someone had entered the crowd with a pistol-\\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\\n\\n\\n\\n\\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\\n\\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\\n2012).\\n 49 Cole, 68 F. Supp. 3d at 645.\\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\\n\\n\\n\\n\\n 15\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\\npeople directed the officer to a car in which the gunman was supposedly\\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\\n[Baker] took no threatening action . . . as the officer approached the truck,”\\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\\nparties did not dispute that Putnal had been searching for a gunman, and that\\na gun had been recovered from Baker’s seat, although they disputed whether\\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\\nIt was also undisputed that Baker was turning to face Putnal from his seat,\\nalthough medical reports indicated from “the nature of the wounds . . . that\\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\\nThe district court granted Putnal qualified immunity, crediting his account\\n\\n\\n\\n\\n 51 Id.\\n 52 Id. at 198.\\n 53 Id. at 193.\\n 54 Id.\\n 55 Id. at 198.\\n 56 Id.\\n 57 Id.\\n 58 Id.\\n 59 Id. at 193.\\n\\n\\n\\n\\n 16\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthat he had fired in response to Baker turning and aiming the gun at him. 60\\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\\nposition of Baker’s gun, we found “simply too many factual issues to permit the\\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\\nreasons to find that [the officer’s] use of force was not excessive as a matter of\\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\\nto the nonmoving party,” we held that “[t]he number of shots and the nature\\nof the wounds raise . . . more of a question of fact than a court may dispose of\\non summary judgment.” 64\\n The Supreme Court’s more recent qualified immunity decisions do not\\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\\nresponded to a call that a woman was behaving erratically with a knife and\\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\\napproached to within “striking distance” of a bystander in the driveway. 66 One\\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\\n\\n\\n\\n\\n 60 Id. at 197.\\n 61 Id. at 198.\\n 62 Id.\\n 63 Id.\\n 64 Id. at 198–99.\\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\\n 66 Id.; id. at 1154.\\n\\n\\n\\n\\n 17\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\\nHughes brought a Section 1983 excessive force claim against Kisela. 69\\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\\nrefusal to follow his repeated commands to drop the knife while within striking\\ndistance of the bystander—obstinance that heightened the risk of immediate\\nharm to another—the law did not clearly establish that the officer’s resort to\\ndeadly force was unlawful. 70\\n In this case, Officers Cassidy and Hunter found themselves in a search\\nfor a suicidal teenager who they knew had already encountered fellow officers\\nand walked away from them with his gun to his head, non-responsive, but\\nwithout aggressive action. The circumstances of the officers’ encounter with\\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\\nthe officers, whether and how he turned and aimed his gun, and whether\\nHunter warned Ryan to disarm himself. The district court here defined the\\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\\nviewing these disputes in a light most favorable to the Coles, concluded that a\\nreasonable jury could find that Ryan made no threatening or provocative\\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\\nthe district court concluded that a reasonable jury could find Cassidy and\\n\\n\\n\\n\\n 67 Id. at 1151.\\n 68 Id.\\n 69 Id.\\n 70 Id. at 1153.\\n\\n\\n 18\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter opened fire upon Ryan without warning, even though it was feasible.\\nOn these facts, the officers’ conduct violates clearly established law.\\n Rather than engage on the facts as we must take them at the summary\\njudgment stage, the officers repeatedly argue from a different set of facts.\\nWhile the district court found that Ryan was initially facing away from the\\nofficers when they fired the first shot, the officers now describe his “armed turn\\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\\naimed at his own head and never pointed it at the officers, the officers now\\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\\nthen only momentarily turned back towards Ryan’s head at the moment he\\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\\npointed toward him—a story prosecutors accepted until a ballistics report\\nexposed its impossibility). And although the district court found that Ryan was\\nnot given an opportunity to disarm himself, the officers contend that he was\\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\\nargument to us as a full court, and in the teeth of those found by the district\\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\\nestablished law in 2010 put the officers’ response of firing in self-defense\\nbeyond the law.\\n The Coles and amicus Cato Institute are correct that it is beyond our\\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\\n“[I]f an excessive force claim turns on which of two conflicting stories best\\ncaptures what happened on the street,” the caselaw “will not permit summary\\n\\n\\n\\n\\n 19\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\\nWhereas the officers will have a chance to present their factual narrative—and\\nto question the Coles’—at trial, they cannot contest the facts in the current\\nappeal. 72\", \"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART\"}, {\"type\": \"dissent\", \"author\": \"The\", \"text\": \"The dissents also take issue with the disputed facts. Judge Duncan\\nfocuses on what he terms “undisputed pre-encounter events.” But, particularly\\nin light of the officers’ evolving stories, it is disputed whether any of the events\\nrecounted were known to Hunter or Cassidy when they fired on Ryan. The\\ndissent cites to the reports and affidavits of other officers and individuals to\\ndescribe the events occurring before Hunter and Cassidy were called to the\\nscene. 73 But looking at the evidence in the light most favorable to the Coles,\\nHunter and Cassidy were not aware of the disturbance at the Coles’ house the\\nprevious night, the alleged cache of weapons left at the Reeds’ house, Ryan’s\\nalleged suicidal threat, or his threat to shoot anyone who came near him.\\n And of course, what matters is what the defendant officers knew when\\nthey shot Ryan. See, e.g., White v. Pauly, 137 S. Ct. 548, 550 (2017) (per curiam)\\n(“Because this case concerns the defense of qualified immunity . . . the Court\\n\\n\\n\\n\\n 71 Saucier v. Katz, 533 U.S. 194, 216 (2001) (Ginsburg, J. concurring). see also\\nTolan, 572 U.S. at 660; id. at 662 (Alito, J., joined by Scalia, J., concurring in the\\njudgment) (agreeing that “summary judgment should not have been granted” in that\\ncase because of the genuine issues of material fact); Lytle, 560 F.3d at 408–09.\\n 72 Cf. Tolan, 572 U.S. at 660 (“The witnesses on both sides come to this case\\n\\nwith their own perceptions, recollections, and even potential biases. It is in part for\\nthat reason that genuine disputes are generally resolved by juries in our adversarial\\nsystem. By weighing the evidence and reaching factual inferences contrary to [the\\nplaintiff’s] competent evidence, the court below neglected to adhere to the\\nfundamental principle that at the summary judgment stage, reasonable inferences\\nshould be drawn in favor of the nonmoving party.”).\\n 73 Recall that Hunter was a late-arriving officer who was not instructed by the\\n\\nSachse or Garland police departments to pursue Ryan. See supra at 4.\\n\\n 20\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nconsiders only the facts that were knowable to the defendant officers.”);\\nKingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015) (stressing that “a court\\nmust judge the reasonableness of the force used from the perspective and with\\nthe knowledge of the defendant officer”). The dissents overlook the\\nfundamental reason most of these facts should not be part of the analysis: we\\nconsider only what the officers knew at the time of their challenged conduct.\\n“Facts an officer learns after the incident ends—whether those facts would\\nsupport granting immunity or denying it—are not relevant.” Hernandez v.\\nMesa, 137 S. Ct. 2003, 2007 (2017) (per curiam); see also Brown v. Callahan,\\n623 F.3d 249, 253 (“An official’s actions must be judged in light of the\\ncircumstances that confronted him, without the benefit of hindsight.” (citing\\nGraham v. Connor, 490 U.S. 386, 396–97 (1989))). Despite the many “red flags”\\nlisted by the dissents as known to others, only those known to Hunter and\\nCassidy are relevant to the qualified immunity analysis.\\n Judge Jones’s dissent fares no better in addressing some of the key facts\\nof the shooting itself. Contrary to its assertion, the district court found that\\nRyan was facing at a 90-degree angle away from the officers when he was first\\nshot. Cole, 68 F. Supp. 3d at 644. As for the “warning,” the district court found\\nthat a reasonable jury could conclude that Ryan “was not given an opportunity\\nto disarm himself before he was shot.” Id. Relitigating the district court’s\\nassessment of factual disputes is not our role on interlocutory review.\\n What Hunter and Cassidy knew before shooting at Ryan, whether they\\nwarned him before doing so, and what actions Ryan took before being shot are\\nall disputed. The district court must afford Cassidy and Hunter qualified\\nimmunity at the earliest point the defense’s applicability is determinable.\\nHere, we have not yet reached that point. It will be for a jury to resolve what\\n\\n\\n\\n\\n 21\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhappened on October 25, 2010. The district court did not err in denying the\\nofficers qualified immunity at the summary judgment stage.\\n III\\n The district court determined that genuine disputes of fact regarding\\nCassidy’s and Hunter’s entitlement to qualified immunity remain. We\\nAFFIRM the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim and DISMISS Cassidy and Hunter’s appeal; AFFIRM\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-\\ncharges claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims; and return the case to\\nthe district court for trial and resolution of issues consistent with this opinion.\\n\\n\\n\\n\\n 22\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nJENNIFER WALKER ELROD, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and EDITH BROWN CLEMENT, CATHARINA HAYNES,\\nSTEPHEN A. HIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT,\"}, {\"author\": \"Circuit Judges, concurring\", \"type\": \"concurrence\", \"text\": \"Circuit Judges, concurring:\\n\\n\\n I concur fully in the majority opinion. Despite the outcry of the\\ndissenting opinions, there is no new law being made or old law being ignored.\\nThe majority opinion takes no position on the public policy issues of the day\\nregarding policing and the mentally ill. Rather, it follows the longstanding en\\nbanc rule that “we lack jurisdiction to review the genuineness of a fact issue”\\non an interlocutory appeal of a denial of summary judgment based on qualified\\nimmunity. Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc)\\n(quoting Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016)); Kinney v. Weaver,\\n367 F.3d 337, 341, 346–47 (5th Cir. 2004) (en banc). As the able district court\\ndetermined, the facts are very much in dispute.\\n\\n\\n\\n\\n 23\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nEDITH H. JONES, Circuit Judge, joined by SMITH, OWEN, HO, DUNCAN\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431626/\", \"author_raw\": \"Circuit Judges, concurring\"}, {\"author\": \"and OLDHAM, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"and OLDHAM, Circuit Judges, dissenting:\\n\\n\\n What “clearly established law” says that only a rogue cop would have\\nshot at this mentally disturbed teenager within 3 to 5 seconds as the teen\\nemerged from dense bushes ten to twenty feet away from Officer Hunter and,\\nwith his finger on the trigger of a loaded pistol pointed in the direction of his\\nown head, began turning in the officer’s direction? The majority state this is\\nan “obvious case” for the denial of qualified immunity: the officers could not\\nshoot without first announcing themselves to Cole or looking down the barrel\\nof his gun. What is so obvious? Contrary to the majority’s dangerously\\nunrealistic proposition, “action beats reaction” every time. Ontiveros v. City of\\nRosenberg, 564 F.3d 379, 384 (5th Cir. 2009). Neither we nor the Supreme\\nCourt has ever held that police officers confronted in close quarters with a\\nsuspect armed and ready to shoot must hope they are faster on the draw and\\nmore accurate. The increasingly risky profession of law enforcement cannot\\nput those sworn to “serve and protect” to a Hobson’s choice: place their lives on\\nthe line by heroic forbearance or risk their financial security in defense of\\nlawsuits. The Supreme Court has repeatedly stated in plain terms that the\\npurpose of qualified immunity is to prevent precisely this quandary.\\n Respectfully dissenting, we are convinced that the Supreme Court’s\\nremand from the original panel opinion denying immunity meant something;\\nthe governing Supreme Court law is foursquare in the corner of\\n\\n\\n\\n\\n 24\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nOfficers Hunter and Cassidy; and they were entitled to receive summary\\njudgment confirming their immunity from suit, not simply from liability. 1\\n I. Background\\n A. Undisputed facts\\n The majority opinion paints a picture of the relevant facts that has\\nevolved considerably from the first and second panel opinions to this final\\nmajority version. Compare Cole v. Carson, 802 F.3d 752, 755-56, 758 (5th Cir.\\n2015), vacated sub nom. Hunter v. Cole, 137 S. Ct. 497 (Cole I), with Cole v.\\nCarson, 905 F.3d 334, 337-340 (5th Cir. 2018) (Cole II), and supra. Qualified\\nimmunity for the use of deadly force is assessed at the moment a law\\nenforcement officer confronts a suspect, Graham v. Connor, 490 U.S. 386, 397,\\n109 S. Ct. 1865, 1872 (1989), but the officer’s understanding of facts leading up\\nto the event color the question whether “a reasonable officer” could have\\nbelieved his life or the lives of others were endangered. White v. Pauly,\\n137 S. Ct. 548, 550, 552 (2017). To the majority’s picture, it is necessary to add\\nundisputed facts recited in the prior opinions and undisputed evidence from\\nplaintiffs’ experts. Hornbook summary judgment law holds that although\\ndisputed facts are viewed in the light most favorable to non-movants, the entire\\nrecord must be considered. Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769,\\n1776 (2007). Further, this court reviews de novo the materiality of the relevant\\nfacts. Foley v. Univ. of Houston, Sys., 355 F.3d 333, 337 (5th Cir. 2003).\\n\\n\\n\\n\\n 1 We do not challenge the majority’s decision to leave in place fabricated evidence\\ncharges against these two officers and Officer Carson. Only Carson, who was present at the\\nencounter but did not shoot, appealed the district court’s refusal to dismiss that claim. The\\nSupreme Court has not been clear on the constitutional basis for such a claim, so we have no\\nground to criticize the majority. Compare Manuel v. City of Joliet, 137 S. Ct. 911 (2017), with\\nMcDonough v. Smith, 139 S. Ct. 2149 (2019), (refusing to rule on the constitutional grounding\\nof such claims).\\n\\n 25\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n First, both officers who shot at Cole were aware that he had mental\\nissues. Officer Cassidy had learned that Cole “had threatened to shoot anyone\\nwho tried to take his gun and had refused an order to drop his weapon.” Cole\\nII, 905 F.3d at 338. Officer Hunter watched Cole walk steadily down the train\\ntracks ignoring other police who were yelling at him to stop and put down his\\n9 mm semi-automatic pistol. Both officers were aware that a bulletin had been\\ndisseminated about Cole to all law enforcement in Garland and Sachse, and\\nthree nearby schools in the vicinity of Highway 78, where Cole was heading,\\nwere being protected. Cole II, 905 F.3d at 337-38.\\n Second, Cole emerged from the vegetation, unaware of the officers’\\npresence, within ten to twenty feet of Officer Hunter, and as he turned toward\\nthe officers, three to five seconds elapsed. That’s less time than it takes to read\\nthe preceding sentence. Cole initially stood at a 90 degree angle to the police\\nand then began turning counterclockwise toward them. His movement is\\nconceded by plaintiffs’ expert, supported by the ballistic evidence, and\\nrecounted in the district court opinion. Cole II, 905 F.3d at 338 (“Cole began\\nto turn counterclockwise.”). Plaintiff’s expert opines this interval was\\nsufficient for the officers to command Cole to disarm and observe his reaction.\\n Third, his loaded pistol was pointed within thirty inches toward his head,\\nCole I, 802 F.3d at 756, and Cole’s finger was on the trigger.\\n Next, the officers fired seven shots, two of which hit Cole.\\nOfficer Hunter’s first shot hit Cole in the left arm, penetrating his body from\\nthe left. Another of Hunter’s shots merely grazed Cole’s left arm as he\\ncontinued to turn and was facing Hunter. Cole II, 905 F.3d at 339. Cole’s gun,\\naccording to the plaintiffs, involuntarily discharged and hit him in the head,\\n“leaving stippling—gunpowder residue around the wound due to the gun being\\nfired from less than thirty inches away.” Cole I, 802 F.3d at 756.\\n\\n\\n 26\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Finally, the bodycam evidence shows that some officer began to issue a\\nwarning at about the time the shooting started. Cole II, 905 F.3d at 338.\\n B. Prior panel reasoning\\n The district court denied qualified immunity to Hunter and Cassidy for\\nthe shooting 2 and refused to dismiss the allegations of falsified evidence\\nagainst Hunter, Cassidy, and Carson.\\n The original panel opinion affirmed, 3 concluding as to the excessive force\\nallegation that “if the Coles’ version of the evidence is believed, it was not\\nobjectively reasonable to use deadly force against Ryan Cole when the teenager\\nemerged on foot from the wooded area with a gun to his own head and turned\\nleft.” With regard to immunity, the panel held that by October 2010,\\n“reasonable officers were on notice that they could not lawfully use deadly force\\nto stop a fleeing person who did not pose a severe and immediate risk to the\\nofficers or others, and they had many examples of the sorts of threatening\\nactions which could justify deadly force. Turning left while unaware of an\\nofficer’s presence is not among them.” Cole I, 802 F.3d at 762 (emphasis added)\\n(footnote omitted). The panel’s principal support for its legal reasoning was\\nLuna v. Mullenix, 773 F.3d 712 (5th Cir. 2014), rev’d sub nom. Mullenix v.\\nLuna, 136 S. Ct. 305 (2015). According to the panel, “the central [disputed]\\nissue” is “whether Ryan pointed his gun at Officer Hunter.” Cole I, 802 F.3d\\n\\n\\n\\n\\n Query why Officer Cassidy, whose shots didn’t hit the victim, can be sued? This\\n 2\\n\\ncourt has held that qualified immunity must be applied individually to each defendant.\\nMeadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007). But no one raised the point here.\\n\\n The correct disposition if this court agrees there are material fact issues in dispute\\n 3\\n\\nregarding qualified immunity would be to dismiss the appeal, because our appellate\\njurisdiction exists only over questions of law. Mitchell v. Forsyth, 472 U.S. 511, 529-30,\\n105 S. Ct. 2806, 2816-17 (1985).\\n\\n 27\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nat 762. Absent such a threatening gesture, Cole was said to present no\\nsufficient threat. Id.\\n The next panel opinion was formulated after the Supreme Court\\nreversed us in Mullenix on the grounds that “none of our [the Supreme Court’s\\nown] precedents ‘squarely governs’ the facts here. Given [the suspect’s]\\nconduct, we cannot say that only someone ‘plainly incompetent’ or who\\n‘knowingly violate[s] the law’ would have perceived a sufficient threat and\\nacted as [the officer] did.” 136 S. Ct. at 310. On this second go-round, the panel\\nconceded the deficiency of the “no sufficient threat” rule, but then concluded\\nthat, taken in the light most favorable to the plaintiffs, Cole’s conduct posed\\n“no threat” when he was shot, Cole II, 905 F.3d at 343, and the officers\\ntherefore violated a clearly established “no threat” rule. Tennessee v. Garner\\nis cited as the basis for this “bright line” rule. 4 471 U.S. 1, 105 S. Ct. 1694\\n(1985). This opinion was vacated by a vote to reconsider the case en banc.\\n C. The Current Majority Opinion\\n Pivoting yet again, the en banc majority opinion commences with a\\npaean to “the worker’s . . . right to the protection of a jury,” not even bothering\\nto cite Supreme Court authorities that explain why qualified immunity is\\nimmunity from suit, not just liability. The majority opinion omits or ignores\\nmaterial undisputed facts recited above—the knowledge of the officers, Cole’s\\nturning toward them, the significance of his finger in a loaded pistol, and the\\n\\n\\n\\n\\n 4The panel curiously described so-called clearly established law in both of its opinions\\nwith references to unpublished, non-precedential Fifth Circuit cases. The Supreme Court\\nhas expressed uncertainty over whether any circuit court cases, as opposed to its own\\ndecisions, may set out “clearly established law.” See Dist. of Columbia v. Wesby, 138 S. Ct.\\n577, 591 n. 8 (2018); Carroll v. Carman, 135 S. Ct. 348, 350 (2014); Reichle v. Howards,\\n566 U.S. 658, 665-66, 132 S. Ct. 2088, 2094 (2012). It is incredible that this court would cite\\nour avowedly non-precedential decisions for that purpose.\\n\\n 28\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthree to five second interval—and hides behind the assertion that, relevant to\\nqualified immunity, there are “genuine factual disputes as to Ryan’s and the\\nofficers’ conduct” such that a reasonable jury could find that Cole posed no\\n“immediate threat” to the officers or others. Two paragraphs later, asserting\\nthat Cole posed “no threat . . . to support firing without warning,” the majority\\ndeem this an “obvious case” for denial of immunity, because the “officers had\\ntime and opportunity to give a warning and yet chose to shoot first instead.”\\nThe “obvious case” rationale again derives, in the majority’s view, from Garner,\\nfortified only by one Fifth Circuit case and the Supreme Court’s decision in\\nKisela v Hughes. 5\\n DISCUSSION\\n The only legal question that needs to be addressed by this court is\\nwhether, under the circumstances of this five-second confrontation, every\\nreasonable police officer would have reasonably perceived no life-threatening\\ndanger such that deadly force could be used to incapacitate Cole without a\\npreliminary warning. Put otherwise, as a matter of law, was it clearly\\nestablished that officers may not fire on a suspect, armed and ready to shoot a\\npistol, who is turning in their direction with one of their brethren ten to twenty\\nfeet away, unless the gun barrel points at them or they first shout a warning\\nand await his response?\\n The majority deny qualified immunity, seeming to answer on the basis\\nof “disputed fact issues” that Cole posed “no threat.” The majority’s reasoning\\n\\n\\n\\n\\n 5 This dissent focuses on the majority opinion because Appellees’ briefing offered\\nnothing in addition to the meager authorities cited by the majority to support their “clearly\\nestablished law” theory.\\n\\n\\n\\n\\n 29\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nis at too high a level of generality. And the majority ignore the critical criterion\\nfor qualified immunity in Fourth Amendment cases: the reasonableness of the\\nofficers’ reasonable perceptions. In sum, the majority here double down on the\\nmistakes that got our court reversed in Mullenix. 6\\n Before discussing these problems in detail, it is necessary to recapitulate\\nthe reasoning behind the Supreme Court’s qualified immunity cases. The\\nmajority’s bare mention of the standards for qualified immunity ignores the\\nCourt’s rationale for the defense. Beginning with Monroe v. Pape in 1961, the\\nSupreme Court unleashed federal courts to enforce constitutional commands\\nagainst state actors pursuant to 42 U.S.C. § 1983. See Monroe v. Pape,\\n365 U.S. 167, 187, 81 S. Ct. 473, 484 (1961). A foreseeable consequence of\\nfacilitating such lawsuits was that a deluge of litigation would follow, at least\\nsome of it ill-founded or frivolous. What was to be done to limit claims to those\\nthat might have merit? The Court decided in Pierson v. Ray that police officers\\nsued under Section 1983 should enjoy qualified immunity accorded at common\\nlaw. 386 U.S. 547, 556-57, 87 S. Ct. 1213, 1219 (1967).\\n For over fifty years, the Court has developed the standards of qualified\\nimmunity, well aware from the beginning that “the local police officer” is “that\\nsegment of the executive branch . . . that is most frequently and intimately\\ninvolved in day-to-day contacts with the citizenry, and hence, most frequently\\nexposed to situations which can give rise to claims under Sec. 1983 . . . .”\\nScheuer v. Rhodes, 416 U.S. 232, 244-45, 94 S. Ct. 1683, 1691-92 (1974). The\\n\\n\\n\\n\\n 6 In Mullenix, the Supreme Court reversed this court and held an officer entitled as a\\nmatter of law to qualified immunity when he shot, and killed, a suspect fleeing from the police\\nin his car at high speed. Following Mullenix, the Supreme Court vacated the judgment and\\nremanded Cole I, no doubt in part because Cole I heavily relied on the reversed panel decision\\nin Mullenix.\\n\\n 30\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nbreadth of this shield represents a deliberate balance between affording a\\ndamages remedy for constitutional abuses and the social and personal costs\\ninflicted by meritless claims. Anderson v. Creighton, 483 U.S. 635, 638,\\n107 S. Ct. 3034, 3038 (1987). The costs to society include the costs of litigation,\\nthe diversion of limited public resources, the deterrence of able people from\\ngoing into public service, and the danger that fear of being sued will discourage\\nofficials from vigorously performing their jobs. Id.; Harlow v. Fitzgerald,\\n457 U.S. 800, 814, 102 S. Ct. 2727, 2736 (1982). The devastating costs imposed\\nby unfounded lawsuits on officers otherwise entitled to immunity are\\nreputational, potentially employment-related, financial and emotional. For\\nthese reasons, the Court has repeatedly explained that qualified immunity\\nshields public officials not just from liability but from suit. See Mitchell v.\\nForsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815 (1985); Pearson v. Callahan,\\n555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (“Qualified immunity is lost if a\\ncase is erroneously permitted to go to trial.”). Some in the lower federal courts\\nmay disapprove of the Court’s half century of authorities, but we may not\\nfunctionally disregard them.\\n Nearly as venerable as the general defense of qualified immunity are the\\ndecisions applying it to Fourth Amendment claims against law enforcement\\nofficers. Anderson v. Creighton affirmed in 1987 that a law enforcement officer\\nwho participates in a warrantless search may be entitled to qualified immunity\\n“if he could establish as a matter of law that a reasonable officer could have\\nbelieved the search to be lawful.” 483 U.S. at 638, 107 S. Ct. at 3038.\\nJustice Scalia’s opinion reminded that “qualified immunity protects all but the\\nplainly incompetent or those who knowingly violate the law.” Id. (internal\\nquotation marks omitted). In determining the objective legal reasonableness\\nof the allegedly unlawful action, “[i]t should not be surprising . . . that our cases\\n\\n\\n 31\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nestablish that the right the official is alleged to have violated must have been\\n‘clearly established’ in a more particularized, and hence more relevant, sense:\\nThe contours of the right must be sufficiently clear that a reasonable official\\nwould understand that what he is doing violates that right.” Id. at 640,\\n107 S. Ct. at 3039.\\n Two years later, the Court clarified that for alleged Fourth Amendment\\nexcessive force violations, reasonableness “must be judged from the perspective\\nof a reasonable officer on the scene, rather than with the 20/20 vision of\\nhindsight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872. The calculus of\\n“reasonableness must embody allowance for the fact that police officers are\\noften forced to make split-second judgments—in circumstances that are tense,\\nuncertain, and rapidly evolving—about the amount of force that is necessary\\nin a particular situation.” Id. at 396-97, 109 S. Ct. at 1872. Ultimately, “the\\nquestion is whether the officers’ actions are ‘objectively reasonable’ in light of\\nthe facts and circumstances confronting them . . . .” Id. at 397, 109 S. Ct. at\\n1872. Quoting these statements from Graham, the Court later explained that\\nthe test for qualified immunity for excessive force “has a further dimension” in\\naddition to the deferential, on-the-scene evaluation of objective\\nreasonableness. Saucier v. Katz, 533 U.S. 194, 205, 121 S. Ct. 2151, 2158\\n(2001). Justice Kennedy explained: “The concern of the immunity inquiry is to\\nacknowledge that reasonable mistakes can be made as to the legal constraints\\non particular police conduct.” Id. “Qualified immunity operates in this case,\\nthen, just as it does in others, to protect officers from the sometimes hazy\\nborder between excessive and acceptable force and to ensure that before they\\nare subjected to suit, officers are on notice their conduct is unlawful.” Id. at\\n206, 121 S. Ct. at 2158 (internal citation and quotation marks omitted).\\n\\n\\n\\n\\n 32\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Evaluating the qualified immunity defense is thus a two-step process.\\nThe first is to determine whether the Fourth Amendment has been violated by\\nconduct that, viewed from the officer’s perspective and information at the time,\\nis objectively unreasonable. 7 The second step assesses the objective legal\\nreasonableness of the action, that is, whether every reasonable officer would\\nhave known that the conduct in question was illegal. See Pearson, 555 U.S. at\\n232, 129 S. Ct. at 815-16. The illegality must have been apparent, as held in\\ncases that are factually similar to the situation confronting the officer. White,\\n137 S. Ct. at 542. Immunity must be granted to all but the plainly incompetent\\nor those who knowingly violate the law. The Supreme Court has enforced\\nimmunity where officers acted negligently, Anderson, 483 U.S. at 641,\\n107 S. Ct. at 3039-40; or when they could have used another method to subdue\\na suspect, Mullenix, 136 S. Ct at 310; or when the law governing their behavior\\nin particular circumstances is unclear. White, 137 S. Ct. at 552. The Court\\nemphasizes that the specificity of the applicable “clearly established” rule is\\nespecially important in Fourth Amendment cases. Mullenix, 136 S. Ct. at 308.\\n By denying plaintiffs their “day in court” at a preliminary stage,\\nqualified immunity operates as a counterintuitive, albeit vital, defense. Thus,\\nthe Supreme Court has regularly reversed denials of qualified immunity where\\nlower courts misapplied the standards. See Wesby v. District of Columbia,\\n816 F.3d 96, 102 (D.C. Cir. 2016) (Kavanaugh, J., dissenting) (citing eleven\\nSupreme Court cases in five years reversing lower courts in the qualified\\nimmunity context including Mullenix v. Luna, 136 S. Ct. 305 (2015), Taylor v.\\n\\n\\n\\n\\n 7 For present purposes, we “address only the qualified immunity question, not whether\\nthere was a Fourth Amendment violation in the first place.” Mullenix, 136 S. Ct. at 308;\\nPearson, 555 U.S. at 236, 129 S. Ct. at 818 (constitutional violation or qualified immunity\\nmay be decided first).\\n\\n 33\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nBarkes, 135 S. Ct. 2042 (2015); City and County of San Francisco, Calif. v.\\nSheehan, 135 S. Ct. 1765 (2015); Carroll v. Carman, 574 U.S. 13, 135 S. Ct.\\n348 (2014); Plumhoff v. Rickard, 572 U.S. 765, 134 S. Ct. 2012 (2014); Wood v.\\nMoss, 572 U.S. 744, 134 S. Ct. 2056 (2014); Stanton v. Sims, 571 U.S. 3,\\n134 S. Ct. 3 (2013); Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 2088 (2012);\\nRyburn v. Huff, 565 U.S. 469, 132 S. Ct. 987 (2012); Messerschmidt v.\\nMillender, 565 U.S. 535, 132 S. Ct. 1235 (2012); Ashcroft v. al-Kidd, 563 U.S.\\n731, 131 S. Ct. 2074 (2011)). Unfortunately, the majority here has fallen into\\nthe trap of “letting the jury sort out the truth” despite the gravity of the\\nsituation these officers faced.\\n As explained above, it is undisputed that the two officers confronted and\\nthen shot at Cole as he emerged from dense bushes ten to twenty feet from\\nOfficer Hunter, unaware of their presence, and began to turn in their direction.\\nThis all happened within three to five seconds. While he turned, Cole held a\\nloaded 9mm semiautomatic pistol, finger on the trigger, pointed in the\\ndirection of his own head. The officers knew he was mentally distraught, had\\nignored other police commands to disarm, had issued threats, and proceeded\\nwalking in the direction of nearby schools.\\n For immunity purposes, the question phrased one way is whether any\\nreasonable officers could have believed that Cole’s split-second turning toward\\nthem posed a life-threatening danger such that lethal force was necessary.\\nAlternatively, what “clearly established law” held as of October 2010 that\\nunder all of the relevant circumstances, deadly force was not justified unless\\neither a warning was given and the suspect allowed a chance to react, or the\\nsuspect actually turned his loaded pistol on the officer? The answer here\\ndirectly parallels the Supreme Court’s reasoning in Mullenix, which the\\nmajority seriously shortchanged.\\n\\n\\n 34\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n In Mullenix, this court had denied qualified immunity to a trooper whose\\nshot fatally wounded a suspect fleeing police in a high-speed chase. The\\nSupreme Court’s basic criticism of the panel decision was this: “In this case,\\nthe Fifth Circuit held that Mullenix violated the clearly established rule that\\na police officer may not use deadly force against a fleeing felon who does not\\npose a sufficient threat of harm to the officer or others. Yet this Court has\\npreviously considered—and rejected—almost that exact formulation of the\\nqualified immunity question in the Fourth Amendment context.” Mullenix,\\n136 S. Ct. at 308-09 (internal quotation marks and citation omitted).\\n The majority here posit as clearly established law, indeed an “obvious\\ncase,” that a police officer may not use deadly force—without prior warning—\\nagainst an armed, distraught suspect who, with finger in the pistol’s trigger,\\nposed “no threat” while turning toward an officer ten to twenty feet away. But\\nin Mullenix, the Supreme Court reversed this court because “[t]he general\\nprinciple that deadly force requires a sufficient threat hardly settles this\\nmatter.” Id. at 309. Likewise, here, the majority’s “no threat” and “obvious\\ncase” conclusions do not settle the matter of clearly established law. 8\\n That the majority here purport to extract clearly established law from\\nTennessee v. Garner was rebuked in Mullenix. The Supreme Court corrected\\nthis court by summary reversal because the Court itself had summarily\\nrejected applying the general standard of Tennessee v. Garner to deny qualified\\nimmunity. Mullenix, 136 S. Ct. at 309 (citing Brosseau v. Haugen, 543 U.S.\\n194, 199, 125 S. Ct. 596, 599 (2004)). Instead, the “correct inquiry” was\\n\\n\\n\\n\\n 8 Worse, it treats as a disputed fact issue for immunity purposes what is clearly an\\nissue of law. See Wyatt v. Fletcher, 718 F.3d 496, 502-03 (5th Cir. 2013).\\n\\n\\n 35\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nwhether it was clearly established that the Fourth Amendment prohibited the\\nofficer’s conduct in the precise situation she confronted. Id. Including\\nMullenix and Brosseau, a series of Supreme Court cases has held that\\nTennessee v. Garner does not state “clearly established law” governing the use\\nof deadly force other than in Garner’s precise factual context, the shooting of\\nan unarmed burglary suspect fleeing away from an officer. 9 The confrontation\\nin this case with an armed, ready-to-fire suspect is “obviously” different.\\n We fail to understand how the denial of qualified immunity to Officers\\nHunter and Cassidy can be rescued simply by intoning that this is an “obvious\\ncase” under Garner. Garner affirmed the constitutionality of deadly force\\nagainst suspects when necessary to protect the life of officers or others “if,\\nwhere feasible, some warning has been given.” 471 U.S. at 11-12, 105 S. Ct. at\\n1701. 10 But Garner in no way renders “clearly established” a requirement to\\ngive a warning, and await the suspect’s response, before shooting. Nor does it\\nmandate that the suspect’s weapon be trained on the officer or others. Like\\nthe rest of the calculus surrounding Fourth Amendment reasonableness, the\\n“feasibility” of any such potentially deadly delay or factual nuance must be\\nsubjected to case-specific balancing with deference paid to the officer’s\\nreasonable perceptions in the midst of a tense situation. Graham, 490 U.S. at\\n396, 109 S. Ct. at 1872. Indeed, in describing its holding at the outset, Garner\\nstates only that “[deadly] force may not be used unless it is necessary to\\nprevent the escape [of an apparently unarmed suspected felon] and the officer\\n\\n\\n\\n\\n 9 Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018); White, 137 S. Ct. at 552.\\n\\n 10 Turning on distinctly different facts, Garner alone does not establish pertinent\\nclearly established law here, and the majority does not contend as much.\\n\\n\\n\\n\\n 36\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhas probable cause to believe that the suspect poses a significant threat of\\ndeath or serious physical injury to the officer or others.” 471 U.S. at 3,\\n105 S. Ct. at 1697. 11 No mention of a warning appears in this introduction,\\nand “probable cause,” not a fact-specific test, is the measure of the threat of\\nharm.\\n Characterizing this case as a “no threat” or “obvious” Fourth Amendment\\nviolation is wrong for additional reasons. Whether, under the material\\nundisputed facts, Cole presented “no threat” to a reasonable police officer is\\nthe relevant issue to assess a Fourth Amendment violation. But the immunity\\nquestion, which the majority elides, is whether every reasonable officer in this\\nfactual context would have known he could not use deadly force. See Pearson,\\n555 U.S. at 232, 129 S. Ct. at 815-816. The majority’s analysis conflates these\\ninquiries. Second, the importance of grounding the inquiry in a specific factual\\ncontext cannot be overstated. In this case, if Officer Hunter had stood a\\nhundred feet away from Cole, or Cole had not been turning toward the officers,\\nor Cole had put the handgun in his pocket and wasn’t touching it, the analysis\\nof qualified immunity could be quite different. Third, describing a situation as\\nposing “no threat” is a conclusion, not an explanation or, as the majority seems\\nto think, an exception to defining clearly established law in a specific context.\\nNo doubt there are rare “obvious” cases of Fourth Amendment violations\\n\\n\\n\\n\\n 11 The majority cites Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997), for the\\nnecessity of giving a warning “where feasible” before the use of deadly force. Oddly, Colston\\nthen immediately holds that the officer there “lying on his back with Colston nearby, had to\\nimmediately decide whether to shoot. In light of the totality of the circumstances facing\\nBarnhart, Barnhart’s failure to give a warning was not objectively unreasonable.” Id. The\\nfeasibility of a warning is part of the overall Fourth Amendment analysis, not an independent\\nsine qua non of official conduct.\\n\\n\\n\\n\\n 37\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncommitted by officers who are plainly incompetent or who knowingly violate\\nthe law. In the wide gap between acceptable and excessive uses of force,\\nhowever, immunity serves its important purpose of encouraging officers to\\nenforce the law, in “tense, uncertain and rapidly evolving” split-second\\nsituations, rather than stand down and jeopardize community safety. 12\\n In their sole, erroneous dependence on Garner, the majority, “can cite no\\ncase from [the Supreme] Court denying qualified immunity because officers\\n[entitled to apprehend Cole] selected one dangerous alternative over another.”\\nMullenix, 136 S. Ct. at 310. The Mullenix Court showed that if anything,\\n“clearly established law” was contrary to the plaintiff’s position. The Court\\ncited two prior Supreme Court car chase cases that resulted in immunity even\\nthough the fugitives—unlike the suspect in Mullenix—had not verbally\\nthreatened to kill any officers in their path. Id. at 310 (citing Scott, 550 U.S.\\nat 384, 127 S. Ct. at 1778; Plumhoff, 572 U.S. at 777, 134 S. Ct at 2022). And\\nin Mullenix itself, as here, the trooper had not warned the fugitive before\\nshooting at his speeding car. These cases “reveal[ed] the hazy legal backdrop\\nagainst which Mullenix acted,” Id. at 309. Accordingly, the Court admonished,\\n“[w]hatever can be said of the wisdom of Mullenix’s choice, this Court’s\\nprecedents do not place the conclusion that he acted unreasonably in these\\ncircumstances beyond debate.” Id. at 311 (internal quotation marks omitted).\\n Not only do the majority cite “no case” in which the Supreme Court\\ndenied qualified immunity to an officer who used deadly force against a\\n\\n\\n\\n\\n 12Compare Wesby, 138 S. Ct. at 590 (“Of course, there can be the rare obvious case,\\nwhere the unlawfulness of the officer’s conduct is sufficiently clear even though existing\\nprecedent does not address similar circumstances. But a body of relevant case law is usually\\nnecessary to clearly establish the answer with respect to probable cause.”) (internal citation\\nand quotation marks omitted).\\n\\n 38\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nmentally distraught individual in circumstances like the present case, but to\\nthe contrary, the Court required qualified immunity in two somewhat similar\\ncases. In Sheehan, officers used deadly force to subdue a mentally ill woman\\nduring an armed confrontation. The Court restated that the Fourth\\nAmendment is not violated even if police officers, with the benefit of hindsight,\\nmay have made some mistakes, because “[t]he Constitution is not blind to ‘the\\nfact that police officers are often forced to make split-second judgments.’”\\nSheehan, 135 S. Ct. at 1775 (quoting Plumhoff, 572 U.S. at 775, 134 S. Ct. at\\n2020).\\n Even closer to this case is White v. Pauly, where an officer arriving at the\\nscene of an armed confrontation shot and killed a suspect without knowing\\nwhether his earlier-arrived colleagues had identified themselves as police.\\n137 S. Ct. at 550-51. In White, the Court chastised the lower court for\\n“misunderst[anding]” the “clearly established” analysis by relying on the\\ngeneralized pronouncements in Graham and Garner. Id. at 552. Whether\\nOfficer White should have second-guessed the preceding conduct of fellow\\nofficers hardly presented an “obvious case” pursuant to Garner. The Court\\nspeculated that perhaps, given the three-minute delay between when he\\narrived and when shots rang out, Officer White “should have realized that [a\\nwarning about police presence] was necessary before using deadly force.” Id.\\nThere is a world of difference between three minutes and three seconds, which\\nOfficer Hunter had here, and between Officer White’s securing himself behind\\na stone wall fifty feet from the suspect and Officer Hunter’s standing fully\\nexposed only ten to twenty feet away from Cole. The majority cannot reconcile\\nthe Supreme Court’s insistence upon qualified immunity in White with their\\ndenial of the defense to Officers Hunter and Cassidy.\\n\\n\\n\\n\\n 39\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Kisela v. Hughes, cited in support of the majority, in no way articulates\\nclearly established law concerning the necessity of a warning. First, the Court\\nin Kisela overturned the Ninth Circuit’s denial of qualified immunity without\\naddressing the preliminary Fourth Amendment violation. 138 S. Ct. at 1152.\\nA decision holding only that there was no “clearly established law” cannot itself\\nhave defined “clearly established law.” The Court also criticized the Ninth\\nCircuit for failing to implement correctly the rule that an officer has not\\n“violated a clearly established right unless the right’s contours were\\nsufficiently definite that any reasonable official in the defendant’s shoes would\\nhave understood that he was violating it.” Id. at 1153 (internal quotation\\nmarks omitted). The Court catalogued all the relevant circumstances of the\\nconfrontation that provoked the shooting: a knife-armed, threatening suspect,\\nwhose bizarre behavior had been called in to 911, disobeyed officers’ commands\\nto disarm for up to one minute before they felt compelled to shoot. Id. The\\nCourt concluded, “[t]his is far from an obvious case in which any competent\\nofficer would have known that shooting Hughes to protect [the third party]\\nwould violate the Fourth Amendment.” Id. Also “far from obvious” is the case\\nbefore us, in which the officers had five seconds, not a whole minute, in which\\nto decide whether to shoot at Cole.\\n Finally, the Supreme Court’s decision in Tolan v. Cotton adds nothing to\\nthe substance of the qualified immunity discussion. In Tolan, the Court\\nenumerated four critical, disputed evidentiary contentions relating to the\\nofficer’s perception of danger to himself and thus to qualified immunity.\\n572 U.S. 650, 657-59, 134 S. Ct. 1861, 1866-67 (2014). Because this court had\\nfailed to credit the plaintiff’s disputed version of these facts, the Court vacated\\nsummary judgment for the officer and remanded without deciding any merits\\n\\n\\n\\n\\n 40\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nissue. Id. at 657, 134 S. Ct. at 1866. In contrast, this dissent credits only\\nundisputed material facts and plaintiffs’ version of disputable facts.\\n Like this court’s panel in Mullenix, the majority here offer no controlling\\nSupreme Court precedent, including Garner, to support that “clearly\\nestablished law” mandated that the officers hold their fire until they had both\\nwarned Cole and given him a chance to drop his gun or until he pointed the\\nloaded weapon directly at them.\\n For good measure, the Mullenix Court also considered the potential\\nsimilarity of lower court decisions that dealt with qualified immunity.\\n136 S. Ct. at 311. Fifth Circuit case law, the Court noted, did not “clearly\\ndictate the conclusion that Mullenix was unjustified in perceiving grave danger\\nand responding accordingly.” Id. at 311 (citing Lytle v. Bexar County, 560 F.3d\\n404, 412 (5th Cir. 2009)). But the Court quoted with approval an Eleventh\\nCircuit case that granted immunity to a sheriff’s deputy who fatally shot a\\nmentally unstable individual “who was attempting to flee in the deputy’s car,\\neven though at the time of the shooting the individual had not yet operated the\\ncruiser dangerously. The court explained that ‘the law does not require officers\\nin a tense and dangerous situation to wait until the moment a suspect uses a\\ndeadly weapon to act to stop the suspect…’” Id. at 311 (quoting Long v. Slaton,\\n508 F.3d 576, 581-82 (11th Cir. 2007)). Here, too, the thrust of Mullenix\\ncontradicts the majority’s logic and holding.\\n Moreover, to the extent it is relevant 13, Fifth Circuit law does not support\\ndenying qualified immunity to Officers Hunter and Cassidy. The district court\\n\\n\\n\\n\\n 13 See fn. 4, supra.\\n\\n\\n\\n\\n 41\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nand, inferentially, the majority demand that qualified immunity be granted\\nonly if the suspect either disobeys immediate commands to disarm or points\\nhis weapon at the officers. The district court described such threatening\\nactions as a Manis act. 14 It is true that in previous deadly force cases, this\\ncourt approved qualified immunity for officers who reasonably believed that a\\nnon-compliant suspect was reaching toward where he could retrieve a weapon.\\nSee Manis, 585 F.3d at 842; see also Reese v. Anderson, 926 F.2d 494, 500-01\\n(5th Cir. 1991); Young v. City of Killeen, Tx., 775 F.2d 1349, 1352 (5th Cir.\\n1985). The hitch in these particular cases is that there wasn’t actually a\\nweapon, yet the officer’s objectively reasonable perception was determinative\\nas a matter of law. In another such officer shooting case, this court upheld\\nqualified immunity where the suspect, who was being interrogated for drunk\\ndriving at the side of a freeway, turned to walk away from the officer, then\\nappeared to turn around toward him while reaching under his shirttail for\\nwhat the officer thought could be a concealed weapon. Salazar-Limon v. City\\nof Houston, 826 F.3d 272, 278 (5th Cir. 2016). This court added,\\n“[f]urthermore, …in the context of this case, it is immaterial whether Salazar\\nturned left, right, or at all before being shot. Specifically, we have never\\nrequired officers to wait until a defendant turns toward them, with weapon in\\nhand, before applying deadly force to ensure their safety.” 826 F.3d at 279 n.\\n6.\\n While a “Manis act” can sustain qualified immunity even where no\\nweapon is visible, it is not logical for an additional “act” to be mandated where\\nthe officers confront a suspect armed, ready to shoot his pistol, and turning\\ntoward them. An officer may be forced into shooting an unarmed suspect by a\\n\\n\\n\\n\\n 14 Manis v. Lawson, 585 F.3d 839 (5th Cir. 2009).\\n\\n 42\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nManis act, and thus obtain qualified immunity. But it is perverse and\\ninconsistent with Fifth Circuit law to hold that the officer has no qualified\\nimmunity because she is constitutionally forbidden to shoot an armed suspect\\nin close quarters without either looking down the barrel of the weapon or\\nawaiting his response to her command.\\n In fact, that is exactly what this court has not held. In Ramirez v.\\nKnoulton, 542 F.3d 124, 127 (5th Cir. 2008), police shot a suspect they believed\\nto be suicidal as he stood in profile to them, with a handgun in his right hand,\\nand brought his hands together in front of his waist.” He “never raised his\\nweapon nor aimed it at the officers.” Id. at 129. The court held that based on\\nthe officers’ reasonable perception, no Fourth Amendment violation occurred,\\nbecause the Constitution “does not require police officers to wait until a suspect\\nshoots to confirm that a serious threat of harm exists.” Id. at 130. See also\\nColston, 130 F.3d at 100; Ontiveros, 564 F.3d at 385 (holding no constitutional\\nviolation where officer thought suspect was reaching into his boot for a weapon\\nduring confrontation in a mobile home). As the Supreme Court put it in\\nMullenix, “the mere fact that courts have approved deadly force in more\\nextreme circumstances says little, if anything, about whether such force was\\nreasonable in the circumstances here.” 136 S. Ct. at 312.\\n The majority describe only one Fifth Circuit police shooting case, out of\\ndozens this court has decided, as an “obvious case.” Baker v. Putnal, 75 F.3d\\n190 (5th Cir. 1996). Whether that characterization applies to the claimed\\nFourth Amendment violation in Baker, to qualified immunity analysis, or\\nsimply to this court’s decision to remand for trial is unclear in the majority\\nopinion. Baker, however, says nothing about the merits of the case or about\\nclearly established law, holding instead that “[t]here are simply too many\\nfactual issues to permit the Bakers’ § 1983 claims to be disposed of on summary\\n\\n\\n 43\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment.” Baker, 75 F.3d at 198. Hence, like Kisela, Baker cannot support\\nany rule of clearly established law, much less explain what law is “obvious.”\\nSignificantly, in Baker, whether the suspect was holding a gun visible to the\\nofficer was an important hotly contested issue, with eyewitnesses contradicting\\nthe officer’s account of the incident. Baker, 75 F.3d at 198. Cole’s case, in\\ncontrast, does not involve a “chaos on the beach” incident. The undisputed\\nfacts are starkly different here. It is undisputed, at a minimum, that Cole was\\nholding a loaded weapon, his finger in the trigger, as he emerged from the\\nwoods; he was turning toward the officers; and they had five seconds to react.\\nBaker does not show that the officers’ conduct in Cole violated clearly\\nestablished law.\\n To sum up, the majority opinion here repeats every error identified by\\nthe Supreme Court when it granted summary reversal in Mullenix and sent\\nthe instant case back for reconsideration. The majority’s “clearly established”\\nrule has changed, but not its errors. Tennessee v. Garner does not formulate\\n“clearly established law” with the degree of specificity required by the Supreme\\nCourt’s decisions on qualified immunity. The majority’s “no threat” and\\n“obvious case” statements pose the issues here at an excessive level of\\ngenerality. The majority has no Supreme Court case law demonstrating that\\nOfficers Hunter and Cassidy were either plainly incompetent or had to know\\nthat shooting at Cole was unconstitutional under the circumstances before\\nthem and with the knowledge they possessed—he was mentally distraught; he\\nwas armed with his finger in the pistol’s trigger; he was very close to Hunter;\\nhe had been walking in the direction of schools for which extra police protection\\nhad been ordered; and he had ignored other officers’ commands to stop and\\ndrop his weapon. And they had three to five seconds to decide how dangerous\\nhe could be to them. The majority cites not one case from this court denying\\n\\n\\n 44\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nqualified immunity under similar circumstances. Mullenix aptly summed it\\nup for our purposes: “qualified immunity protects actions in the hazy border\\nbetween excessive and acceptable force.” 136 S. Ct. at 312 (internal quotation\\nmarks omitted). “[T]he constitutional rule applied by the Fifth Circuit was not\\n‘beyond debate.’” Id.\\n It is not “clearly established” that police officers confronting armed,\\nmentally disturbed suspects in close quarters must invariably stand down\\nuntil they have issued a warning and awaited the suspects’ reaction or are\\nfacing the barrel of a gun. “This was not a belief in possible harm, but a belief\\nin certain harm. The fact that they would later discover this to be a mistaken\\nbelief does not alter the fact that it was objectively reasonable for them to\\nbelieve in the certainty of that risk at that time.” Carnaby v. City of Houston,\\n636 F.3d 183, 188 n.4 (5th Cir. 2011). That is the law in the Fifth Circuit, and\\nthe majority has pointed to no clearly established law otherwise. Shooting at\\nCole may not have been the wisest choice under these pressing circumstances,\\nbut the officers’ decision, even if assailable, was at most negligent. Hunter and\\nCassidy were neither plainly incompetent nor themselves lawbreakers. While\\nwe are confident a jury will vindicate their actions, they deserved qualified\\nimmunity as a matter of law. We dissent.\\n\\n\\n\\n\\n 45\\n\\n No. 14-10228 c/w No. 15-10045\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431626/\", \"author_raw\": \"and OLDHAM, Circuit Judges, dissenting\"}, {\"author\": \"JERRY E. SMITH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JERRY E. SMITH, Circuit Judge, dissenting:\\n\\n This is a “red flag” case if ever there was one. The en banc majority\\ncommits grave error, as carefully explained in the dissents by Judge Jones,\\nJudge Willett, Judges Ho and Oldham (jointly), and Judge Duncan. Yet eleven\\njudges join the majority.\\n\\n Abandon hope, all ye who enter Texas, Louisiana, or Mississippi as peace\\nofficers with only a few seconds to react to dangerous confrontations with\\nthreatening and well-armed potential killers. In light of today’s ruling and the\\nraw count of judges, 1 there is little chance that, any time soon, the Fifth Circuit\\nwill confer the qualified-immunity protection that heretofore-settled Supreme\\nCourt and Fifth Circuit caselaw requires.\\n\\n Red flags abound. Judge Duncan cogently details the “rich vein of facts”\\ndescribing this plaintiff’s undisputed actions in the hours leading up to the\\nshooting. 2\\n\\n • Red flag: a 9mm semi-automatic handgun and ammunition.\\n • Red flag: a double-barrel shotgun with shells.\\n • Red flag: a .44 magnum revolver.\\n • Red flag: a .38 revolver.\\n • Red flag: a suspect who had broken into a gun safe and stolen\\n an unknown quantity of weapons and ammunition.\\n • Red flag: a police visit the night before to the suspect’s house\\n because of a disturbance with his parents.\\n\\n\\n\\n\\n 1This en banc court consists of the sixteen active judges, plus two senior judges who\\nwere on the original panel. Of those sixteen active judges, nine join the majority opinion.\\n 2I especially refer the reader to Part I of Judge Duncan’s dissent, which sets forth the\\ncontext and narrative of red-flag facts that easily justify qualified immunity. All three dis-\\nsents persuasively explain the law of qualified immunity that the majority overlooks.\\n\\n 46\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n • Red flag: a suspect with a dangerous knife at his parents’\\n house.\\n • Red flag: a suspect who had a wild look in his eye and was\\n smoking K2.\\n • Red flag: a suspect, distraught over breaking up with his girl-\\n friend, moving toward the school where she was a student.\\n • Red flag: a suspect near an elementary school.\\n • Red flag: a suspect with personal issues including drug abuse.\\n • Red flag: a suspect seen running through the woods with at\\n least three weapons.\\n • Red flag: a suspect irate and distraught.\\n • Red flag: a suspect who said he would shoot anyone who came\\n near him.\\n • Red flag: a suspect armed with at least one handgun and pos-\\n sibly three.\\n • Red flag: a suspect who had refused police demands to drop his\\n weapon.\\n • Red flag: a suspect who deposited a cache of weapons and am-\\n munition at a friend’s house after arguing with his parents.\\n • Red flag: a suspect who yelled obscenities at an officer.\\n • Red flag: a suspect who had threatened to kill his girlfriend\\n and himself.\\n • Red flag: a suspect whom the district court described as\\n troubled.\\n • Red flag: a suspect described in his complaint as suffering from\\n obsessive compulsive disorder, treated with medications from\\n numerous medical professionals, and having poor judgment and\\n impaired impulse control.\\n\\n * * * * *\\n\\n\\n Normally we expect police officers to recognize such red flags and to\\nrespond appropriately. Instead of protecting these officers from obvious dan-\\nger to themselves and the public, however, the en banc majority orders them\\n\\n 47\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nto stand down. What is the hapless officer to do in the face of today’s decision?\\nWhat indeed is the “clearly established law” that the majority now announces?\\nThe judges in the majority do not say.\\n\\n The law of qualified immunity was poignantly summarized in 2019 by a\\ndissenting judge who is now in the majority. Today’s en banc ruling turns\\nthose words to dust. 3\\n\\n I respectfully dissent.\\n\\n\\n\\n\\n 3 Winzer v. Kaufman Cty., 916 F.3d 464, 482 (5th Cir. 2019) (Clement, J., dissenting),\\npetition for rehearing en banc pending:\\n The implications of the majority’s mistakes cannot be minimized.\\n The majority decides that qualified immunity can be endangered by an\\n affidavit filed at summary judgment that creates a fact issue nowhere else\\n supported by record evidence.\\n Worse still, it seriously undermines officers’ ability to trust their\\n judgment during those split seconds when they must decide whether to use\\n lethal force. Qualified immunity is designed to respect that judgment,\\n requiring us to second-guess only when it clearly violates the law. The\\n standard acknowledges that we judges—mercifully—never face that split\\n second. Indeed, we never have to decide anything without deliberation—let\\n alone whether we must end one person’s life to preserve our own or the lives of\\n those around us.\\n The qualified immunity standard stops this privilege from blinding\\n our judgment, preventing us from pretending we can place ourselves in the\\n officers’ position based on a cold appellate record. It prevents us from\\n hubristically declaring what an officer should have done—as if we can expect\\n calm calculation in the midst of chaos.\\n The majority opinion, written from the comfort of courthouse\\n chambers, ignores that deference. Instead, it warns officers that they cannot\\n trust what they see; they cannot trust what their fellow officers observe; they\\n cannot trust themselves when posed with a credible threat. It instructs them,\\n in that pivotal split second, to wait. But when a split second is all you have,\\n waiting itself is a decision—one that may bring disastrous consequences.\\n\\n 48\\n\\n No. 14-10228 c/w No. 15-10045\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431626/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge, dissenting\"}, {\"author\": \"DON R. WILLETT, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"DON R. WILLETT, Circuit Judge, dissenting:\\n\\n I repeat what I said last month: The entrenched, judge-invented\\nqualified immunity regime ought not be immune from thoughtful reappraisal. 1\\n Qualified immunity strikes an uneasy, cost–benefit balance between two\\ncompeting deterrence concerns: “the need to hold public officials accountable\\nwhen they exercise power irresponsibly and the need to shield officials from\\nharassment, distraction, and liability when they perform their duties\\nreasonably.” 2 By insulating incaution, the doctrine formalizes a rights–\\nremedies gap through which untold constitutional violations slip unchecked.\\nThe real-world functioning of modern immunity practice—essentially “heads\\ngovernment wins, tails plaintiff loses”—leaves many victims violated but not\\nvindicated. More to the point, the “clearly established law” prong, which is\\noutcome-determinative in most cases, makes qualified immunity sometimes\\nseem like unqualified impunity: “letting public officials duck consequences for\\nbad behavior—no matter how palpably unreasonable—as long as they were the\\nfirst to behave badly.” 3\\n That said, as a middle-management circuit judge, I take direction from\\nthe Supreme Court. And the Court’s direction on qualified immunity is\\nincreasingly unsubtle. We must respect the Court’s exacting instructions—\\neven as it is proper, in my judgment, to respectfully voice unease with them. 4\\n\\n\\n\\n\\n 1 Zadeh v. Robinson, 928 F.3d 457, 474 (5th Cir. 2019) (Willett, J., concurring in part,\\ndissenting in part).\\n 2 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (flagging these “two important\\n\\ninterests”).\\n 3 Zadeh, 928 F.3d at 479.\\n 4 See, e.g., State Oil Co. v. Khan, 522 U.S. 3 (1997) (overruling prior precedent whose\\n\\nunsoundness had been “aptly described” by the court of appeals).\\n\\n\\n 49\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n I\\n Qualified immunity protects “all but the plainly incompetent or those\\nwho knowingly violate the law.” 5 While this bar is not insurmountable, it is\\nsky-high. And it is raised higher when courts leapfrog prong one (deciding\\nwhether the challenged behavior violates the Constitution) to reach simpler\\nprong two: no factually analogous precedent. Merely proving unconstitutional\\nmisconduct isn’t enough. A plaintiff must cite functionally identical authority\\nthat puts the unlawfulness “beyond debate” to “every” reasonable officer. 6 Last\\nmonth, for example, the Eleventh Circuit, noting no “materially similar case”\\n(thus no “clearly established law”), granted immunity to a police officer who\\nfired at a family’s dog but instead shot a 10-year-old child lying face-down 18\\ninches from the officer. 7 Not only that, the court “expressly [took] no position”\\nas to “whether a constitutional violation occurred in the first place.” 8\\nTranslation: If the same officer tomorrow shoots the same child while aiming\\nat the same dog, he’d receive the same immunity. Ad infinitum.\\n The Supreme Court demands precedential specificity. But it’s all a bit\\nrecursive. There’s no earlier similar case declaring a constitutional violation\\nbecause no earlier plaintiff could find an earlier similar case declaring a\\nconstitutional violation. “Section 1983 meets Catch-22. Plaintiffs must produce\\nprecedent even as fewer courts are producing precedent. Important\\nconstitutional questions go unanswered precisely because no one’s answered\\n\\n\\n\\n\\n 5 District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs,\\n475 U.S. 335, 341 (1986)).\\n 6 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see also, e.g., Kisela v. Hughes, 138 S.\\n\\nCt. 1148, 1153 (2018) (per curiam); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).\\n 7 Corbitt v. Vickers, 929 F.3d 1304, 1307–08 (11th Cir. 2019).\\n 8 Id. at 1323.\\n\\n\\n\\n\\n 50\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthem before. Courts then rely on that judicial silence to conclude there’s no\\nequivalent case on the books. No precedent = no clearly established law = no\\nliability. An Escherian Stairwell.” 9\\n II\\n In recent years, individual Justices have raised concerns with the Court’s\\nimmunity caselaw. 10 Even so, the doctrine enjoys resounding, even hardening\\nfavor at the Court. Just three months ago, in a case involving the warrantless\\nstrip search of a four-year-old preschooler, a strange-bedfellows array of\\nscholars and advocacy groups—perhaps the most ideologically diverse amici\\never assembled—implored the Court to push reset. 11 To no avail. This much is\\ncertain: Qualified immunity, whatever its success at achieving its intended\\npolicy goals, thwarts the righting of many constitutional wrongs.\\n Perhaps the growing left–right consensus urging reform will one day win\\nout. There are several “mend it, don’t end it” options. The Court could revisit\\nPearson 12 and nudge courts to address the threshold constitutional merits\\nrather than leave the law undeveloped. 13 Even if a particular plaintiff cannot\\n\\n\\n\\n\\n 9 Zadeh, 928 F.3d at 479–80 (Willett, J., concurring in part, dissenting in part).\\n 10 Four sitting Justices “have authored or joined opinions expressing sympathy” with\\nassorted critiques of qualified immunity. Joanna C. Schwartz, The Case Against Qualified\\nImmunity, 93 NOTRE DAME L. REV. 1797, 1800 (2018) (including Justices Thomas, Ginsburg,\\nBreyer, and Sotomayor, plus recently retired Justice Kennedy); see, e.g., Ziglar v. Abbasi, 137\\nS. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and concurring in the judgment) (“In\\nan appropriate case, we should reconsider our qualified immunity jurisprudence.”); see also\\nKisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (per curiam).\\n 11 Doe v. Woodard, 912 F.3d 1278 (10th Cir. 2019), cert. denied, No. 18-1173, 2019 WL\\n\\n1116409, at *1 (May 20, 2019). As for congressional reform, Congress’s refusal to revisit §\\n1983 suggests Article I acquiescence.\\n 12 555 U.S. at 236.\\n 13 As observers have cautioned, unfettered Pearson discretion contributes to\\n\\n“constitutional stagnation” by impeding the development of precedent. Aaron L. Nielson &\\nChristopher J. Walker, The New Qualified Immunity, 89 S. CAL. L. REV. 1, 23–24 (2015).\\n\\n\\n 51\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nbenefit (due to the “clearly established law” prong), this would provide moving-\\nforward guidance as to what the law prescribes and proscribes. Short of that,\\nthe Court could require lower courts to explain why they are side-stepping the\\nconstitutional merits question. 14 Or the Court could confront the widespread\\ninter-circuit confusion on what constitutes “clearly established law.” 15 One\\nconcrete proposal: clarifying the degree of factual similarity required in cases\\ninvolving split-second decisions versus cases involving less-exigent situations.\\nThe Court could also, short of undoing Harlow and reinstating the bad-faith\\nprong, permit plaintiffs to overcome immunity by presenting objective evidence\\nof an official’s bad faith. 16 Not subjective evidence of bad faith, which Harlow,\\nworried about “peculiarly disruptive” and “broad-ranging discovery,” forbids. 17\\nAnd not unadorned allegations of bad faith. But objective evidence that the\\nofficial actually realized that he was violating the Constitution.\\n Prudent refinements abound. But until then, as Judge Jones explains in\\ntoday’s principal dissent, the Supreme Court’s unflinching, increasingly\\nemphatic application of “clearly established law” compels dismissal.\\n III\\n I remain convinced that contemporary immunity jurisprudence merits\\n“a refined procedural approach that more smartly—and fairly—serves its\\n\\n\\n\\n\\n 14 Id. at 7.\\n 15 See, e.g., RICHARD FALLON, JR., ET AL., HART AND WECHSLER’S THE FEDERAL\\nCOURTS AND THE FEDERAL SYSTEM 1047–50 (7th ed. 2015) (noting the difficulties of applying\\nthe clearly-established-law test); Karen M. Blum, Section 1983 Litigation: The Maze, the\\nMud, and the Madness, 23 WM. & MARY BILL RTS. J. 913, 925 n.68 (2015) (“[W]hether a right\\nis found to be ‘clearly established’ is very much a function of which circuit (and I would add,\\nwhich judge) is asking the question, and how that question is framed.”).\\n 16 Harlow v. Fitzgerald prevents plaintiffs from relying on subjective evidence of bad\\n\\nfaith. 457 U.S. 800, 815–16 (1982).\\n 17 Id. at 817.\\n\\n\\n\\n\\n 52\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nintended objectives.” 18 Yet I also remain convinced that a majority of the\\nSupreme Court disagrees. My misgivings, I believe, are well advised. But we\\nwould be ill advised to treat the reform of immunity doctrine as something for\\nthis court rather than that Court. 19\\n For these reasons, I respectfully dissent.\\n\\n\\n\\n\\n 18 Zadeh, 928 F.3d at 481 (Willett, J., concurring in part, dissenting in part).\\n 19 As for the sidelong critique of me in the dissenting opinion of Judges Ho and\\nOldham, it is, respectfully, a pyromaniac in a field of straw men. I have not raised originalist\\nconcerns with qualified immunity. My concerns, repeated today, are doctrinal, procedural,\\nand pragmatic in nature. Nor has my unease with modern immunity practice led me to wage\\n“war with the Supreme Court’s qualified-immunity jurisprudence.” I am a fellow dissenter\\ntoday, notwithstanding my unease, precisely because I believe the Court’s precedent compels\\nit. In short, I have not urged that qualified immunity be repealed. I have urged that it be\\nrethought. Justice Thomas—no “halfway originalist”—has done the same. Ziglar, 137 S. Ct.\\nat 1872 (Thomas, J., concurring in part and concurring in the judgment) (“In an appropriate\\ncase, we should reconsider our qualified immunity jurisprudence.”).\\n\\n 53\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nJAMES C. HO and ANDREW S. OLDHAM, Circuit Judges, joined by JERRY\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431626/\", \"author_raw\": \"DON R. WILLETT, Circuit Judge, dissenting\"}, {\"author\": \"E. SMITH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"E. SMITH, Circuit Judge, dissenting:\\n\\n Apparently SUMREVs mean nothing.\\n In Luna v. Mullenix, 773 F.3d 712 (5th Cir. 2014), we sent a state trooper\\nto a jury “in defiance” of “the concept and precedents of qualified immunity.”\\n777 F.3d 221, 222 (5th Cir. 2014) (Jolly, J., dissenting from denial of rehearing\\nen banc). The Supreme Court summarily reversed us. Mullenix v. Luna, 136\\nS. Ct. 305 (2015) (per curiam). Then they GVR’d us in this case and ordered\\nus to reconsider our obvious error in light of Mullenix.\\n The en banc majority instead doubles down. That is wrong for all the\\nreasons Judge Jones gives in her powerful dissent, which we join in full. We\\nwrite to emphasize the en banc majority’s unmistakable message: Four years\\nafter Mullenix, nothing has changed in our circuit.\\n I.\\n The Supreme Court has not hesitated to redress similar intransigence\\nfrom our sister circuits—often through the “extraordinary remedy of a\\nsummary reversal.” Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor,\\nJ., dissenting) (quotation omitted). See, e.g., City of Escondido v. Emmons, 139\\nS. Ct. 500 (2019) (per curiam) (summarily reversing the Ninth Circuit); Kisela,\\n138 S. Ct. 1148 (per curiam) (same); District of Columbia v. Wesby, 138 S. Ct.\\n577 (2018) (reversing the D.C. Circuit); White v. Pauly, 137 S. Ct. 548 (2017)\\n(per curiam) (summarily reversing the Tenth Circuit); City and County of San\\nFrancisco v. Sheehan, 135 S. Ct. 1765 (2015) (reversing the Ninth Circuit);\\nCarroll v. Carman, 574 U.S. 13 (2014) (per curiam) (summarily reversing the\\nThird Circuit); Wood v. Moss, 572 U.S. 744 (2014) (reversing the Ninth Circuit);\\nPlumhoff v. Rickard, 572 U.S. 765 (2014) (reversing the Sixth Circuit); Stanton\\nv. Sims, 571 U.S. 3 (2013) (per curiam) (summarily reversing the Ninth\\nCircuit); Reichle v. Howards, 566 U.S. 658 (2012) (reversing the Tenth Circuit);\\n\\n 54\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nRyburn v. Huff, 565 U.S. 469 (2012) (per curiam) (summarily reversing the\\nNinth Circuit); Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (same); Brosseau v.\\nHaugen, 543 U.S. 194 (2004) (per curiam) (same).\\n In each of these cases, the Supreme Court reminded lower courts that\\nqualified immunity requires us not only to identify a clearly established rule\\nof law, but to do so with great specificity. Everyone agrees, of course, that Ryan\\nCole has a constitutional right not to be seized unreasonably. But “that is not\\nenough” to subject a police officer to the burdens of our civil litigation system.\\nSaucier v. Katz, 533 U.S. 194, 202 (2001). The Supreme Court has “repeatedly\\ntold courts . . . not to define clearly established law at [that] high level of\\ngenerality.” al-Kidd, 563 U.S. at 742. Rather, “[t]he dispositive question is\\nwhether the violative nature of particular conduct is clearly established.”\\nMullenix, 136 S. Ct. at 308 (citation omitted).\\n Only by identifying a specific and clearly established rule of law do we\\nensure that the officer had “fair notice”—“in light of the specific context of the\\ncase, not as a broad general proposition”—that his or her particular conduct\\nwas unlawful. Brosseau, 543 U.S. at 198 (citation omitted). See also, e.g.,\\nSheehan, 135 S. Ct. at 1776 (“Qualified immunity is no immunity at all if\\n‘clearly established’ law can simply be defined as the right to be free from\\nunreasonable searches and seizures.”); Wilson v. Layne, 526 U.S. 603, 615\\n(1999) (same); Anderson v. Creighton, 483 U.S. 635, 640 (1987) (same).\\n So where is our clearly established law at issue here? Unbelievably, the\\nen banc majority says we don’t need any. That’s so, they say, because “[t]his is\\nan obvious case.” Ante, at 16. That’s obviously wrong for three reasons.\\n First, the Supreme Court to date has never identified an “obvious” case\\nin the excessive force context. And the majority thinks this is the first? A case\\nwhere a mentally disturbed teenager—who has a loaded gun in his hand with\\n\\n\\n 55\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhis finger on the trigger; who has repeatedly refused to be disarmed; who has\\nthreatened to kill anyone who tries to disarm him; who poses such a deadly\\nthreat that police have been deployed to protect innocent students and teachers\\nat his nearby high school—turns toward the officers just ten to twenty feet\\naway, giving them only seconds to decide what to do in response. Really?\\n Second, the Supreme Court has granted qualified immunity in much\\ntougher cases than this one. In Plumhoff, for example, officers fired 15 shots\\nand killed two unarmed men who fled a traffic stop. In Brosseau, an officer\\nshot an unarmed man who refused to open his truck window. In Kisela, officers\\nshot a woman who was hacking a tree with a kitchen knife. In Sheehan,\\nofficers shot an old woman holding a kitchen knife in an assisted-living facility.\\nIn all of these cases, the Court held the officers were entitled to qualified\\nimmunity.\\n Third, this is Mullenix all over again. There our court relied on clearly\\nestablished law as articulated in Tennessee v. Garner, 471 U.S. 1 (1985).\\nGarner involved an unarmed man who fled from police after stealing $10. An\\nofficer fatally shot Garner in the back of the head as he attempted to climb a\\nfence. Our court then extended Garner to Mullenix’s case—which involved a\\nman who led police on a high-speed car chase after violating his probation. A\\nstate trooper attempted to end the chase by shooting the speeding car’s engine\\nblock—but he missed the engine, hit the driver in the face, and killed him. See\\nLuna, 773 F.3d at 719–20 (discussing Garner). The Supreme Court summarily\\nreversed us because—as should be painfully obvious from the Court’s serial\\nreversals in this area—that’s not how qualified immunity works. See Mullenix,\\n136 S. Ct. at 308–09 (holding our court erred in our extrapolation of Garner to\\n\\n\\n\\n\\n 56\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nnew facts). And they GVR’d us in this very case to fix our mistakes in light of\\nMullenix. The Supreme Court’s message could not be clearer. 1\\n Still, somehow, today’s majority does not get it. Here, as in Mullenix, the\\nmajority attempts to rely on Garner to establish the governing rule of law.\\nFrom Garner, the majority somehow divines a rule that an officer cannot shoot\\na mentally disturbed teenager holding a gun near his school. This is\\ndemonstrably erroneous. In fact, one thing that unites the Supreme Court’s\\nrecent reversals in cases involving qualified immunity and excessive force is\\nthe attempt by lower courts to extrapolate Garner to new facts. See Mullenix,\\n136 S. Ct. at 308–09; Scott v. Harris, 550 U.S. 372, 381–82 (2007) (same); Allen\\nv. City of West Memphis, 509 F. App’x 388, 392 (6th Cir. 2012) (extrapolating\\nGarner), rev’d by Plumhoff, supra.\\n Moreover, there are additional parallels between Mullenix and this case.\\nConsider the supposed requirement that an officer take some sort of non-lethal\\nmeasure before using lethal force. In Mullenix, our court used the power of 20-\\n20 hindsight to say that a reasonable officer should have used spike strips to\\n\\n\\n\\n\\n 1 The Supreme Court issues GVRs when, as here, legal error infects the judgment\\nbelow. See, e.g., Hicks v. United States, 137 S. Ct. 2000, 2000–01 (2017) (Gorsuch, J.,\\nconcurring) (defending GVR because “[a] plain legal error infects this judgment” and because\\npetitioner “enjoys a reasonable probability of success” in getting judgment reversed on the\\nmerits); id. at 2002 (Roberts, C.J., dissenting) (“[W]ithout a determination from this Court\\nthat the judgment below was wrong or at least a concession from the Government to that\\neffect, we should not, in my view, vacate the Fifth Circuit’s judgment.”). As the cert petition\\nexplained, our panel denied qualified immunity “based on the same rationale” on “which this\\nCourt reversed in Mullenix.” Pet. at i, 2016 WL 4987324. We think it obvious the Supreme\\nCourt GVR’d because it agreed. And tellingly, the majority does not offer an alternative\\ntheory to explain the GVR. We ignore the Court’s message at our peril. See, e.g., Smith v.\\nMitchell, 437 F.3d 884 (9th Cir. 2006) (granting habeas relief to a state prisoner because the\\nevidence was insufficient to prove she shook her grandbaby to death); Patrick v. Smith, 550\\nU.S. 915 (2007) (GVR’ing i/l/o Carey v. Musladin, 549 U.S. 70 (2006)); Smith v. Patrick, 519\\nF.3d 900 (9th Cir. 2008) (again granting habeas relief); Patrick v. Smith, 558 U.S. 1143 (2010)\\n(GVR’ing i/l/o McDaniel v. Brown, 558 U.S. 120 (2010)); Smith v. Mitchell, 624 F.3d 1235 (9th\\nCir. 2010) (again granting habeas relief); Cavazos v. Smith, 565 U.S. 1 (2011) (SUMREV’ing).\\n\\n 57\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nstop the chase. See 773 F.3d at 720–21. The Supreme Court emphatically\\nrebuked us. See 136 S. Ct. at 310. They told us that an officer does not have\\nto expose himself or other officers to harm when the suspect has already\\nrefused to be disarmed. That meant Trooper Mullenix did not have to wait to\\nsee if the fleeing felon would shoot or run over the officer manning the spike\\nstrips. See id. at 310–11.\\n So too here. In this case, the majority complains that the officers did not\\nprovide sufficient warning. But there was no clearly established law requiring\\nOfficers Cassidy and Hunter to announce themselves—while caught in an open\\nand defenseless position—and hope not to get shot. That is particularly true\\nhere because officers previously ordered Cole to put down his gun, he refused,\\nand he threatened to kill anyone who attempted to disarm him.\\n And in Mullenix, as here, we accused the police officers of being cowboys.\\nEarlier on the day of the shooting, Trooper Mullenix received a negative\\nperformance review for “not being proactive enough as a Trooper”; so in the\\naftermath of the shooting, Mullenix said to his supervisor, “How’s that for\\nproactive?” 773 F.3d at 717; see also 136 S. Ct. at 316 (Sotomayor, J.,\\ndissenting). The panel opinions and en banc majority opinion in this case\\nlikewise seethe with innuendo that Officers Hunter and Cassidy were wannabe\\ncowboys looking for a gunfight. We are in no position to make such accusations.\\nNo member of this court has stared down a fleeing felon on the interstate or\\nconfronted a mentally disturbed teenager who is brandishing a loaded gun\\nnear his school. And the Mullenix Court held that the qualified-immunity\\nstandard gives us no basis for sneering at cops on the beat from the safety of\\nour chambers. See 136 S. Ct. at 310–11 (majority op.) (citing Brief for National\\nAssociation of Police Organizations et al. as Amici Curiae). Yet here we are.\\nAgain.\\n\\n\\n 58\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II.\\n The majority cannot dodge responsibility for today’s decision by pointing\\nto the limits of appellate jurisdiction. See ante, at 13–14 (majority op.); ante,\\nat 1 (Elrod, J., concurring). We obviously lack interlocutory appellate\\njurisdiction to review the genuineness of an officer’s fact dispute. See, e.g.,\\nJohnson v. Jones, 515 U.S. 304, 313–14 (1995); Kinney v. Weaver, 367 F.3d 337,\\n346–47 (5th Cir. 2004) (en banc) (applying Johnson v. Jones).\\n But that does nothing to defeat jurisdiction where, as here, the factual\\ndisputes are immaterial. That is why the Supreme Court repeatedly has\\nrejected such no-jurisdiction pleas from those who wish to deny qualified\\nimmunity. See, e.g., Plumhoff, 572 U.S. at 771–73; id. at 773 (noting existence\\nof genuine fact dispute did not defeat appellate jurisdiction in Scott v. Harris).\\n All the fact disputes in the world do nothing to insulate this legal\\nquestion: Is this an “obvious case” under Garner—notwithstanding a\\nmountain of SUMREVs, GVRs, and pointed admonitions from the Supreme\\nCourt? The majority says yes. Ante, at 16. They obviously must have\\njurisdiction to say so. With respect, it makes no sense to say we lack\\njurisdiction to disagree with them.\\n III.\\n What explains our circuit’s war with the Supreme Court’s qualified-\\nimmunity jurisprudence? Two themes appear to be at play.\\n First, the majority suggests we should be less than enthused about\\nSupreme Court precedent in this area, because it conflicts with plaintiffs’ jury\\nrights. To quote the panel: “Qualified immunity is a judicially created doctrine\\ncalculated to protect an officer from trial before a jury of his or her peers. At\\nbottom lies a perception that the jury brings a risk and cost that law-\\nenforcement officers should not face, that judges are preferred for the task—a\\n\\n\\n 59\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment made by appellate judges.” Cole v. Carson, 905 F.3d 334, 336 (5th\\nCir. 2018). Or in the words of today’s majority: “The Supreme Court over\\nseveral years has developed protection from civil liability for persons going\\nabout their tasks as government workers” (a rather curious way to describe the\\nmen and women who swear an oath to protect our lives and communities).\\nAnte, at 2. But “the worker’s defense” must yield, in cases like this, “in\\nobeisance to [the] constitutional mandate” of a jury trial. Id.\\n We appreciate the majority’s candor. But inferior court judges may not\\nprefer juries to the Justices.\\n Second, some have criticized the doctrine of qualified immunity as\\nahistorical and contrary to the Founders’ Constitution. Ante at 2 (suggesting\\ndenial of qualified immunity is commanded by “the Founders”); compare\\nWilliam Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45, 49–\\n61 (2018), with Aaron L. Nielson & Christopher J. Walker, A Qualified Defense\\nof Qualified Immunity, 93 NOTRE DAME L. REV. 1853, 1856–63 (2018); see also\\nZadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring\\ndubitante), revised on petition for reh’g en banc, 928 F.3d 457, 473 (5th Cir.\\n2019) (Willett, J., concurring in part and dissenting in part).\\n As originalists, we welcome the discussion. But separate and apart from\\nthe fact that we are bound as a lower court to follow Supreme Court precedent,\\na principled commitment to originalism provides no basis for subjecting these\\nofficers to trial.\\n The originalist debate over qualified immunity may seem fashionable to\\nsome today. But it is in fact an old debate. Over two decades ago, Justices\\nScalia and Thomas noted originalist concerns with qualified immunity. But\\nthey also explained how a principled originalist would re-evaluate established\\n\\n\\n\\n\\n 60\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ndoctrines. See Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998) (Scalia, J.,\\njoined by Thomas, J., dissenting).\\n A principled originalist would not cherry pick which rules to revisit based\\non popular whim. A principled originalist would fairly review decisions that\\nfavor plaintiffs as well as police officers. As Justice Scalia explained in a\\ndissent joined by Justice Thomas, a principled originalist would evenhandedly\\nexamine disputed precedents that expand, as well as limit, § 1983 liability:\\n [O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has\\n not purported to be faithful to the common-law immunities that\\n existed when § 1983 was enacted . . . . [But] [t]he § 1983 that the\\n Court created in 1961 bears scant resemblance to what Congress\\n enacted almost a century earlier. I refer, of course, to the holding\\n of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871\\n statute covering constitutional violations committed “under color\\n of any statute, ordinance, regulation, custom, or usage of any\\n State,” Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into\\n a statute covering constitutional violations committed without the\\n authority of any statute, ordinance, regulation, custom, or usage\\n of any State, and indeed even constitutional violations committed\\n in stark violation of state civil or criminal law.\\n\\n\\nId. at 611.\\n Justices Scalia and Thomas ultimately concluded that it is better to leave\\nthings alone than to reconfigure established law in a one-sided manner. If\\nwe’re not willing to re-evaluate all § 1983 precedents in a balanced and\\nprincipled way, then it “is perhaps just as well” that “[w]e find ourselves\\nengaged . . . in the essentially legislative activity of crafting a sensible scheme\\nof qualified immunities for the statute we have invented—rather than\\napplying the common law embodied in the statute that Congress wrote.” Id.\\nat 611–12.\\n Translation: If we’re not going to do it right, then perhaps we shouldn’t\\ndo it at all.\\n\\n 61\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Subjecting these officers to trial on originalist grounds is precisely the\\nunprincipled practice of originalism that Justices Scalia and Thomas railed\\nagainst. And not just for the procedural reasons they identified in Crawford-\\nEl. What about the original understanding of the Fourth Amendment, which\\nthe plaintiffs here invoke as their purported substantive theory of liability in\\nthis case? Does the majority seriously believe that it is an “unreasonable\\nseizure,” as those words were originally understood at the Founding, for a police\\nofficer to stop an armed and mentally unstable teenager from shooting\\ninnocent officers, students, and teachers?\\n And make no mistake: Principled originalism is not just a matter of\\nintellectual precision and purity. There are profound practical consequences\\nhere as well, given the important and delicate balance that qualified immunity\\nis supposed to strike. As the Supreme Court has explained, qualified immunity\\nensures that liability reaches only “the plainly incompetent or those who\\nknowingly violate the law.” Mullenix, 136 S. Ct. at 308 (quotation omitted).\\nAnd absent plain incompetence or intentional violations, qualified immunity\\nmust attach, because the “social costs” of any other rule are too high:\\n [I]t cannot be disputed seriously that claims frequently run\\n against the innocent as well as the guilty—at a cost not only to the\\n defendant officials, but to society as a whole. These social costs\\n include the expenses of litigation, the diversion of official energy\\n from pressing public issues, and the deterrence of able citizens\\n from acceptance of public office. Finally, there is the danger that\\n fear of being sued will dampen the ardor of all but the most\\n resolute, or the most irresponsible public officials, in the\\n unflinching discharge of their duties.\\n\\nHarlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (alterations and quotations\\nomitted); see also, e.g., Sheehan, 135 S. Ct. at 1774 n.3 (noting “the importance\\nof qualified immunity to society as a whole”).\\n\\n\\n\\n 62\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n For those who have expressed concerns about a “one-sided approach to\\nqualified immunity,” Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting); see\\nalso Zadeh, 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting\\nKisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)); 928 F.3d at 480 & n.61\\n(Willett, J., concurring in part and dissenting in part) (same), look no further\\nthan the majority opinion. The majority undoes the careful balance of interests\\nembodied in our doctrine of qualified immunity, stripping the officers’ defenses\\nwithout regard to the attendant social costs. 2\\n Now that is a one-sided approach to qualified immunity as a practical\\nmatter. And as Justices Scalia and Thomas have observed, it’s also a one-sided\\napproach to qualified immunity as an originalist matter: It abandons the\\ndefense without also reconsidering the source and scope of officers’ liability in\\nthe first place. See Crawford-El, 523 U.S. at 611–12 (Scalia, J., joined by\\nThomas, J., dissenting). To quote Justice Alito: “We will not engage in this\\nhalfway originalism.” Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,\\nCouncil 31, 138 S. Ct. 2448, 2470 (2018). See also id. (criticizing litigants for\\n“apply[ing] the Constitution’s supposed original meaning only when it suits\\nthem”); Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J.,\\n\\n\\n\\n\\n 2Those social costs are particularly stark today given widespread news of low officer\\nmorale and shortages in officer recruitment. See, e.g., Ashley Southall, When Officers Are\\nBeing Doused, Has Police Restraint Gone Too Far?, N.Y. TIMES, July 25, 2019, at A22; Martin\\nKaste & Lori Mack, Shortage of Officers Fuels Police Recruiting Crisis, NPR (Dec. 11, 2018,\\n5:05 AM), https://n.pr/2Qrbrnq; Jeremy Gorner, Morale, Policing Suffering in Hostile\\nClimate, Cops Say; ‘It’s Almost Like We’re the Bad Guys,’ Veteran City Officer Says, CHI. TRIB.,\\nNov. 27, 2016, at 1.\\n\\n\\n 63\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nconcurring in the judgment) (“[I]t would be freakish to single out the provision\\nat issue here for special treatment.”). 3\\n ***\\n Our circuit, like too many others, has been summarily reversed for\\nignoring the Supreme Court’s repeated admonitions regarding qualified\\nimmunity. There’s no excuse for ignoring the Supreme Court again today. And\\ncertainly none based on a principled commitment to originalism.\\n Originalism for plaintiffs, but not for police officers, is not principled\\njudging. Originalism for me, but not for thee, is not originalism at all. We\\nrespectfully dissent.\\n\\n\\n\\n\\n 3 In a footnote, Judge Willett notes that his criticism of the Supreme Court’s qualified\\nimmunity precedents is not based on originalist grounds. Ante, at 4 n.19. To our minds, that\\nmakes his criticism harder, not easier, to defend. If his concerns are based on practical and\\nnot originalist considerations, then he should address them to the Legislature, rather than\\nattack the Supreme Court as “one-sided.” Zadeh, 902 F.3d at 499 & n.10 (Willett, J.,\\nconcurring dubitante) (quoting Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)). He\\nalso invokes Justice Thomas’s opinion in Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017). But\\nthat opinion cites Justice Scalia’s opinion in Crawford-El, which (as we explained above)\\nwarns qualified immunity skeptics not to engage in halfway originalism.\\n\\n 64\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nSTUART KYLE DUNCAN, Circuit Judge, joined by SMITH, OWEN, HO, and\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431626/\", \"author_raw\": \"E. SMITH, Circuit Judge, dissenting\"}, {\"author\": \"OLDHAM, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"OLDHAM, Circuit Judges, dissenting:\\n\\n The majority opinion overlooks or omits undisputed material facts\\nshowing that any reasonable officer would have viewed Ryan Cole as a severe\\nthreat. Before the shooting, the defendant officers: (1) were tracking a\\ndistraught suspect wandering through the woods armed with a loaded 9mm\\nsemi-automatic handgun; (2) who had earlier that morning off-loaded a cache\\nof weapons and ammunition at a friend’s house; (3) who had already refused to\\ngive up his pistol when confronted by the police; and (4) who had threatened to\\n“shoot anyone who came near him.” Cole did not dispute those facts and,\\nindeed, convinced the district court they were irrelevant. Joining Judge Jones’\\ndissent in full, I respectfully dissent on the additional grounds provided by\\nthese pre-encounter facts.\\n No one doubts some of the events on October 25, 2010—when the officers\\nviolently encountered Cole in the woods near Garland, Texas—are disputed.\\nThe question is whether those disputes are material. See, e.g., Bazan ex rel.\\nBazan v. Hidalgo Cty., 246 F.3d 481, 483 (5th Cir. 2001) (“threshold issue” on\\nqualified immunity appeal “is whether the facts the district judge concluded\\nare genuinely disputed are also material”). Judge Jones’ dissent compellingly\\nshows they are not: Resolving all disputes in Cole’s favor, the undisputed facts\\nstill show the officers violated no clearly established law. Jones Dissent at 2–\\n3, 11–22. The majority thus errs by concluding that “competing factual\\nnarratives” bar it from deciding qualified immunity. Maj. at 3.\\n I write separately to emphasize what led up to the shooting, and also to\\nexplain why those undisputed events provide further reasons to reverse. The\\nmajority and Judge Jones focus on the shooting itself, as did the district court.\\nBut the prelude to the shooting gives unavoidable context for evaluating the\\n\\n\\n\\n 65\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nofficers’ actions. 1 Surprisingly, the district court did not even analyze those\\nstage-setting facts, which it mistakenly deemed irrelevant. See Cole v. Hunter,\\nNo. 3:13-CV-02719-O, 2014 WL 266501, at *13 n.5 (N.D. Tex. Jan. 24, 2014);\\nCole v. Hunter, 68 F. Supp. 3d 628, 642–43 (N.D. Tex. 2014). So, to assess their\\nimpact, we must “undertake a cumbersome review of the record.” Johnson v.\\nJones, 515 U.S. 304, 319 (1995). That extra work is sometimes imperative, as\\nhere, “to ensure that the defendant’s right to an immediate appeal on the issue\\nof materiality is not defeated solely on account of the district court’s failure to\\narticulate its reasons for denying summary judgment.” Colston v. Barnhart,\\n146 F.3d 282, 285 (5th Cir. 1998), denying reh’g in 130 F.3d 96 (5th Cir. 1997).\\n This detailed record review (see Part I) compels two conclusions (see Part\\nII). First, the district court erred by excluding the undisputed events before the\\nshooting. That error—based on a misreading of our precedent—truncated the\\nqualified immunity analysis. That alone requires reversing the summary\\njudgment denial. Second, in light of those pre-encounter facts, the majority’s\\ninsistence that this is an “obvious case” collapses. Maj. at 16. Given what\\nconfronted the officers, the majority cannot say what they did was “obviously”\\nunlawful. The only thing obvious is that no case told the officers, clearly or\\notherwise, how to respond when they met Cole that morning, emerging from\\nthe woods with his finger on the trigger of a loaded gun.\\n By denying qualified immunity and making the officers run the gauntlet\\nof trial, the majority sets a precedent that “seriously undermines officers’\\nability to trust their judgment during those split seconds when they must\\n\\n\\n\\n\\n 1See, e.g., Kingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015) (courts “must judge\\nthe reasonableness of the force used from the perspective and with the knowledge of the\\ndefendant officer”); Tennessee v. Garner, 471 U.S. 1, 9 (1985) (whether a “particular” seizure\\nwas justified depends on “the totality of the circumstances”).\\n\\n 66\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ndecide whether to use lethal force.” Winzer v. Kaufman Cty., 916 F.3d 464, 482\\n(5th Cir. 2019) (Clement, J., dissenting).\\n I.\\n The majority begins “around 10:30 a.m.,” less than an hour before the\\nshooting. Maj. at 4. But events began to unfold much earlier. 2 Around 2 a.m.\\nthat morning, Cole knocked on the door of his friend, Eric Reed Jr., to show\\nhim “a 44 magnum revolver.” Awakened by the knocking, Eric Jr.’s father (Eric\\nSr.) left his room, saw Cole with the gun, and told him to leave. Eric Jr.\\nconvinced Cole to leave the revolver because “he [did not] need to be carrying\\na weapon around.”\\n Around 8 a.m., Eric Jr. gave his father Cole’s gun. Eric Sr., a retired\\nSachse police officer, then notified Officer Vernon Doggett, who came to the\\nReeds’. Eric Jr. told his father and Doggett that “[Cole] told him there were\\nmore guns on the side of the house.” There, they found “a double barrel shot\\ngun with some shot gun shells and what appeared to be a plastic bag with 9mm\\nbullets,” which Doggett secured. Eric Jr. also explained Cole “had broken up\\nwith his girlfriend and was going to kill himself and his girlfriend.”\\n Doggett was a resource officer for Sachse High School, where Cole and\\nhis girlfriend attended. He contacted Sergeant Garry Jordan, told him about\\nthe guns, and asked to meet at the school. Doggett reported that Cole “may be\\nat school with a 9mm handgun.” Another officer checked whether Cole was in\\nclass, and Jordan searched the parking areas for Cole.\\n\\n\\n\\n\\n 2 All of these facts come from reports and transcriptions of radio transmissions made\\nwithin a day or two of the incident. None come from affidavits submitted by the officers years\\nlater. And, as explained below, none of these pre-encounter facts was disputed by Cole or\\nanalyzed by the district court.\\n\\n\\n 67\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Not finding him, Jordan went to Coles’ and spoke to his parents. He\\nlearned that, the previous evening, officers had responded to a disturbance\\nthere. Officers had found Cole’s father “holding Ryan down” because “he did\\nnot want [Cole] to leave the residence with the pocket knife that he had.” He\\nsaid “his son had a wild look in his eye and . . . had been smoking K2.” While\\nthe officers found there had been no assault, all agreed it was “a good idea for\\nCole to stay the night with a friend.” The Coles had not seen Ryan since then\\nbut reported he had “apparently returned home during the night and had\\nopened the gun safe, removed an unknown amount [sic] of weapons, and reset\\nthe combination.”\\n Meanwhile, Eric Jr. noticed Cole was back. He asked Cole if he was\\narmed and Cole showed him a “38 revolver” and a “9mm semiauto.” He\\nconvinced Cole to give him the revolver, but Cole told him he was not “getting\\nthe 9mm.” Cole also said that the 9mm was loaded and that he did not “wanna\\nuse it on [Eric Jr.]” Cole stated that “he would shoot anyone who came near\\nhim.” Cole left, and Eric Jr. called his father, who called the police.\\n Around 10:49 a.m., Officer Stephen Norris radioed “all available Sachse\\nofficers” to respond to the area of the Reed residence. He reported Cole was\\n“observed running south of the location with 3 weapons, one a loaded 9mm.”\\nHe also reported Cole was “irate and distraught and stated he would shoot\\nanyone who came near him.” Around the same time, Sachse Officer Michael\\nHunter was dispatched to assist Jordan at the Coles’, but on arrival he was\\ntold by Sachse Officer Carl Carson he was not needed. As Hunter was leaving,\\nhe heard Norris’ call advising Cole was “in the area . . . with a gun.” Hunter\\n\\n\\n\\n\\n 68\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nstated he “did not know the specifics of the call at this point,” but proceeded to\\nthe Reeds’ residence. In response to Norris’ call, Jordan also left the Coles’.\\n Sachse Officer Martin Cassidy also received Norris’ dispatch and went\\nto the area Norris indicated. He was given Cole’s description and advised that\\nCole was “armed with at least one handgun and possibly three.” Cassidy spoke\\nwith Norris on the phone about “the proximity of Armstrong Elementary\\nSchool to the location where [Cole] was last seen.” Cassidy therefore went to\\ncheck on the school and a nearby shopping center for any signs of Cole.\\n Meanwhile, Hunter arrived at the Reeds’, where he met Jordan and\\nCarson. Hunter overheard Eric Jr. say he had gotten “one gun” from Cole but\\nthat Cole had left “armed with a 9mm handgun.” “Hunter put [Cole’s]\\ndescription out to other officers,” and then he and Carson went to search for\\nCole. After speaking with the officers, Eric Jr. checked for more guns and found\\n“6 firearms around [his] house.”\\n Jordan then observed Officers Elliott and Sneed pass by in a patrol unit.\\nThose officers found Cole nearby. Elliott reported that “Sneed . . . advised\\n[Cole] to show his hands.” Instead, Cole “reached into his waist band and pulled\\na pistol and placed it to his head after about three steps and refused to obey\\nLt. Sneed[’s] commands.” When Jordan arrived, Sneed “drew his duty weapon\\nand yelled at [Cole] to drop the weapon,” but Cole refused. As Cole continued\\neastbound towards Highway 78, Sneed “warned [Cole] that [he] would shoot\\nhim in the back if he tried to get to the highway or walk toward any innocent\\nbystanders.” Cole “would occasionally turn his head and yell obscenities at\\n[Sneed].” Two other officers then parked “directly in front of [Cole’s] path.” To\\navoid them, Cole turned “northbound and began walking the railroad tracks.”\\nJordan was constantly updating dispatch about Cole’s movements. “Suddenly,\\n[Sneed] observed [Cole] cut eastbound and run up a hill and into the brush\\n\\n\\n 69\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ntowards Highway 78.” Dispatch reported that Cole was “off tracks coming\\nthrough tree lines towards [Highway] 78.”\\n Hunter, Carson, and Cassidy were monitoring Cole’s movements from\\nthe dispatches. They arrived separately at the part of Highway 78 where Cole\\nwas thought to be. Hunter noted “[Cole] appeared to be walking towards the\\nrailroad track,” and he advised Carson “[they] needed to go out to the highway\\nand intercept [him].” Cassidy advised Carson to get out his taser and follow\\nCassidy. Hunter “parked further south on Highway 78 as [he] figured [Cole]\\nwould be on the railroad track paralleling Highway 78 at about [his] location.”\\nHe guessed correctly. As Hunter “began to look for cover since [he] was out in\\nthe open,” Cole “walked out from the brush approximately 10 to 20 feet from\\n[Hunter].”\\n What followed was the shooting.\\n II.\\n Cole did not dispute these stage-setting events in opposing summary\\njudgment. To the contrary, he argued any “prior events” before the shooting\\nwere “irrelevant.” The district court agreed, excluding from its qualified\\nimmunity analysis the “events” from “earlier that morning,” Cole, 2014 WL\\n266501, at *13 n.5, and focusing solely on what happened “immediately before\\nand during the shooting.” Cole, 68 F. Supp. 3d at 644. That mistake skewed\\nthe district court’s analysis and provides yet another reason why we should\\nreverse.\\n First, the district court erred by excluding everything that happened\\nbefore the officers’ five-second encounter with Cole. That approach artificially\\ntruncates the qualified immunity analysis. In assessing qualified immunity,\\nwe “[c]onsider[ ] the specific situation confronting [officers],” City & Cty. of San\\nFrancisco v. Sheehan, 135 S. Ct. 1765, 1778 (2015), which “must be judged from\\n\\n\\n 70\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthe perspective of a reasonable officer on the scene[.]” Graham v. Connor, 490\\nU.S. 386, 396 (1989). A “reasonable officer” does not shape his decisions based\\nonly on the seconds when he confronts an armed suspect; instead, he acts based\\non all relevant circumstances, including the events leading up to the ultimate\\nencounter. See, e.g., Escobar v. Montee, 895 F.3d 387 (5th Cir. 2018) (courts\\nevaluate excessive force claims “from the perspective of a reasonable officer on\\nthe scene, paying ‘careful attention to the facts and circumstances of each\\nparticular case’”) (quoting Graham, 490 U.S. at 396). That is precisely how the\\nSupreme Court has instructed lower courts to assess whether force is\\nexcessive: The seminal case, Tennessee v. Garner, asks whether a seizure was\\njustified, based not only on the immediate seizure, but on “the totality of the\\ncircumstances” facing the officers. 471 U.S. 1, 9 (1985). And qualified immunity\\ncases, both from the Supreme Court and our court, routinely consider the\\nbackground facts that shaped an officer’s confrontation with a suspect in order\\nto evaluate the officer’s ultimate use of force. 3\\n The district court’s sole contrary authority was our statement in\\nRockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011), that the excessive force\\ninquiry “is confined to whether the [officer or another person] was in danger at\\nthe moment of the threat.” But the district court overread Rockwell. We made\\nthat statement in Rockwell to reject the notion that officers’ negligence before\\n\\n\\n\\n\\n 3 See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 306 (2015) (assessing officer’s shooting of\\nsuspect during car chase beginning with events preceding the “18-minute chase”); Plumhoff\\nv. Rickard, 572 U.S. 765, 768–70 (2014) (assessing officer’s shooting of suspects in Memphis,\\nTennessee after lengthy car chase beginning with traffic stop in “West Memphis, Arkansas”);\\nBrosseau v. Haugen, 543 U.S. 194, 195 (2004) (evaluating officer’s shooting of fleeing suspect\\nbeginning with events “[o]n the day before the fracas”); Colston, 130 F.3d at 100 (determining\\nofficer’s failure to warn was not objectively unreasonable “[i]n light of the totality of the\\ncircumstances facing [the officer]”) (citing Garner, 471 U.S. at 10).\\n\\n\\n 71\\n\\n No. 14-10228 c/w No. 15-10045\\n\\na confrontation determines whether they properly used deadly force during the\\nconfrontation. See id. at 992–93 (rejecting argument that “circumstances\\nsurrounding a forced entry” bear on “the reasonableness of the officers’ use of\\ndeadly force”). The cases Rockwell cited say that plainly. See, e.g., Fraire v. City\\nof Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (“[R]egardless of what had\\ntranspired up until the shooting itself, [the suspect’s] movements gave the\\nofficer reason to believe, at that moment, that there was a threat of physical\\nharm.”). 4 And the key case Rockwell quoted for the “moment-of-the-threat”\\npoint recognized that pre-confrontation events could “set the stage for what\\nfollowed in the field.” Bazan, 246 F.3d at 493.\\n By misreading our cases, the district court blinded itself to a rich vein of\\nfacts—facts Cole did not dispute below—that round out the picture of the\\nofficers’ violent encounter with Cole. At a minimum, that error alone requires\\nreversing the denial of summary judgment and remanding for reconsideration\\nof the officers’ actions in light of all relevant undisputed facts. See, e.g., White\\nv. Balderama, 153 F.3d 237, 242 (5th Cir. 1998) (concluding “limited remand”\\nwas appropriate given “lack of specificity in . . . district court’s order denying\\nsummary judgment on the basis of qualified immunity”).\\n Second, the undisputed pre-encounter events underscore why, contrary\\nto the majority’s view, this is far from an “obvious case.” Maj. at 16. An “obvious\\ncase,” the Supreme Court has explained, is one where an officer’s actions are\\n\\n\\n\\n\\n 4 Our cases continue to apply the Rockwell “moment-of-the-threat” principle in this\\nway. See, e.g., Shepherd v. City of Shreveport, 920 F.3d 278 (5th Cir. 2019) (explaining that,\\nbecause the excessive force inquiry is “confined to whether the officer was in danger at the\\nmoment of the threat[,] . . . [t]herefore, any of the officers’ actions leading up to the shooting\\nare not relevant”) (emphasis added) (internal quotes and citation omitted); Harris v. Serpas,\\n745 F.3d 767, 772–73 (5th Cir. 2014) (same) (discussing Rockwell).\\n\\n\\n 72\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nplainly unlawful under a generalized legal test, even if those actions do not\\ncontravene a “body of relevant case law.” Brosseau, 543 U.S. at 199 (citing Hope\\nv. Pelzer, 536 U.S. 730, 738 (2002)); see also, e.g., White v. Pauly, 137 S. Ct. 548,\\n552 (2017) (an “obvious case” means that “in the light of pre-existing law the\\nunlawfulness [of the officer’s actions] must be apparent”) (citing Anderson v.\\nCreighton, 483 U.S. 635, 640 (1987)) (cleaned up). As I understand the majority\\nopinion, it believes this is an obvious case because a jury could find that\\n(1) Cole “posed no threat” to the officers; (2) the officers fired “without\\nwarning”; and (3) the officers had “time and opportunity” to warn Cole, but did\\nnot. Maj. at 15. According to the majority, this scenario would plainly violate\\nGarner’s generalized test that an officer may not use deadly force to apprehend\\na suspect who “poses no immediate threat to the officer,” unless he warns the\\nsuspect “where feasible.” Id. (quoting Garner, 471 U.S. at 11–12).\\n Judge Jones’ dissent shows that, even resolving all disputed facts in\\nCole’s favor, the officers did not “obviously” violate Garner’s generalized test\\nduring the immediate shooting—that is, when in the space of five seconds at\\nmost, the officers met Cole at a distance of 10–20 feet as he backed out of the\\nwoods, still armed, and began to turn. Jones Dissent at 11–12. But if we include\\nthe undisputed facts leading up to the shooting, the notion that this is an\\n“obvious case” crumbles. To believe that, we would have to blind ourselves to\\nthe facts that (1) the officers were searching for an irate, distraught suspect;\\n(2) who was wandering through the woods armed with a loaded semi-automatic\\nhandgun; (3) who had refused police demands to turn over his weapon; (4) who\\nhad just that morning deposited a cache of weapons and ammunition at his\\nfriend’s house; and (5) who had threatened to “shoot anyone who came near\\nhim.” Those were the “totality of the circumstances” facing the officers, Colston,\\n130 F.3d at 100, and they were not disputed by Cole or the district court. Given\\n\\n\\n 73\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthose circumstances, the officers might have taken any number of actions when\\nthey met Cole in the woods that morning—they might have warned him, or\\nshot him, or shot in the air, or retreated, or remained frozen in place to see\\nwhat he would do. But to say it is “obvious” what they should have done is to\\ndenude the concept of an “obvious case” of any meaning.\\n Once stripped of the conceit that this is an “obvious case,” the majority\\nhas nothing left to justify its holding. The Supreme Court has bluntly told us\\nthat, outside the “obvious case” scenario, “Garner . . . do[es] not by [itself]\\ncreate clearly established law[.]” White v. Pauly, 137 S. Ct. at 552. And, of\\ncourse, the majority does not try to claim that the facts of Garner are anything\\nlike this case. In Garner, a police officer shot a fleeing, unarmed burglar in the\\nback of the head. The officer admitted he did not even suspect the burglar was\\narmed. See 471 U.S. at 3 (noting the officer “saw no sign of a weapon” at the\\ntime he shot and, afterwards, admitted “[he] was ‘reasonably sure’ and ‘figured’\\nthat [the suspect] was unarmed”). Apples and oranges does not capture the\\nchasm between that case and this one.\\n The majority does claim that our 1996 decision in Baker v. Putnal,\\n“clearly established” that the officers’ conduct here was unlawful. Maj. at 16\\n(citing 75 F.3d 190, 193 (5th Cir. 1996)). That is mistaken. In Baker, Officer\\nPutnal was patrolling a crowded beach area when gunfire erupted. Id.\\nWitnesses directed Putnal “toward a red car which they said contained the\\nshooters.” Id. He approached that car, but then saw two people sitting in\\nanother vehicle, a truck. Id. One of the truck’s passengers, Wendell Baker,\\n“turned in Putnal’s direction . . . [and] Putnal shot and killed [him].” Id. While\\na pistol was recovered from the truck, the plaintiffs denied Baker “was holding\\na pistol” when shot. Id. at 196. In other words, a jury could have found Baker\\nwas not holding a gun when Putnal killed him.\\n\\n\\n 74\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n It is not hard to grasp the key difference between Baker and this case.\\nWhen shot, Baker was possibly not even holding a gun. When shot, Cole was\\nundisputedly holding a gun. Imagine this conversation between a police officer\\nand the police department’s lawyer:\\n\\n OFFICER: I heard the Fifth Circuit just decided this Baker case. What\\n does it tell me I should or shouldn’t do in the field?\\n LAWYER: Well, Baker says you lose qualified immunity if you shoot\\n someone sitting in a car doing nothing more threatening\\n than just turning in your direction. In other words, someone\\n you don’t even see holding a weapon.\\n OFFICER: Makes sense. But tell me this. What if the person I approach\\n is holding a gun?\\n LAWYER: Well, Baker doesn’t speak clearly to that situation. I mean,\\n the jury in Baker could have found the guy didn’t even have\\n a gun in his hand when the officer shot him.\\n\\nIn other words, contrary to the majority’s view, Baker could not have\\n“established clearly that Cassidy’s and Hunter’s conduct . . . was unlawful”\\nwhen they shot Cole as he emerged from the woods with his finger on the\\ntrigger of a loaded gun. Maj. at 16. To guide officers in the field, a controlling\\nprecedent must be “sufficiently clear that every reasonable [officer] would have\\nunderstood that what he is doing violates” the Constitution. Mullenix, 136 S.\\nCt. at 308 (cleaned up). Baker does not come close.\\n The officers deserve qualified immunity on the excessive force claims. I\\nrespectfully dissent.\\n\\n\\n\\n\\n 75\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431626/\", \"author_raw\": \"OLDHAM, Circuit Judges, dissenting\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"HIGGINBOTHAM"},"judge3":{"kind":"string","value":"JONES"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"SMITH; DENNIS; CLEMENT; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM"},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Chief\", \"HIGGINBOTHAM\": \", Circuit\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\", \"DENNIS\": \", Circuit\", \"CLEMENT\": \", Circuit\", \"OWEN\": \", Circuit\", \"ELROD\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"COSTA\": \", Circuit\", \"WILLETT\": \", Circuit\", \"HO\": \", Circuit\", \"DUNCAN\": \", Circuit\", \"ENGELHARDT\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":8,"string":"8"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":6,"string":"6"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4654373/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Randy Cole v. Michael Hunter\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-21\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nREVISED August 21, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 14-10228 August 20, 2019\n Lyle W. Cayce\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\n\n\n Plaintiffs-Appellees\nv.\n\nCARL CARSON,\n\n Defendant-Appellant\n\n ****************\n\n\n No. 15-10045\n\n\nRANDY COLE; KAREN COLE; RYAN COLE,\n\n Plaintiffs-Appellees\nv.\n\nMICHAEL HUNTER; MARTIN CASSIDY,\n\n Defendants-Appellants\n\n\n Appeals from the United States District Court\n for the Northern District of Texas\n _______________________\n\n ON PETITION FOR REHEARING EN BANC FOLLOWING\n REMAND FROM THE UNITED STATES SUPREME COURT\n\n No. 14-10228 c/w No. 15-10045\n\n\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\nOLDHAM, Circuit Judges.\n\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\nJENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA\nHAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA,\nand KURT D. ENGELHARDT, Circuit Judges: 1\n\n The Supreme Court over several years has developed protection from\ncivil liability for persons going about their tasks as government workers in the\nform of immunity; not the absolute immunity enjoyed by prosecutors and\njudges, but a qualified immunity. Today we again repair to issues inherent in\nthe qualification. The doctrine protects at the earliest stage of litigation at\nwhich the defense’s application is determinable. To that end, courts have\ndeveloped procedures and pretrial practices, including appellate review of\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\nanswer under Rule 7(a) on order of the district court, particularized to address\nthe defense of immunity in a motion to dismiss or for summary judgment.\nWhen those processes do not yield pretrial resolution, as with competing\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\nfirst point at which its application is determinable. And in obeisance to\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\na jury—long a bastion interposed between the state and person, and assured\nby the Founders. And it signifies that today the district judge has multiple\n\n\n\n\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\nparticipating as members of the original panel.\n\n 2\n\n No. 14-10228 c/w No. 15-10045\n\nways to present fully the claims and defenses to a jury to ensure the\ngovernment worker a full draw upon his immunity defense, 2 including\nresolution of the competing factual narratives, one of which—or a meld of\nboth—may foreclose liability. 3\n In this case, police officers from Sachse, Texas argue that the district\ncourt should have sustained their defense of qualified immunity on their\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\nwhat happened. The officers filed dispositive pretrial motions in the district\ncourt, asserting the defense of qualified immunity. The district court denied\nthese motions, concluding that immunity could not be determined at this stage\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\n\n\n\n\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\n 3 In any treatment of the jury’s role in stepping between state-afforded process\n\nand an individual defendant, it bears emphasis that the district judge can impanel a\njury of at least six and as many as twelve members whose verdict, absent the parties’\nagreement otherwise, must be unanimous.\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\n\nHunter v. Cole, 137 S. Ct. 497 (2016).\n\n\n 3\n\n No. 14-10228 c/w No. 15-10045\n\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\nthe denial of summary judgment as to the excessive-force claim. Because the\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\nlight of Mullenix.\n We conclude that it will be for a jury, and not judges, to resolve the\ncompeting factual narratives as detailed in the district court opinion and the\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\nAmendment and Brady fabrication-of-evidence claims based on qualified\nimmunity; and return the case to the district court for trial and resolution of\nissues consistent with this opinion.\n I\n A.\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\nDepartment called available units to the neighboring town of Garland, Texas.\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\n\n\n\n\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\ncuriam)).\n\n 4\n\n No. 14-10228 c/w No. 15-10045\n\nreported to be walking in the neighborhood with a handgun. Officer Michael\nHunter responded by proceeding immediately to the Garland neighborhood. In\na statement given on the day of the incident, Hunter related that on arriving\nin the neighborhood, he overheard a civilian stating that Ryan had given up\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\nkeep his handgun. Hunter searched the area, and saw two officers following\nRyan, who was walking away from them holding his gun to his head,\napproaching a wooded area along Highway 78. Although told by officers that\nthings were under control, Hunter volunteered to go behind the wooded area\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\nalso present, join him.\n Four years later, after this litigation had commenced, Hunter for the first\ntime recalled that the civilian he had overheard had described an altercation\nwith Ryan in which Ryan had threatened him. He also then for the first time\nrecalled hearing police-radio transmissions indicating that officers were\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\na risk of serious harm to a great many innocent in the vicinity.” Hunter\notherwise learned nothing “that would cause [him] to believe [Ryan] was\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\nand, four years after the incident, he also raised the possibility that Ryan was\nusing suicide as a pretext to evade the police.\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\ninformation. On the day of the incident, Cassidy swore that he learned “this\n\n\n\n\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\n\n 5\n\n No. 14-10228 c/w No. 15-10045\n\nsubject had shown up at [a] residence with a handgun and had just recently\nbeen seen walking away.” But, four years later, after this litigation had\ncommenced, like Hunter, Cassidy remembered learning more, including that\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\nan order to drop his weapon; and might be headed for Sachse High School “to\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\nHighway 78.\n The three officers separately arrived at the side of Highway 78 at around\nthe same time. Hunter parked his motorbike and drew his duty weapon;\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\nThe officers started walking along the tree line. A steep embankment rose from\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\nembankment to approach the tree line. Cassidy and Hunter used both the edge\nof the embankment and the vegetation to conceal themselves as they walked.\nHunter also removed his white motorcycle helmet in order to be less\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\nascending to the tree line. Hunter heard movement in the brush, and signaled\nto his colleagues.\n What occurred next is disputed. Viewing the summary judgment\nevidence and drawing reasonable inferences in the light most favorable to the\nnon-movant Coles, the district court determined that a reasonable jury could\nfind the following: Ryan backed out from the tree line in front of Hunter and\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\n\n\n\n\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\nin a light most favorable to the Coles, the district court relied on the physical and\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\n\n\n 6\n\n No. 14-10228 c/w No. 15-10045\n\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\nat the Officers,” 9 and “never made a threatening or provocative gesture\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\nnot know that.\n Following the shooting, the three officers remained together at the scene.\nThe Coles allege that during this time the officers conspired to insulate Cassidy\nand Hunter from liability with a fabricated narrative in which Ryan was facing\nHunter and pointed his weapon at the officer, at which point Cassidy and\n\n\n\n\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\nhave been aware of the presence of the police officers prior to the time he was shot.”\n 8 Cole, 68 F. Supp. 3d at 644.\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\n\nargument that Cole did not know of the Officers’ presence.”).\n 10 Cole, 68 F. Supp. 3d at 645–46.\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\n\nduring which they could have called out to Cole, sufficient time to make a warning\naccording to Cole’s expert.\n 12 Cole, 68 F. Supp. 3d at 645.\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\n 14 Id. at 644.\n 15 Cole, 68 F. Supp. 3d at 644.\n 16 Id.\n\n\n 7\n\n No. 14-10228 c/w No. 15-10045\n\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\nDepartment arrived and took control of the scene, but did not follow the\nstandard procedure of separating witnesses to ensure independent\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\npolice station together. Later that day, the officers provided statements to\ninvestigators. Hunter stated that he had no chance to issue a command to\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\nstated that Ryan then turned towards Hunter and pointed his handgun at\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\ndefensively. 17\n The Dallas County District Attorney presented the officers’ narrative to\na grand jury, which no-billed the officers and charged Ryan with felony\naggravated assault of a public servant. As a result of the charge, Ryan,\nincapacitated in intensive care, was placed under house arrest. About a month\nafter the indictment, investigators received a ballistics report from the crime\nlab. The ballistics analysis, taken together with stippling observed around\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\n Ryan suffered permanent injuries, including cognitive impairment,\npartial paralysis, and other serious mental and physical disabilities.\n\n\n\n\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\nhis line of sight.\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\n\nreleased immediately around a discharging firearm.\n\n 8\n\n No. 14-10228 c/w No. 15-10045\n\n B.\n The Coles brought, inter alia, four Section 1983 claims against the\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\nagainst the use of excessive force arising from the shooting. Second, the Coles\nallege a violation of Ryan’s Fourteenth Amendment right against the\nimposition of false charges arising from the fabrication of evidence. Third, they\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\nviolation arising from the fabrication of evidence. The officers filed a motion to\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\ndefenses. The district court denied the motion in a January 2014 Memorandum\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\nqualified immunity defenses to the excessive-force claim. With that discovery\ncomplete, the two officers moved for summary judgment, rearguing qualified\nimmunity. The district court denied their motion and Cassidy and Hunter\nappealed.\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\ncourt affirmed the district court’s denial of summary judgment on the Coles’\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\n\n\n\n\n 19 The Coles filed an initial complaint in September 2012. The officers moved\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\nreply to the immunity defense. The district court then afforded the Coles opportunity\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\nThe officers then filed a second motion to dismiss.\n\n 9\n\n No. 14-10228 c/w No. 15-10045\n\nFourteenth Amendment false-charge claim, and reversed the denial as to the\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\nthe qualified immunity defense applicable for these claims. The officers\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\nSupreme Court granted certiorari, vacated the panel’s judgment, and\nremanded the case for further consideration in light of Mullenix v. Luna, 20\ndecided in the intervening time. 21\n On remand from the Supreme Court, recognizing that its jurisdiction\nwas limited to determining the materiality of factual disputes that the district\ncourt determined were genuine, the panel once again held that the\napplicability of qualified immunity for Cassidy and Hunter could not be\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\nremand order reached no further, the panel reinstated the Cole I opinion on\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\nrehearing en banc, which we granted. 24\n\n\n\n\n 20 136 S. Ct. 305 (2015).\n 21 As this court and others have acknowledged, when the Supreme Court\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\n\n378, 379 (5th Cir. 2019).\n 23 Id. at 341–42.\n 24 Cole, 915 F.3d at 379.\n\n\n\n\n 10\n\n No. 14-10228 c/w No. 15-10045\n\n II\n A.\n We hear this case on remand from the Court for further consideration in\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\nimposition of false charges. 26 Second, finding qualified immunity applicable,\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\nqualified immunity applicable, we reverse the denial of the motion to dismiss\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\nviolation. 28\n\n\n\n\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\ndetention can violate the Fourth Amendment not only when it precedes, but also\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\n“Manuel does not address the availability of due process challenges after a legal\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\n 26 See Cole I, 802 F.3d at 766–74.\n 27 See id. at 764–65.\n 28 See id. at 765.\n\n\n\n\n 11\n\n No. 14-10228 c/w No. 15-10045\n\n B.\n The qualified immunity inquiry includes two parts. In the first we ask\nwhether the officer’s alleged conduct has violated a federal right; in the second\nwe ask whether the right in question was “clearly established” at the time of\nthe alleged violation, such that the officer was on notice of the unlawfulness of\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\nviolation, or if the conduct did not violate law clearly established at the time. 30\n On an appeal of a denial of summary judgment on the basis of qualified\nimmunity, our jurisdiction is limited to examining the materiality of factual\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\nappeal we cannot challenge the district court’s assessments regarding the\nsufficiency of the evidence—that is, the question whether there is enough\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\nlack jurisdiction to resolve the genuineness of any factual disputes” and\n“consider only whether the district court erred in assessing the legal\nsignificance of the conduct that the district court deemed sufficiently supported\nfor purposes of summary judgment.” 33 Like the district court, we must view\nthe facts and draw reasonable inferences in the light most favorable to the\nplaintiff and ask whether the defendant would be entitled to qualified\n\n\n\n\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\n 30 Id.\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\n\nthe determination of qualified immunity would require the resolution of a genuinely\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\n\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\n 33 Id. (internal quotations omitted).\n\n\n\n\n 12\n\n No. 14-10228 c/w No. 15-10045\n\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\ncourt for failing to take the evidence and draw factual inferences in the non-\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\nemphasized that the requirement is no less binding “even when . . . a court\ndecides only the clearly-established prong of the standard.” 36 Within the\nlimited scope of our inquiry, review is de novo. 37\n As instructed, we turn to the guidance provided by the Supreme Court\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\nan officer who had shot and killed a fugitive in a car chase. This court had\ndecided that the officer violated the clearly established rule that deadly force\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\nsome threat of harm, but we had held the threat was not “sufficient.” The\nSupreme Court reversed our decision. It found that the rule we articulated\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\nnot reasonably derive an applicable rule to govern his or her conduct in the\nsituation. 41 Finding that we had defined the applicable rule with too much\n\n\n\n\n 34 Lytle, 560 F.3d at 409.\n 35 Tolan, 572 U.S. at 660.\n 36 Id. at 657.\n 37 Trent, 776 F.3d at 376.\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\n 39 Id. at 309.\n 40 Id. at 309–10.\n 41 Id.\n\n\n\n\n 13\n\n No. 14-10228 c/w No. 15-10045\n\n“generality,” 42 the Court reversed our holding that the officer had violated\nclearly established law. 43\n Under Mullenix, application of clearly established law is undertaken\nwith close attention to the relevant legal rule and the particular facts of the\ncase. Here, based on the facts taken in the light most favorable to the non-\nmovant Coles, and with reasonable inferences drawn in their favor, the district\ncourt determined there were genuine factual disputes as to Ryan’s and the\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\npose an immediate threat to the officers” when they opened fire. 44 It held that\n“on October 25, 2010, the date of the shooting, the law was clearly established”\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\nentire time at his own head and facing away from the officer, in an open\noutdoor area, and who was unaware of the officer’s presence because no\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\ndetail, the officers ask us to consider a different set of facts, but we cannot do\nso. We lack jurisdiction to reconsider the district court’s factual determinations\non an appeal from denial of summary judgment on qualified immunity.\n Tennessee v. Garner announced the principle that the use of deadly force\nis permitted only to protect the life of the shooting officer or others: “Where the\nsuspect poses no immediate threat to the officer and no threat to others, the\nharm resulting from failing to apprehend him does not justify the use of deadly\n\n\n\n\n 42 Id. at 311.\n 43 Id. at 312.\n 44 Cole, 68 F. Supp. 3d at 645.\n 45 Id. at 643.\n\n\n\n\n 14\n\n No. 14-10228 c/w No. 15-10045\n\nforce to do so.” 46 Garner also requires a warning before deadly force is used\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\nobvious cases, and this court has applied it in such cases, without dependence\non the fact patterns of other cases. 48\n The summary judgment facts, as determined by the district court, are\nthat Ryan posed no threat to the officers or others to support firing without\nwarning. The “Officers had the time and opportunity to give a warning and yet\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\nbeen facing him and pointing a gun at him.\n This case is obvious when we accept the facts as we must. It is also\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\nthis stage—was unlawful. For in Baker, members of the public told Officer\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\nduring spring break, that “someone had entered the crowd with a pistol-\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\n\n\n\n\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\n\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\n2012).\n 49 Cole, 68 F. Supp. 3d at 645.\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\n\n\n\n\n 15\n\n No. 14-10228 c/w No. 15-10045\n\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\npeople directed the officer to a car in which the gunman was supposedly\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\n[Baker] took no threatening action . . . as the officer approached the truck,”\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\nparties did not dispute that Putnal had been searching for a gunman, and that\na gun had been recovered from Baker’s seat, although they disputed whether\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\nIt was also undisputed that Baker was turning to face Putnal from his seat,\nalthough medical reports indicated from “the nature of the wounds . . . that\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\nThe district court granted Putnal qualified immunity, crediting his account\n\n\n\n\n 51 Id.\n 52 Id. at 198.\n 53 Id. at 193.\n 54 Id.\n 55 Id. at 198.\n 56 Id.\n 57 Id.\n 58 Id.\n 59 Id. at 193.\n\n\n\n\n 16\n\n No. 14-10228 c/w No. 15-10045\n\nthat he had fired in response to Baker turning and aiming the gun at him. 60\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\nposition of Baker’s gun, we found “simply too many factual issues to permit the\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\nreasons to find that [the officer’s] use of force was not excessive as a matter of\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\nto the nonmoving party,” we held that “[t]he number of shots and the nature\nof the wounds raise . . . more of a question of fact than a court may dispose of\non summary judgment.” 64\n The Supreme Court’s more recent qualified immunity decisions do not\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\nresponded to a call that a woman was behaving erratically with a knife and\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\napproached to within “striking distance” of a bystander in the driveway. 66 One\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\n\n\n\n\n 60 Id. at 197.\n 61 Id. at 198.\n 62 Id.\n 63 Id.\n 64 Id. at 198–99.\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\n 66 Id.; id. at 1154.\n\n\n\n\n 17\n\n No. 14-10228 c/w No. 15-10045\n\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\nHughes brought a Section 1983 excessive force claim against Kisela. 69\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\nrefusal to follow his repeated commands to drop the knife while within striking\ndistance of the bystander—obstinance that heightened the risk of immediate\nharm to another—the law did not clearly establish that the officer’s resort to\ndeadly force was unlawful. 70\n In this case, Officers Cassidy and Hunter found themselves in a search\nfor a suicidal teenager who they knew had already encountered fellow officers\nand walked away from them with his gun to his head, non-responsive, but\nwithout aggressive action. The circumstances of the officers’ encounter with\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\nthe officers, whether and how he turned and aimed his gun, and whether\nHunter warned Ryan to disarm himself. The district court here defined the\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\nviewing these disputes in a light most favorable to the Coles, concluded that a\nreasonable jury could find that Ryan made no threatening or provocative\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\nthe district court concluded that a reasonable jury could find Cassidy and\n\n\n\n\n 67 Id. at 1151.\n 68 Id.\n 69 Id.\n 70 Id. at 1153.\n\n\n 18\n\n No. 14-10228 c/w No. 15-10045\n\nHunter opened fire upon Ryan without warning, even though it was feasible.\nOn these facts, the officers’ conduct violates clearly established law.\n Rather than engage on the facts as we must take them at the summary\njudgment stage, the officers repeatedly argue from a different set of facts.\nWhile the district court found that Ryan was initially facing away from the\nofficers when they fired the first shot, the officers now describe his “armed turn\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\naimed at his own head and never pointed it at the officers, the officers now\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\nthen only momentarily turned back towards Ryan’s head at the moment he\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\npointed toward him—a story prosecutors accepted until a ballistics report\nexposed its impossibility). And although the district court found that Ryan was\nnot given an opportunity to disarm himself, the officers contend that he was\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\nargument to us as a full court, and in the teeth of those found by the district\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\nestablished law in 2010 put the officers’ response of firing in self-defense\nbeyond the law.\n The Coles and amicus Cato Institute are correct that it is beyond our\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\n“[I]f an excessive force claim turns on which of two conflicting stories best\ncaptures what happened on the street,” the caselaw “will not permit summary\n\n\n\n\n 19\n\n No. 14-10228 c/w No. 15-10045\n\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\nWhereas the officers will have a chance to present their factual narrative—and\nto question the Coles’—at trial, they cannot contest the facts in the current\nappeal. 72\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Randy Cole v. Michael Hunter\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-21\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nREVISED August 21, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 14-10228 August 20, 2019\\n Lyle W. Cayce\\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\\n\\n\\n Plaintiffs-Appellees\\nv.\\n\\nCARL CARSON,\\n\\n Defendant-Appellant\\n\\n ****************\\n\\n\\n No. 15-10045\\n\\n\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs-Appellees\\nv.\\n\\nMICHAEL HUNTER; MARTIN CASSIDY,\\n\\n Defendants-Appellants\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n _______________________\\n\\n ON PETITION FOR REHEARING EN BANC FOLLOWING\\n REMAND FROM THE UNITED STATES SUPREME COURT\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n\\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\\nOLDHAM, Circuit Judges.\\n\\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\\nJENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA\\nHAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA,\\nand KURT D. ENGELHARDT, Circuit Judges: 1\\n\\n The Supreme Court over several years has developed protection from\\ncivil liability for persons going about their tasks as government workers in the\\nform of immunity; not the absolute immunity enjoyed by prosecutors and\\njudges, but a qualified immunity. Today we again repair to issues inherent in\\nthe qualification. The doctrine protects at the earliest stage of litigation at\\nwhich the defense’s application is determinable. To that end, courts have\\ndeveloped procedures and pretrial practices, including appellate review of\\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\\nanswer under Rule 7(a) on order of the district court, particularized to address\\nthe defense of immunity in a motion to dismiss or for summary judgment.\\nWhen those processes do not yield pretrial resolution, as with competing\\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\\nfirst point at which its application is determinable. And in obeisance to\\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\\na jury—long a bastion interposed between the state and person, and assured\\nby the Founders. And it signifies that today the district judge has multiple\\n\\n\\n\\n\\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\\nparticipating as members of the original panel.\\n\\n 2\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nways to present fully the claims and defenses to a jury to ensure the\\ngovernment worker a full draw upon his immunity defense, 2 including\\nresolution of the competing factual narratives, one of which—or a meld of\\nboth—may foreclose liability. 3\\n In this case, police officers from Sachse, Texas argue that the district\\ncourt should have sustained their defense of qualified immunity on their\\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\\nwhat happened. The officers filed dispositive pretrial motions in the district\\ncourt, asserting the defense of qualified immunity. The district court denied\\nthese motions, concluding that immunity could not be determined at this stage\\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\\n\\n\\n\\n\\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\\n 3 In any treatment of the jury’s role in stepping between state-afforded process\\n\\nand an individual defendant, it bears emphasis that the district judge can impanel a\\njury of at least six and as many as twelve members whose verdict, absent the parties’\\nagreement otherwise, must be unanimous.\\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\\n\\nHunter v. Cole, 137 S. Ct. 497 (2016).\\n\\n\\n 3\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\\nthe denial of summary judgment as to the excessive-force claim. Because the\\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\\nlight of Mullenix.\\n We conclude that it will be for a jury, and not judges, to resolve the\\ncompeting factual narratives as detailed in the district court opinion and the\\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims based on qualified\\nimmunity; and return the case to the district court for trial and resolution of\\nissues consistent with this opinion.\\n I\\n A.\\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\\nDepartment called available units to the neighboring town of Garland, Texas.\\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\\n\\n\\n\\n\\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\\ncuriam)).\\n\\n 4\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nreported to be walking in the neighborhood with a handgun. Officer Michael\\nHunter responded by proceeding immediately to the Garland neighborhood. In\\na statement given on the day of the incident, Hunter related that on arriving\\nin the neighborhood, he overheard a civilian stating that Ryan had given up\\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\\nkeep his handgun. Hunter searched the area, and saw two officers following\\nRyan, who was walking away from them holding his gun to his head,\\napproaching a wooded area along Highway 78. Although told by officers that\\nthings were under control, Hunter volunteered to go behind the wooded area\\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\\nalso present, join him.\\n Four years later, after this litigation had commenced, Hunter for the first\\ntime recalled that the civilian he had overheard had described an altercation\\nwith Ryan in which Ryan had threatened him. He also then for the first time\\nrecalled hearing police-radio transmissions indicating that officers were\\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\\na risk of serious harm to a great many innocent in the vicinity.” Hunter\\notherwise learned nothing “that would cause [him] to believe [Ryan] was\\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\\nand, four years after the incident, he also raised the possibility that Ryan was\\nusing suicide as a pretext to evade the police.\\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\\ninformation. On the day of the incident, Cassidy swore that he learned “this\\n\\n\\n\\n\\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\\n\\n 5\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nsubject had shown up at [a] residence with a handgun and had just recently\\nbeen seen walking away.” But, four years later, after this litigation had\\ncommenced, like Hunter, Cassidy remembered learning more, including that\\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\\nan order to drop his weapon; and might be headed for Sachse High School “to\\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\\nHighway 78.\\n The three officers separately arrived at the side of Highway 78 at around\\nthe same time. Hunter parked his motorbike and drew his duty weapon;\\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\\nThe officers started walking along the tree line. A steep embankment rose from\\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\\nembankment to approach the tree line. Cassidy and Hunter used both the edge\\nof the embankment and the vegetation to conceal themselves as they walked.\\nHunter also removed his white motorcycle helmet in order to be less\\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\\nascending to the tree line. Hunter heard movement in the brush, and signaled\\nto his colleagues.\\n What occurred next is disputed. Viewing the summary judgment\\nevidence and drawing reasonable inferences in the light most favorable to the\\nnon-movant Coles, the district court determined that a reasonable jury could\\nfind the following: Ryan backed out from the tree line in front of Hunter and\\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\\n\\n\\n\\n\\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\\nin a light most favorable to the Coles, the district court relied on the physical and\\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\\n\\n\\n 6\\n\\n No. 14-10228 c/w No. 15-10045\\n\\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\\nat the Officers,” 9 and “never made a threatening or provocative gesture\\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\\nnot know that.\\n Following the shooting, the three officers remained together at the scene.\\nThe Coles allege that during this time the officers conspired to insulate Cassidy\\nand Hunter from liability with a fabricated narrative in which Ryan was facing\\nHunter and pointed his weapon at the officer, at which point Cassidy and\\n\\n\\n\\n\\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\\nhave been aware of the presence of the police officers prior to the time he was shot.”\\n 8 Cole, 68 F. Supp. 3d at 644.\\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\\n\\nargument that Cole did not know of the Officers’ presence.”).\\n 10 Cole, 68 F. Supp. 3d at 645–46.\\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\\n\\nduring which they could have called out to Cole, sufficient time to make a warning\\naccording to Cole’s expert.\\n 12 Cole, 68 F. Supp. 3d at 645.\\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\\n 14 Id. at 644.\\n 15 Cole, 68 F. Supp. 3d at 644.\\n 16 Id.\\n\\n\\n 7\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\\nDepartment arrived and took control of the scene, but did not follow the\\nstandard procedure of separating witnesses to ensure independent\\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\\npolice station together. Later that day, the officers provided statements to\\ninvestigators. Hunter stated that he had no chance to issue a command to\\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\\nstated that Ryan then turned towards Hunter and pointed his handgun at\\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\\ndefensively. 17\\n The Dallas County District Attorney presented the officers’ narrative to\\na grand jury, which no-billed the officers and charged Ryan with felony\\naggravated assault of a public servant. As a result of the charge, Ryan,\\nincapacitated in intensive care, was placed under house arrest. About a month\\nafter the indictment, investigators received a ballistics report from the crime\\nlab. The ballistics analysis, taken together with stippling observed around\\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\\n Ryan suffered permanent injuries, including cognitive impairment,\\npartial paralysis, and other serious mental and physical disabilities.\\n\\n\\n\\n\\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\\nhis line of sight.\\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\\n\\nreleased immediately around a discharging firearm.\\n\\n 8\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The Coles brought, inter alia, four Section 1983 claims against the\\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\\nagainst the use of excessive force arising from the shooting. Second, the Coles\\nallege a violation of Ryan’s Fourteenth Amendment right against the\\nimposition of false charges arising from the fabrication of evidence. Third, they\\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\\nviolation arising from the fabrication of evidence. The officers filed a motion to\\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\\ndefenses. The district court denied the motion in a January 2014 Memorandum\\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\\nqualified immunity defenses to the excessive-force claim. With that discovery\\ncomplete, the two officers moved for summary judgment, rearguing qualified\\nimmunity. The district court denied their motion and Cassidy and Hunter\\nappealed.\\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\\ncourt affirmed the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\\n\\n\\n\\n\\n 19 The Coles filed an initial complaint in September 2012. The officers moved\\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\\nreply to the immunity defense. The district court then afforded the Coles opportunity\\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\\nThe officers then filed a second motion to dismiss.\\n\\n 9\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nFourteenth Amendment false-charge claim, and reversed the denial as to the\\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\\nthe qualified immunity defense applicable for these claims. The officers\\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\\nSupreme Court granted certiorari, vacated the panel’s judgment, and\\nremanded the case for further consideration in light of Mullenix v. Luna, 20\\ndecided in the intervening time. 21\\n On remand from the Supreme Court, recognizing that its jurisdiction\\nwas limited to determining the materiality of factual disputes that the district\\ncourt determined were genuine, the panel once again held that the\\napplicability of qualified immunity for Cassidy and Hunter could not be\\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\\nremand order reached no further, the panel reinstated the Cole I opinion on\\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\\nrehearing en banc, which we granted. 24\\n\\n\\n\\n\\n 20 136 S. Ct. 305 (2015).\\n 21 As this court and others have acknowledged, when the Supreme Court\\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\\n\\n378, 379 (5th Cir. 2019).\\n 23 Id. at 341–42.\\n 24 Cole, 915 F.3d at 379.\\n\\n\\n\\n\\n 10\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II\\n A.\\n We hear this case on remand from the Court for further consideration in\\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\\nimposition of false charges. 26 Second, finding qualified immunity applicable,\\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\\nqualified immunity applicable, we reverse the denial of the motion to dismiss\\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\\nviolation. 28\\n\\n\\n\\n\\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\\ndetention can violate the Fourth Amendment not only when it precedes, but also\\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\\n“Manuel does not address the availability of due process challenges after a legal\\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\\n 26 See Cole I, 802 F.3d at 766–74.\\n 27 See id. at 764–65.\\n 28 See id. at 765.\\n\\n\\n\\n\\n 11\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The qualified immunity inquiry includes two parts. In the first we ask\\nwhether the officer’s alleged conduct has violated a federal right; in the second\\nwe ask whether the right in question was “clearly established” at the time of\\nthe alleged violation, such that the officer was on notice of the unlawfulness of\\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\\nviolation, or if the conduct did not violate law clearly established at the time. 30\\n On an appeal of a denial of summary judgment on the basis of qualified\\nimmunity, our jurisdiction is limited to examining the materiality of factual\\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\\nappeal we cannot challenge the district court’s assessments regarding the\\nsufficiency of the evidence—that is, the question whether there is enough\\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\\nlack jurisdiction to resolve the genuineness of any factual disputes” and\\n“consider only whether the district court erred in assessing the legal\\nsignificance of the conduct that the district court deemed sufficiently supported\\nfor purposes of summary judgment.” 33 Like the district court, we must view\\nthe facts and draw reasonable inferences in the light most favorable to the\\nplaintiff and ask whether the defendant would be entitled to qualified\\n\\n\\n\\n\\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\\n 30 Id.\\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\\n\\nthe determination of qualified immunity would require the resolution of a genuinely\\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\\n\\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\\n 33 Id. (internal quotations omitted).\\n\\n\\n\\n\\n 12\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\\ncourt for failing to take the evidence and draw factual inferences in the non-\\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\\nemphasized that the requirement is no less binding “even when . . . a court\\ndecides only the clearly-established prong of the standard.” 36 Within the\\nlimited scope of our inquiry, review is de novo. 37\\n As instructed, we turn to the guidance provided by the Supreme Court\\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\\nan officer who had shot and killed a fugitive in a car chase. This court had\\ndecided that the officer violated the clearly established rule that deadly force\\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\\nsome threat of harm, but we had held the threat was not “sufficient.” The\\nSupreme Court reversed our decision. It found that the rule we articulated\\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\\nnot reasonably derive an applicable rule to govern his or her conduct in the\\nsituation. 41 Finding that we had defined the applicable rule with too much\\n\\n\\n\\n\\n 34 Lytle, 560 F.3d at 409.\\n 35 Tolan, 572 U.S. at 660.\\n 36 Id. at 657.\\n 37 Trent, 776 F.3d at 376.\\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\\n 39 Id. at 309.\\n 40 Id. at 309–10.\\n 41 Id.\\n\\n\\n\\n\\n 13\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n“generality,” 42 the Court reversed our holding that the officer had violated\\nclearly established law. 43\\n Under Mullenix, application of clearly established law is undertaken\\nwith close attention to the relevant legal rule and the particular facts of the\\ncase. Here, based on the facts taken in the light most favorable to the non-\\nmovant Coles, and with reasonable inferences drawn in their favor, the district\\ncourt determined there were genuine factual disputes as to Ryan’s and the\\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\\npose an immediate threat to the officers” when they opened fire. 44 It held that\\n“on October 25, 2010, the date of the shooting, the law was clearly established”\\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\\nentire time at his own head and facing away from the officer, in an open\\noutdoor area, and who was unaware of the officer’s presence because no\\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\\ndetail, the officers ask us to consider a different set of facts, but we cannot do\\nso. We lack jurisdiction to reconsider the district court’s factual determinations\\non an appeal from denial of summary judgment on qualified immunity.\\n Tennessee v. Garner announced the principle that the use of deadly force\\nis permitted only to protect the life of the shooting officer or others: “Where the\\nsuspect poses no immediate threat to the officer and no threat to others, the\\nharm resulting from failing to apprehend him does not justify the use of deadly\\n\\n\\n\\n\\n 42 Id. at 311.\\n 43 Id. at 312.\\n 44 Cole, 68 F. Supp. 3d at 645.\\n 45 Id. at 643.\\n\\n\\n\\n\\n 14\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nforce to do so.” 46 Garner also requires a warning before deadly force is used\\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\\nobvious cases, and this court has applied it in such cases, without dependence\\non the fact patterns of other cases. 48\\n The summary judgment facts, as determined by the district court, are\\nthat Ryan posed no threat to the officers or others to support firing without\\nwarning. The “Officers had the time and opportunity to give a warning and yet\\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\\nbeen facing him and pointing a gun at him.\\n This case is obvious when we accept the facts as we must. It is also\\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\\nthis stage—was unlawful. For in Baker, members of the public told Officer\\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\\nduring spring break, that “someone had entered the crowd with a pistol-\\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\\n\\n\\n\\n\\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\\n\\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\\n2012).\\n 49 Cole, 68 F. Supp. 3d at 645.\\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\\n\\n\\n\\n\\n 15\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\\npeople directed the officer to a car in which the gunman was supposedly\\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\\n[Baker] took no threatening action . . . as the officer approached the truck,”\\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\\nparties did not dispute that Putnal had been searching for a gunman, and that\\na gun had been recovered from Baker’s seat, although they disputed whether\\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\\nIt was also undisputed that Baker was turning to face Putnal from his seat,\\nalthough medical reports indicated from “the nature of the wounds . . . that\\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\\nThe district court granted Putnal qualified immunity, crediting his account\\n\\n\\n\\n\\n 51 Id.\\n 52 Id. at 198.\\n 53 Id. at 193.\\n 54 Id.\\n 55 Id. at 198.\\n 56 Id.\\n 57 Id.\\n 58 Id.\\n 59 Id. at 193.\\n\\n\\n\\n\\n 16\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthat he had fired in response to Baker turning and aiming the gun at him. 60\\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\\nposition of Baker’s gun, we found “simply too many factual issues to permit the\\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\\nreasons to find that [the officer’s] use of force was not excessive as a matter of\\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\\nto the nonmoving party,” we held that “[t]he number of shots and the nature\\nof the wounds raise . . . more of a question of fact than a court may dispose of\\non summary judgment.” 64\\n The Supreme Court’s more recent qualified immunity decisions do not\\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\\nresponded to a call that a woman was behaving erratically with a knife and\\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\\napproached to within “striking distance” of a bystander in the driveway. 66 One\\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\\n\\n\\n\\n\\n 60 Id. at 197.\\n 61 Id. at 198.\\n 62 Id.\\n 63 Id.\\n 64 Id. at 198–99.\\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\\n 66 Id.; id. at 1154.\\n\\n\\n\\n\\n 17\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\\nHughes brought a Section 1983 excessive force claim against Kisela. 69\\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\\nrefusal to follow his repeated commands to drop the knife while within striking\\ndistance of the bystander—obstinance that heightened the risk of immediate\\nharm to another—the law did not clearly establish that the officer’s resort to\\ndeadly force was unlawful. 70\\n In this case, Officers Cassidy and Hunter found themselves in a search\\nfor a suicidal teenager who they knew had already encountered fellow officers\\nand walked away from them with his gun to his head, non-responsive, but\\nwithout aggressive action. The circumstances of the officers’ encounter with\\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\\nthe officers, whether and how he turned and aimed his gun, and whether\\nHunter warned Ryan to disarm himself. The district court here defined the\\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\\nviewing these disputes in a light most favorable to the Coles, concluded that a\\nreasonable jury could find that Ryan made no threatening or provocative\\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\\nthe district court concluded that a reasonable jury could find Cassidy and\\n\\n\\n\\n\\n 67 Id. at 1151.\\n 68 Id.\\n 69 Id.\\n 70 Id. at 1153.\\n\\n\\n 18\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter opened fire upon Ryan without warning, even though it was feasible.\\nOn these facts, the officers’ conduct violates clearly established law.\\n Rather than engage on the facts as we must take them at the summary\\njudgment stage, the officers repeatedly argue from a different set of facts.\\nWhile the district court found that Ryan was initially facing away from the\\nofficers when they fired the first shot, the officers now describe his “armed turn\\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\\naimed at his own head and never pointed it at the officers, the officers now\\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\\nthen only momentarily turned back towards Ryan’s head at the moment he\\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\\npointed toward him—a story prosecutors accepted until a ballistics report\\nexposed its impossibility). And although the district court found that Ryan was\\nnot given an opportunity to disarm himself, the officers contend that he was\\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\\nargument to us as a full court, and in the teeth of those found by the district\\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\\nestablished law in 2010 put the officers’ response of firing in self-defense\\nbeyond the law.\\n The Coles and amicus Cato Institute are correct that it is beyond our\\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\\n“[I]f an excessive force claim turns on which of two conflicting stories best\\ncaptures what happened on the street,” the caselaw “will not permit summary\\n\\n\\n\\n\\n 19\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\\nWhereas the officers will have a chance to present their factual narrative—and\\nto question the Coles’—at trial, they cannot contest the facts in the current\\nappeal. 72\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3684,"cells":{"id":{"kind":"number","value":4654484,"string":"4,654,484"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Randy Cole v. Michael Hunter"},"decision_date":{"kind":"string","value":"2019-08-21"},"docket_number":{"kind":"string","value":"15-10045"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH, DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"type\": \"010combined\", \"text\": \"Case: 14-10228 Document: 00515085664 Page: 1 Date Filed: 08/21/2019\\n\\n\\n\\n\\n REVISED August 21, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 14-10228 August 20, 2019\\n Lyle W. Cayce\\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\\n\\n\\n Plaintiffs-Appellees\\nv.\\n\\nCARL CARSON,\\n\\n Defendant-Appellant\\n\\n ****************\\n\\n\\n No. 15-10045\\n\\n\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs-Appellees\\nv.\\n\\nMICHAEL HUNTER; MARTIN CASSIDY,\\n\\n Defendants-Appellants\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n _______________________\\n\\n ON PETITION FOR REHEARING EN BANC FOLLOWING\\n REMAND FROM THE UNITED STATES SUPREME COURT\\n\\n Case: 14-10228 Document: 00515085664 Page: 2 Date Filed: 08/21/2019\\n\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n\\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\\nOLDHAM, Circuit Judges.\\n\\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\\nJENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA\\nHAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA,\\nand KURT D. ENGELHARDT, Circuit Judges: 1\\n\\n The Supreme Court over several years has developed protection from\\ncivil liability for persons going about their tasks as government workers in the\\nform of immunity; not the absolute immunity enjoyed by prosecutors and\\njudges, but a qualified immunity. Today we again repair to issues inherent in\\nthe qualification. The doctrine protects at the earliest stage of litigation at\\nwhich the defense’s application is determinable. To that end, courts have\\ndeveloped procedures and pretrial practices, including appellate review of\\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\\nanswer under Rule 7(a) on order of the district court, particularized to address\\nthe defense of immunity in a motion to dismiss or for summary judgment.\\nWhen those processes do not yield pretrial resolution, as with competing\\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\\nfirst point at which its application is determinable. And in obeisance to\\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\\na jury—long a bastion interposed between the state and person, and assured\\nby the Founders. And it signifies that today the district judge has multiple\\n\\n\\n\\n\\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\\nparticipating as members of the original panel.\\n\\n 2\\n\\n Case: 14-10228 Document: 00515085664 Page: 3 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nways to present fully the claims and defenses to a jury to ensure the\\ngovernment worker a full draw upon his immunity defense, 2 including\\nresolution of the competing factual narratives, one of which—or a meld of\\nboth—may foreclose liability. 3\\n In this case, police officers from Sachse, Texas argue that the district\\ncourt should have sustained their defense of qualified immunity on their\\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\\nwhat happened. The officers filed dispositive pretrial motions in the district\\ncourt, asserting the defense of qualified immunity. The district court denied\\nthese motions, concluding that immunity could not be determined at this stage\\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\\n\\n\\n\\n\\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\\n 3 In any treatment of the jury’s role in stepping between state-afforded process\\n\\nand an individual defendant, it bears emphasis that the district judge can impanel a\\njury of at least six and as many as twelve members whose verdict, absent the parties’\\nagreement otherwise, must be unanimous.\\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\\n\\nHunter v. Cole, 137 S. Ct. 497 (2016).\\n\\n\\n 3\\n\\n Case: 14-10228 Document: 00515085664 Page: 4 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\\nthe denial of summary judgment as to the excessive-force claim. Because the\\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\\nlight of Mullenix.\\n We conclude that it will be for a jury, and not judges, to resolve the\\ncompeting factual narratives as detailed in the district court opinion and the\\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims based on qualified\\nimmunity; and return the case to the district court for trial and resolution of\\nissues consistent with this opinion.\\n I\\n A.\\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\\nDepartment called available units to the neighboring town of Garland, Texas.\\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\\n\\n\\n\\n\\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\\ncuriam)).\\n\\n 4\\n\\n Case: 14-10228 Document: 00515085664 Page: 5 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nreported to be walking in the neighborhood with a handgun. Officer Michael\\nHunter responded by proceeding immediately to the Garland neighborhood. In\\na statement given on the day of the incident, Hunter related that on arriving\\nin the neighborhood, he overheard a civilian stating that Ryan had given up\\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\\nkeep his handgun. Hunter searched the area, and saw two officers following\\nRyan, who was walking away from them holding his gun to his head,\\napproaching a wooded area along Highway 78. Although told by officers that\\nthings were under control, Hunter volunteered to go behind the wooded area\\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\\nalso present, join him.\\n Four years later, after this litigation had commenced, Hunter for the first\\ntime recalled that the civilian he had overheard had described an altercation\\nwith Ryan in which Ryan had threatened him. He also then for the first time\\nrecalled hearing police-radio transmissions indicating that officers were\\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\\na risk of serious harm to a great many innocent in the vicinity.” Hunter\\notherwise learned nothing “that would cause [him] to believe [Ryan] was\\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\\nand, four years after the incident, he also raised the possibility that Ryan was\\nusing suicide as a pretext to evade the police.\\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\\ninformation. On the day of the incident, Cassidy swore that he learned “this\\n\\n\\n\\n\\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\\n\\n 5\\n\\n Case: 14-10228 Document: 00515085664 Page: 6 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nsubject had shown up at [a] residence with a handgun and had just recently\\nbeen seen walking away.” But, four years later, after this litigation had\\ncommenced, like Hunter, Cassidy remembered learning more, including that\\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\\nan order to drop his weapon; and might be headed for Sachse High School “to\\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\\nHighway 78.\\n The three officers separately arrived at the side of Highway 78 at around\\nthe same time. Hunter parked his motorbike and drew his duty weapon;\\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\\nThe officers started walking along the tree line. A steep embankment rose from\\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\\nembankment to approach the tree line. Cassidy and Hunter used both the edge\\nof the embankment and the vegetation to conceal themselves as they walked.\\nHunter also removed his white motorcycle helmet in order to be less\\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\\nascending to the tree line. Hunter heard movement in the brush, and signaled\\nto his colleagues.\\n What occurred next is disputed. Viewing the summary judgment\\nevidence and drawing reasonable inferences in the light most favorable to the\\nnon-movant Coles, the district court determined that a reasonable jury could\\nfind the following: Ryan backed out from the tree line in front of Hunter and\\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\\n\\n\\n\\n\\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\\nin a light most favorable to the Coles, the district court relied on the physical and\\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\\n\\n\\n 6\\n\\n Case: 14-10228 Document: 00515085664 Page: 7 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\\nat the Officers,” 9 and “never made a threatening or provocative gesture\\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\\nnot know that.\\n Following the shooting, the three officers remained together at the scene.\\nThe Coles allege that during this time the officers conspired to insulate Cassidy\\nand Hunter from liability with a fabricated narrative in which Ryan was facing\\nHunter and pointed his weapon at the officer, at which point Cassidy and\\n\\n\\n\\n\\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\\nhave been aware of the presence of the police officers prior to the time he was shot.”\\n 8 Cole, 68 F. Supp. 3d at 644.\\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\\n\\nargument that Cole did not know of the Officers’ presence.”).\\n 10 Cole, 68 F. Supp. 3d at 645–46.\\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\\n\\nduring which they could have called out to Cole, sufficient time to make a warning\\naccording to Cole’s expert.\\n 12 Cole, 68 F. Supp. 3d at 645.\\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\\n 14 Id. at 644.\\n 15 Cole, 68 F. Supp. 3d at 644.\\n 16 Id.\\n\\n\\n 7\\n\\n Case: 14-10228 Document: 00515085664 Page: 8 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\\nDepartment arrived and took control of the scene, but did not follow the\\nstandard procedure of separating witnesses to ensure independent\\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\\npolice station together. Later that day, the officers provided statements to\\ninvestigators. Hunter stated that he had no chance to issue a command to\\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\\nstated that Ryan then turned towards Hunter and pointed his handgun at\\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\\ndefensively. 17\\n The Dallas County District Attorney presented the officers’ narrative to\\na grand jury, which no-billed the officers and charged Ryan with felony\\naggravated assault of a public servant. As a result of the charge, Ryan,\\nincapacitated in intensive care, was placed under house arrest. About a month\\nafter the indictment, investigators received a ballistics report from the crime\\nlab. The ballistics analysis, taken together with stippling observed around\\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\\n Ryan suffered permanent injuries, including cognitive impairment,\\npartial paralysis, and other serious mental and physical disabilities.\\n\\n\\n\\n\\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\\nhis line of sight.\\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\\n\\nreleased immediately around a discharging firearm.\\n\\n 8\\n\\n Case: 14-10228 Document: 00515085664 Page: 9 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The Coles brought, inter alia, four Section 1983 claims against the\\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\\nagainst the use of excessive force arising from the shooting. Second, the Coles\\nallege a violation of Ryan’s Fourteenth Amendment right against the\\nimposition of false charges arising from the fabrication of evidence. Third, they\\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\\nviolation arising from the fabrication of evidence. The officers filed a motion to\\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\\ndefenses. The district court denied the motion in a January 2014 Memorandum\\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\\nqualified immunity defenses to the excessive-force claim. With that discovery\\ncomplete, the two officers moved for summary judgment, rearguing qualified\\nimmunity. The district court denied their motion and Cassidy and Hunter\\nappealed.\\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\\ncourt affirmed the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\\n\\n\\n\\n\\n 19 The Coles filed an initial complaint in September 2012. The officers moved\\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\\nreply to the immunity defense. The district court then afforded the Coles opportunity\\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\\nThe officers then filed a second motion to dismiss.\\n\\n 9\\n\\n Case: 14-10228 Document: 00515085664 Page: 10 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nFourteenth Amendment false-charge claim, and reversed the denial as to the\\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\\nthe qualified immunity defense applicable for these claims. The officers\\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\\nSupreme Court granted certiorari, vacated the panel’s judgment, and\\nremanded the case for further consideration in light of Mullenix v. Luna, 20\\ndecided in the intervening time. 21\\n On remand from the Supreme Court, recognizing that its jurisdiction\\nwas limited to determining the materiality of factual disputes that the district\\ncourt determined were genuine, the panel once again held that the\\napplicability of qualified immunity for Cassidy and Hunter could not be\\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\\nremand order reached no further, the panel reinstated the Cole I opinion on\\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\\nrehearing en banc, which we granted. 24\\n\\n\\n\\n\\n 20 136 S. Ct. 305 (2015).\\n 21 As this court and others have acknowledged, when the Supreme Court\\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\\n\\n378, 379 (5th Cir. 2019).\\n 23 Id. at 341–42.\\n 24 Cole, 915 F.3d at 379.\\n\\n\\n\\n\\n 10\\n\\n Case: 14-10228 Document: 00515085664 Page: 11 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II\\n A.\\n We hear this case on remand from the Court for further consideration in\\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\\nimposition of false charges. 26 Second, finding qualified immunity applicable,\\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\\nqualified immunity applicable, we reverse the denial of the motion to dismiss\\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\\nviolation. 28\\n\\n\\n\\n\\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\\ndetention can violate the Fourth Amendment not only when it precedes, but also\\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\\n“Manuel does not address the availability of due process challenges after a legal\\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\\n 26 See Cole I, 802 F.3d at 766–74.\\n 27 See id. at 764–65.\\n 28 See id. at 765.\\n\\n\\n\\n\\n 11\\n\\n Case: 14-10228 Document: 00515085664 Page: 12 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The qualified immunity inquiry includes two parts. In the first we ask\\nwhether the officer’s alleged conduct has violated a federal right; in the second\\nwe ask whether the right in question was “clearly established” at the time of\\nthe alleged violation, such that the officer was on notice of the unlawfulness of\\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\\nviolation, or if the conduct did not violate law clearly established at the time. 30\\n On an appeal of a denial of summary judgment on the basis of qualified\\nimmunity, our jurisdiction is limited to examining the materiality of factual\\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\\nappeal we cannot challenge the district court’s assessments regarding the\\nsufficiency of the evidence—that is, the question whether there is enough\\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\\nlack jurisdiction to resolve the genuineness of any factual disputes” and\\n“consider only whether the district court erred in assessing the legal\\nsignificance of the conduct that the district court deemed sufficiently supported\\nfor purposes of summary judgment.” 33 Like the district court, we must view\\nthe facts and draw reasonable inferences in the light most favorable to the\\nplaintiff and ask whether the defendant would be entitled to qualified\\n\\n\\n\\n\\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\\n 30 Id.\\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\\n\\nthe determination of qualified immunity would require the resolution of a genuinely\\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\\n\\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\\n 33 Id. (internal quotations omitted).\\n\\n\\n\\n\\n 12\\n\\n Case: 14-10228 Document: 00515085664 Page: 13 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\\ncourt for failing to take the evidence and draw factual inferences in the non-\\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\\nemphasized that the requirement is no less binding “even when . . . a court\\ndecides only the clearly-established prong of the standard.” 36 Within the\\nlimited scope of our inquiry, review is de novo. 37\\n As instructed, we turn to the guidance provided by the Supreme Court\\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\\nan officer who had shot and killed a fugitive in a car chase. This court had\\ndecided that the officer violated the clearly established rule that deadly force\\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\\nsome threat of harm, but we had held the threat was not “sufficient.” The\\nSupreme Court reversed our decision. It found that the rule we articulated\\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\\nnot reasonably derive an applicable rule to govern his or her conduct in the\\nsituation. 41 Finding that we had defined the applicable rule with too much\\n\\n\\n\\n\\n 34 Lytle, 560 F.3d at 409.\\n 35 Tolan, 572 U.S. at 660.\\n 36 Id. at 657.\\n 37 Trent, 776 F.3d at 376.\\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\\n 39 Id. at 309.\\n 40 Id. at 309–10.\\n 41 Id.\\n\\n\\n\\n\\n 13\\n\\n Case: 14-10228 Document: 00515085664 Page: 14 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n“generality,” 42 the Court reversed our holding that the officer had violated\\nclearly established law. 43\\n Under Mullenix, application of clearly established law is undertaken\\nwith close attention to the relevant legal rule and the particular facts of the\\ncase. Here, based on the facts taken in the light most favorable to the non-\\nmovant Coles, and with reasonable inferences drawn in their favor, the district\\ncourt determined there were genuine factual disputes as to Ryan’s and the\\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\\npose an immediate threat to the officers” when they opened fire. 44 It held that\\n“on October 25, 2010, the date of the shooting, the law was clearly established”\\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\\nentire time at his own head and facing away from the officer, in an open\\noutdoor area, and who was unaware of the officer’s presence because no\\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\\ndetail, the officers ask us to consider a different set of facts, but we cannot do\\nso. We lack jurisdiction to reconsider the district court’s factual determinations\\non an appeal from denial of summary judgment on qualified immunity.\\n Tennessee v. Garner announced the principle that the use of deadly force\\nis permitted only to protect the life of the shooting officer or others: “Where the\\nsuspect poses no immediate threat to the officer and no threat to others, the\\nharm resulting from failing to apprehend him does not justify the use of deadly\\n\\n\\n\\n\\n 42 Id. at 311.\\n 43 Id. at 312.\\n 44 Cole, 68 F. Supp. 3d at 645.\\n 45 Id. at 643.\\n\\n\\n\\n\\n 14\\n\\n Case: 14-10228 Document: 00515085664 Page: 15 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nforce to do so.” 46 Garner also requires a warning before deadly force is used\\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\\nobvious cases, and this court has applied it in such cases, without dependence\\non the fact patterns of other cases. 48\\n The summary judgment facts, as determined by the district court, are\\nthat Ryan posed no threat to the officers or others to support firing without\\nwarning. The “Officers had the time and opportunity to give a warning and yet\\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\\nbeen facing him and pointing a gun at him.\\n This case is obvious when we accept the facts as we must. It is also\\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\\nthis stage—was unlawful. For in Baker, members of the public told Officer\\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\\nduring spring break, that “someone had entered the crowd with a pistol-\\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\\n\\n\\n\\n\\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\\n\\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\\n2012).\\n 49 Cole, 68 F. Supp. 3d at 645.\\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\\n\\n\\n\\n\\n 15\\n\\n Case: 14-10228 Document: 00515085664 Page: 16 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\\npeople directed the officer to a car in which the gunman was supposedly\\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\\n[Baker] took no threatening action . . . as the officer approached the truck,”\\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\\nparties did not dispute that Putnal had been searching for a gunman, and that\\na gun had been recovered from Baker’s seat, although they disputed whether\\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\\nIt was also undisputed that Baker was turning to face Putnal from his seat,\\nalthough medical reports indicated from “the nature of the wounds . . . that\\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\\nThe district court granted Putnal qualified immunity, crediting his account\\n\\n\\n\\n\\n 51 Id.\\n 52 Id. at 198.\\n 53 Id. at 193.\\n 54 Id.\\n 55 Id. at 198.\\n 56 Id.\\n 57 Id.\\n 58 Id.\\n 59 Id. at 193.\\n\\n\\n\\n\\n 16\\n\\n Case: 14-10228 Document: 00515085664 Page: 17 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthat he had fired in response to Baker turning and aiming the gun at him. 60\\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\\nposition of Baker’s gun, we found “simply too many factual issues to permit the\\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\\nreasons to find that [the officer’s] use of force was not excessive as a matter of\\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\\nto the nonmoving party,” we held that “[t]he number of shots and the nature\\nof the wounds raise . . . more of a question of fact than a court may dispose of\\non summary judgment.” 64\\n The Supreme Court’s more recent qualified immunity decisions do not\\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\\nresponded to a call that a woman was behaving erratically with a knife and\\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\\napproached to within “striking distance” of a bystander in the driveway. 66 One\\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\\n\\n\\n\\n\\n 60 Id. at 197.\\n 61 Id. at 198.\\n 62 Id.\\n 63 Id.\\n 64 Id. at 198–99.\\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\\n 66 Id.; id. at 1154.\\n\\n\\n\\n\\n 17\\n\\n Case: 14-10228 Document: 00515085664 Page: 18 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\\nHughes brought a Section 1983 excessive force claim against Kisela. 69\\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\\nrefusal to follow his repeated commands to drop the knife while within striking\\ndistance of the bystander—obstinance that heightened the risk of immediate\\nharm to another—the law did not clearly establish that the officer’s resort to\\ndeadly force was unlawful. 70\\n In this case, Officers Cassidy and Hunter found themselves in a search\\nfor a suicidal teenager who they knew had already encountered fellow officers\\nand walked away from them with his gun to his head, non-responsive, but\\nwithout aggressive action. The circumstances of the officers’ encounter with\\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\\nthe officers, whether and how he turned and aimed his gun, and whether\\nHunter warned Ryan to disarm himself. The district court here defined the\\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\\nviewing these disputes in a light most favorable to the Coles, concluded that a\\nreasonable jury could find that Ryan made no threatening or provocative\\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\\nthe district court concluded that a reasonable jury could find Cassidy and\\n\\n\\n\\n\\n 67 Id. at 1151.\\n 68 Id.\\n 69 Id.\\n 70 Id. at 1153.\\n\\n\\n 18\\n\\n Case: 14-10228 Document: 00515085664 Page: 19 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter opened fire upon Ryan without warning, even though it was feasible.\\nOn these facts, the officers’ conduct violates clearly established law.\\n Rather than engage on the facts as we must take them at the summary\\njudgment stage, the officers repeatedly argue from a different set of facts.\\nWhile the district court found that Ryan was initially facing away from the\\nofficers when they fired the first shot, the officers now describe his “armed turn\\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\\naimed at his own head and never pointed it at the officers, the officers now\\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\\nthen only momentarily turned back towards Ryan’s head at the moment he\\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\\npointed toward him—a story prosecutors accepted until a ballistics report\\nexposed its impossibility). And although the district court found that Ryan was\\nnot given an opportunity to disarm himself, the officers contend that he was\\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\\nargument to us as a full court, and in the teeth of those found by the district\\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\\nestablished law in 2010 put the officers’ response of firing in self-defense\\nbeyond the law.\\n The Coles and amicus Cato Institute are correct that it is beyond our\\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\\n“[I]f an excessive force claim turns on which of two conflicting stories best\\ncaptures what happened on the street,” the caselaw “will not permit summary\\n\\n\\n\\n\\n 19\\n\\n Case: 14-10228 Document: 00515085664 Page: 20 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\\nWhereas the officers will have a chance to present their factual narrative—and\\nto question the Coles’—at trial, they cannot contest the facts in the current\\nappeal. 72\", \"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART\"}, {\"type\": \"dissent\", \"author\": \"The\", \"text\": \"The dissents also take issue with the disputed facts. Judge Duncan\\nfocuses on what he terms “undisputed pre-encounter events.” But, particularly\\nin light of the officers’ evolving stories, it is disputed whether any of the events\\nrecounted were known to Hunter or Cassidy when they fired on Ryan. The\\ndissent cites to the reports and affidavits of other officers and individuals to\\ndescribe the events occurring before Hunter and Cassidy were called to the\\nscene. 73 But looking at the evidence in the light most favorable to the Coles,\\nHunter and Cassidy were not aware of the disturbance at the Coles’ house the\\nprevious night, the alleged cache of weapons left at the Reeds’ house, Ryan’s\\nalleged suicidal threat, or his threat to shoot anyone who came near him.\\n And of course, what matters is what the defendant officers knew when\\nthey shot Ryan. See, e.g., White v. Pauly, 137 S. Ct. 548, 550 (2017) (per curiam)\\n(“Because this case concerns the defense of qualified immunity . . . the Court\\n\\n\\n\\n\\n 71 Saucier v. Katz, 533 U.S. 194, 216 (2001) (Ginsburg, J. concurring). see also\\nTolan, 572 U.S. at 660; id. at 662 (Alito, J., joined by Scalia, J., concurring in the\\njudgment) (agreeing that “summary judgment should not have been granted” in that\\ncase because of the genuine issues of material fact); Lytle, 560 F.3d at 408–09.\\n 72 Cf. Tolan, 572 U.S. at 660 (“The witnesses on both sides come to this case\\n\\nwith their own perceptions, recollections, and even potential biases. It is in part for\\nthat reason that genuine disputes are generally resolved by juries in our adversarial\\nsystem. By weighing the evidence and reaching factual inferences contrary to [the\\nplaintiff’s] competent evidence, the court below neglected to adhere to the\\nfundamental principle that at the summary judgment stage, reasonable inferences\\nshould be drawn in favor of the nonmoving party.”).\\n 73 Recall that Hunter was a late-arriving officer who was not instructed by the\\n\\nSachse or Garland police departments to pursue Ryan. See supra at 4.\\n\\n 20\\n\\n Case: 14-10228 Document: 00515085664 Page: 21 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nconsiders only the facts that were knowable to the defendant officers.”);\\nKingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015) (stressing that “a court\\nmust judge the reasonableness of the force used from the perspective and with\\nthe knowledge of the defendant officer”). The dissents overlook the\\nfundamental reason most of these facts should not be part of the analysis: we\\nconsider only what the officers knew at the time of their challenged conduct.\\n“Facts an officer learns after the incident ends—whether those facts would\\nsupport granting immunity or denying it—are not relevant.” Hernandez v.\\nMesa, 137 S. Ct. 2003, 2007 (2017) (per curiam); see also Brown v. Callahan,\\n623 F.3d 249, 253 (“An official’s actions must be judged in light of the\\ncircumstances that confronted him, without the benefit of hindsight.” (citing\\nGraham v. Connor, 490 U.S. 386, 396–97 (1989))). Despite the many “red flags”\\nlisted by the dissents as known to others, only those known to Hunter and\\nCassidy are relevant to the qualified immunity analysis.\\n Judge Jones’s dissent fares no better in addressing some of the key facts\\nof the shooting itself. Contrary to its assertion, the district court found that\\nRyan was facing at a 90-degree angle away from the officers when he was first\\nshot. Cole, 68 F. Supp. 3d at 644. As for the “warning,” the district court found\\nthat a reasonable jury could conclude that Ryan “was not given an opportunity\\nto disarm himself before he was shot.” Id. Relitigating the district court’s\\nassessment of factual disputes is not our role on interlocutory review.\\n What Hunter and Cassidy knew before shooting at Ryan, whether they\\nwarned him before doing so, and what actions Ryan took before being shot are\\nall disputed. The district court must afford Cassidy and Hunter qualified\\nimmunity at the earliest point the defense’s applicability is determinable.\\nHere, we have not yet reached that point. It will be for a jury to resolve what\\n\\n\\n\\n\\n 21\\n\\n Case: 14-10228 Document: 00515085664 Page: 22 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhappened on October 25, 2010. The district court did not err in denying the\\nofficers qualified immunity at the summary judgment stage.\\n III\\n The district court determined that genuine disputes of fact regarding\\nCassidy’s and Hunter’s entitlement to qualified immunity remain. We\\nAFFIRM the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim and DISMISS Cassidy and Hunter’s appeal; AFFIRM\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-\\ncharges claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims; and return the case to\\nthe district court for trial and resolution of issues consistent with this opinion.\\n\\n\\n\\n\\n 22\\n\\n Case: 14-10228 Document: 00515085664 Page: 23 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nJENNIFER WALKER ELROD, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and EDITH BROWN CLEMENT, CATHARINA HAYNES,\\nSTEPHEN A. HIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT,\"}, {\"author\": \"Circuit Judges, concurring\", \"type\": \"concurrence\", \"text\": \"Circuit Judges, concurring:\\n\\n\\n I concur fully in the majority opinion. Despite the outcry of the\\ndissenting opinions, there is no new law being made or old law being ignored.\\nThe majority opinion takes no position on the public policy issues of the day\\nregarding policing and the mentally ill. Rather, it follows the longstanding en\\nbanc rule that “we lack jurisdiction to review the genuineness of a fact issue”\\non an interlocutory appeal of a denial of summary judgment based on qualified\\nimmunity. Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc)\\n(quoting Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016)); Kinney v. Weaver,\\n367 F.3d 337, 341, 346–47 (5th Cir. 2004) (en banc). As the able district court\\ndetermined, the facts are very much in dispute.\\n\\n\\n\\n\\n 23\\n\\n Case: 14-10228 Document: 00515085664 Page: 24 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nEDITH H. JONES, Circuit Judge, joined by SMITH, OWEN, HO, DUNCAN\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431737/\", \"author_raw\": \"Circuit Judges, concurring\"}, {\"author\": \"and OLDHAM, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"and OLDHAM, Circuit Judges, dissenting:\\n\\n\\n What “clearly established law” says that only a rogue cop would have\\nshot at this mentally disturbed teenager within 3 to 5 seconds as the teen\\nemerged from dense bushes ten to twenty feet away from Officer Hunter and,\\nwith his finger on the trigger of a loaded pistol pointed in the direction of his\\nown head, began turning in the officer’s direction? The majority state this is\\nan “obvious case” for the denial of qualified immunity: the officers could not\\nshoot without first announcing themselves to Cole or looking down the barrel\\nof his gun. What is so obvious? Contrary to the majority’s dangerously\\nunrealistic proposition, “action beats reaction” every time. Ontiveros v. City of\\nRosenberg, 564 F.3d 379, 384 (5th Cir. 2009). Neither we nor the Supreme\\nCourt has ever held that police officers confronted in close quarters with a\\nsuspect armed and ready to shoot must hope they are faster on the draw and\\nmore accurate. The increasingly risky profession of law enforcement cannot\\nput those sworn to “serve and protect” to a Hobson’s choice: place their lives on\\nthe line by heroic forbearance or risk their financial security in defense of\\nlawsuits. The Supreme Court has repeatedly stated in plain terms that the\\npurpose of qualified immunity is to prevent precisely this quandary.\\n Respectfully dissenting, we are convinced that the Supreme Court’s\\nremand from the original panel opinion denying immunity meant something;\\nthe governing Supreme Court law is foursquare in the corner of\\n\\n\\n\\n\\n 24\\n\\n Case: 14-10228 Document: 00515085664 Page: 25 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nOfficers Hunter and Cassidy; and they were entitled to receive summary\\njudgment confirming their immunity from suit, not simply from liability. 1\\n I. Background\\n A. Undisputed facts\\n The majority opinion paints a picture of the relevant facts that has\\nevolved considerably from the first and second panel opinions to this final\\nmajority version. Compare Cole v. Carson, 802 F.3d 752, 755-56, 758 (5th Cir.\\n2015), vacated sub nom. Hunter v. Cole, 137 S. Ct. 497 (Cole I), with Cole v.\\nCarson, 905 F.3d 334, 337-340 (5th Cir. 2018) (Cole II), and supra. Qualified\\nimmunity for the use of deadly force is assessed at the moment a law\\nenforcement officer confronts a suspect, Graham v. Connor, 490 U.S. 386, 397,\\n109 S. Ct. 1865, 1872 (1989), but the officer’s understanding of facts leading up\\nto the event color the question whether “a reasonable officer” could have\\nbelieved his life or the lives of others were endangered. White v. Pauly,\\n137 S. Ct. 548, 550, 552 (2017). To the majority’s picture, it is necessary to add\\nundisputed facts recited in the prior opinions and undisputed evidence from\\nplaintiffs’ experts. Hornbook summary judgment law holds that although\\ndisputed facts are viewed in the light most favorable to non-movants, the entire\\nrecord must be considered. Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769,\\n1776 (2007). Further, this court reviews de novo the materiality of the relevant\\nfacts. Foley v. Univ. of Houston, Sys., 355 F.3d 333, 337 (5th Cir. 2003).\\n\\n\\n\\n\\n 1 We do not challenge the majority’s decision to leave in place fabricated evidence\\ncharges against these two officers and Officer Carson. Only Carson, who was present at the\\nencounter but did not shoot, appealed the district court’s refusal to dismiss that claim. The\\nSupreme Court has not been clear on the constitutional basis for such a claim, so we have no\\nground to criticize the majority. Compare Manuel v. City of Joliet, 137 S. Ct. 911 (2017), with\\nMcDonough v. Smith, 139 S. Ct. 2149 (2019), (refusing to rule on the constitutional grounding\\nof such claims).\\n\\n 25\\n\\n Case: 14-10228 Document: 00515085664 Page: 26 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n First, both officers who shot at Cole were aware that he had mental\\nissues. Officer Cassidy had learned that Cole “had threatened to shoot anyone\\nwho tried to take his gun and had refused an order to drop his weapon.” Cole\\nII, 905 F.3d at 338. Officer Hunter watched Cole walk steadily down the train\\ntracks ignoring other police who were yelling at him to stop and put down his\\n9 mm semi-automatic pistol. Both officers were aware that a bulletin had been\\ndisseminated about Cole to all law enforcement in Garland and Sachse, and\\nthree nearby schools in the vicinity of Highway 78, where Cole was heading,\\nwere being protected. Cole II, 905 F.3d at 337-38.\\n Second, Cole emerged from the vegetation, unaware of the officers’\\npresence, within ten to twenty feet of Officer Hunter, and as he turned toward\\nthe officers, three to five seconds elapsed. That’s less time than it takes to read\\nthe preceding sentence. Cole initially stood at a 90 degree angle to the police\\nand then began turning counterclockwise toward them. His movement is\\nconceded by plaintiffs’ expert, supported by the ballistic evidence, and\\nrecounted in the district court opinion. Cole II, 905 F.3d at 338 (“Cole began\\nto turn counterclockwise.”). Plaintiff’s expert opines this interval was\\nsufficient for the officers to command Cole to disarm and observe his reaction.\\n Third, his loaded pistol was pointed within thirty inches toward his head,\\nCole I, 802 F.3d at 756, and Cole’s finger was on the trigger.\\n Next, the officers fired seven shots, two of which hit Cole.\\nOfficer Hunter’s first shot hit Cole in the left arm, penetrating his body from\\nthe left. Another of Hunter’s shots merely grazed Cole’s left arm as he\\ncontinued to turn and was facing Hunter. Cole II, 905 F.3d at 339. Cole’s gun,\\naccording to the plaintiffs, involuntarily discharged and hit him in the head,\\n“leaving stippling—gunpowder residue around the wound due to the gun being\\nfired from less than thirty inches away.” Cole I, 802 F.3d at 756.\\n\\n\\n 26\\n\\n Case: 14-10228 Document: 00515085664 Page: 27 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Finally, the bodycam evidence shows that some officer began to issue a\\nwarning at about the time the shooting started. Cole II, 905 F.3d at 338.\\n B. Prior panel reasoning\\n The district court denied qualified immunity to Hunter and Cassidy for\\nthe shooting 2 and refused to dismiss the allegations of falsified evidence\\nagainst Hunter, Cassidy, and Carson.\\n The original panel opinion affirmed, 3 concluding as to the excessive force\\nallegation that “if the Coles’ version of the evidence is believed, it was not\\nobjectively reasonable to use deadly force against Ryan Cole when the teenager\\nemerged on foot from the wooded area with a gun to his own head and turned\\nleft.” With regard to immunity, the panel held that by October 2010,\\n“reasonable officers were on notice that they could not lawfully use deadly force\\nto stop a fleeing person who did not pose a severe and immediate risk to the\\nofficers or others, and they had many examples of the sorts of threatening\\nactions which could justify deadly force. Turning left while unaware of an\\nofficer’s presence is not among them.” Cole I, 802 F.3d at 762 (emphasis added)\\n(footnote omitted). The panel’s principal support for its legal reasoning was\\nLuna v. Mullenix, 773 F.3d 712 (5th Cir. 2014), rev’d sub nom. Mullenix v.\\nLuna, 136 S. Ct. 305 (2015). According to the panel, “the central [disputed]\\nissue” is “whether Ryan pointed his gun at Officer Hunter.” Cole I, 802 F.3d\\n\\n\\n\\n\\n Query why Officer Cassidy, whose shots didn’t hit the victim, can be sued? This\\n 2\\n\\ncourt has held that qualified immunity must be applied individually to each defendant.\\nMeadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007). But no one raised the point here.\\n\\n The correct disposition if this court agrees there are material fact issues in dispute\\n 3\\n\\nregarding qualified immunity would be to dismiss the appeal, because our appellate\\njurisdiction exists only over questions of law. Mitchell v. Forsyth, 472 U.S. 511, 529-30,\\n105 S. Ct. 2806, 2816-17 (1985).\\n\\n 27\\n\\n Case: 14-10228 Document: 00515085664 Page: 28 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nat 762. Absent such a threatening gesture, Cole was said to present no\\nsufficient threat. Id.\\n The next panel opinion was formulated after the Supreme Court\\nreversed us in Mullenix on the grounds that “none of our [the Supreme Court’s\\nown] precedents ‘squarely governs’ the facts here. Given [the suspect’s]\\nconduct, we cannot say that only someone ‘plainly incompetent’ or who\\n‘knowingly violate[s] the law’ would have perceived a sufficient threat and\\nacted as [the officer] did.” 136 S. Ct. at 310. On this second go-round, the panel\\nconceded the deficiency of the “no sufficient threat” rule, but then concluded\\nthat, taken in the light most favorable to the plaintiffs, Cole’s conduct posed\\n“no threat” when he was shot, Cole II, 905 F.3d at 343, and the officers\\ntherefore violated a clearly established “no threat” rule. Tennessee v. Garner\\nis cited as the basis for this “bright line” rule. 4 471 U.S. 1, 105 S. Ct. 1694\\n(1985). This opinion was vacated by a vote to reconsider the case en banc.\\n C. The Current Majority Opinion\\n Pivoting yet again, the en banc majority opinion commences with a\\npaean to “the worker’s . . . right to the protection of a jury,” not even bothering\\nto cite Supreme Court authorities that explain why qualified immunity is\\nimmunity from suit, not just liability. The majority opinion omits or ignores\\nmaterial undisputed facts recited above—the knowledge of the officers, Cole’s\\nturning toward them, the significance of his finger in a loaded pistol, and the\\n\\n\\n\\n\\n 4The panel curiously described so-called clearly established law in both of its opinions\\nwith references to unpublished, non-precedential Fifth Circuit cases. The Supreme Court\\nhas expressed uncertainty over whether any circuit court cases, as opposed to its own\\ndecisions, may set out “clearly established law.” See Dist. of Columbia v. Wesby, 138 S. Ct.\\n577, 591 n. 8 (2018); Carroll v. Carman, 135 S. Ct. 348, 350 (2014); Reichle v. Howards,\\n566 U.S. 658, 665-66, 132 S. Ct. 2088, 2094 (2012). It is incredible that this court would cite\\nour avowedly non-precedential decisions for that purpose.\\n\\n 28\\n\\n Case: 14-10228 Document: 00515085664 Page: 29 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthree to five second interval—and hides behind the assertion that, relevant to\\nqualified immunity, there are “genuine factual disputes as to Ryan’s and the\\nofficers’ conduct” such that a reasonable jury could find that Cole posed no\\n“immediate threat” to the officers or others. Two paragraphs later, asserting\\nthat Cole posed “no threat . . . to support firing without warning,” the majority\\ndeem this an “obvious case” for denial of immunity, because the “officers had\\ntime and opportunity to give a warning and yet chose to shoot first instead.”\\nThe “obvious case” rationale again derives, in the majority’s view, from Garner,\\nfortified only by one Fifth Circuit case and the Supreme Court’s decision in\\nKisela v Hughes. 5\\n DISCUSSION\\n The only legal question that needs to be addressed by this court is\\nwhether, under the circumstances of this five-second confrontation, every\\nreasonable police officer would have reasonably perceived no life-threatening\\ndanger such that deadly force could be used to incapacitate Cole without a\\npreliminary warning. Put otherwise, as a matter of law, was it clearly\\nestablished that officers may not fire on a suspect, armed and ready to shoot a\\npistol, who is turning in their direction with one of their brethren ten to twenty\\nfeet away, unless the gun barrel points at them or they first shout a warning\\nand await his response?\\n The majority deny qualified immunity, seeming to answer on the basis\\nof “disputed fact issues” that Cole posed “no threat.” The majority’s reasoning\\n\\n\\n\\n\\n 5 This dissent focuses on the majority opinion because Appellees’ briefing offered\\nnothing in addition to the meager authorities cited by the majority to support their “clearly\\nestablished law” theory.\\n\\n\\n\\n\\n 29\\n\\n Case: 14-10228 Document: 00515085664 Page: 30 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nis at too high a level of generality. And the majority ignore the critical criterion\\nfor qualified immunity in Fourth Amendment cases: the reasonableness of the\\nofficers’ reasonable perceptions. In sum, the majority here double down on the\\nmistakes that got our court reversed in Mullenix. 6\\n Before discussing these problems in detail, it is necessary to recapitulate\\nthe reasoning behind the Supreme Court’s qualified immunity cases. The\\nmajority’s bare mention of the standards for qualified immunity ignores the\\nCourt’s rationale for the defense. Beginning with Monroe v. Pape in 1961, the\\nSupreme Court unleashed federal courts to enforce constitutional commands\\nagainst state actors pursuant to 42 U.S.C. § 1983. See Monroe v. Pape,\\n365 U.S. 167, 187, 81 S. Ct. 473, 484 (1961). A foreseeable consequence of\\nfacilitating such lawsuits was that a deluge of litigation would follow, at least\\nsome of it ill-founded or frivolous. What was to be done to limit claims to those\\nthat might have merit? The Court decided in Pierson v. Ray that police officers\\nsued under Section 1983 should enjoy qualified immunity accorded at common\\nlaw. 386 U.S. 547, 556-57, 87 S. Ct. 1213, 1219 (1967).\\n For over fifty years, the Court has developed the standards of qualified\\nimmunity, well aware from the beginning that “the local police officer” is “that\\nsegment of the executive branch . . . that is most frequently and intimately\\ninvolved in day-to-day contacts with the citizenry, and hence, most frequently\\nexposed to situations which can give rise to claims under Sec. 1983 . . . .”\\nScheuer v. Rhodes, 416 U.S. 232, 244-45, 94 S. Ct. 1683, 1691-92 (1974). The\\n\\n\\n\\n\\n 6 In Mullenix, the Supreme Court reversed this court and held an officer entitled as a\\nmatter of law to qualified immunity when he shot, and killed, a suspect fleeing from the police\\nin his car at high speed. Following Mullenix, the Supreme Court vacated the judgment and\\nremanded Cole I, no doubt in part because Cole I heavily relied on the reversed panel decision\\nin Mullenix.\\n\\n 30\\n\\n Case: 14-10228 Document: 00515085664 Page: 31 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nbreadth of this shield represents a deliberate balance between affording a\\ndamages remedy for constitutional abuses and the social and personal costs\\ninflicted by meritless claims. Anderson v. Creighton, 483 U.S. 635, 638,\\n107 S. Ct. 3034, 3038 (1987). The costs to society include the costs of litigation,\\nthe diversion of limited public resources, the deterrence of able people from\\ngoing into public service, and the danger that fear of being sued will discourage\\nofficials from vigorously performing their jobs. Id.; Harlow v. Fitzgerald,\\n457 U.S. 800, 814, 102 S. Ct. 2727, 2736 (1982). The devastating costs imposed\\nby unfounded lawsuits on officers otherwise entitled to immunity are\\nreputational, potentially employment-related, financial and emotional. For\\nthese reasons, the Court has repeatedly explained that qualified immunity\\nshields public officials not just from liability but from suit. See Mitchell v.\\nForsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815 (1985); Pearson v. Callahan,\\n555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (“Qualified immunity is lost if a\\ncase is erroneously permitted to go to trial.”). Some in the lower federal courts\\nmay disapprove of the Court’s half century of authorities, but we may not\\nfunctionally disregard them.\\n Nearly as venerable as the general defense of qualified immunity are the\\ndecisions applying it to Fourth Amendment claims against law enforcement\\nofficers. Anderson v. Creighton affirmed in 1987 that a law enforcement officer\\nwho participates in a warrantless search may be entitled to qualified immunity\\n“if he could establish as a matter of law that a reasonable officer could have\\nbelieved the search to be lawful.” 483 U.S. at 638, 107 S. Ct. at 3038.\\nJustice Scalia’s opinion reminded that “qualified immunity protects all but the\\nplainly incompetent or those who knowingly violate the law.” Id. (internal\\nquotation marks omitted). In determining the objective legal reasonableness\\nof the allegedly unlawful action, “[i]t should not be surprising . . . that our cases\\n\\n\\n 31\\n\\n Case: 14-10228 Document: 00515085664 Page: 32 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nestablish that the right the official is alleged to have violated must have been\\n‘clearly established’ in a more particularized, and hence more relevant, sense:\\nThe contours of the right must be sufficiently clear that a reasonable official\\nwould understand that what he is doing violates that right.” Id. at 640,\\n107 S. Ct. at 3039.\\n Two years later, the Court clarified that for alleged Fourth Amendment\\nexcessive force violations, reasonableness “must be judged from the perspective\\nof a reasonable officer on the scene, rather than with the 20/20 vision of\\nhindsight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872. The calculus of\\n“reasonableness must embody allowance for the fact that police officers are\\noften forced to make split-second judgments—in circumstances that are tense,\\nuncertain, and rapidly evolving—about the amount of force that is necessary\\nin a particular situation.” Id. at 396-97, 109 S. Ct. at 1872. Ultimately, “the\\nquestion is whether the officers’ actions are ‘objectively reasonable’ in light of\\nthe facts and circumstances confronting them . . . .” Id. at 397, 109 S. Ct. at\\n1872. Quoting these statements from Graham, the Court later explained that\\nthe test for qualified immunity for excessive force “has a further dimension” in\\naddition to the deferential, on-the-scene evaluation of objective\\nreasonableness. Saucier v. Katz, 533 U.S. 194, 205, 121 S. Ct. 2151, 2158\\n(2001). Justice Kennedy explained: “The concern of the immunity inquiry is to\\nacknowledge that reasonable mistakes can be made as to the legal constraints\\non particular police conduct.” Id. “Qualified immunity operates in this case,\\nthen, just as it does in others, to protect officers from the sometimes hazy\\nborder between excessive and acceptable force and to ensure that before they\\nare subjected to suit, officers are on notice their conduct is unlawful.” Id. at\\n206, 121 S. Ct. at 2158 (internal citation and quotation marks omitted).\\n\\n\\n\\n\\n 32\\n\\n Case: 14-10228 Document: 00515085664 Page: 33 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Evaluating the qualified immunity defense is thus a two-step process.\\nThe first is to determine whether the Fourth Amendment has been violated by\\nconduct that, viewed from the officer’s perspective and information at the time,\\nis objectively unreasonable. 7 The second step assesses the objective legal\\nreasonableness of the action, that is, whether every reasonable officer would\\nhave known that the conduct in question was illegal. See Pearson, 555 U.S. at\\n232, 129 S. Ct. at 815-16. The illegality must have been apparent, as held in\\ncases that are factually similar to the situation confronting the officer. White,\\n137 S. Ct. at 542. Immunity must be granted to all but the plainly incompetent\\nor those who knowingly violate the law. The Supreme Court has enforced\\nimmunity where officers acted negligently, Anderson, 483 U.S. at 641,\\n107 S. Ct. at 3039-40; or when they could have used another method to subdue\\na suspect, Mullenix, 136 S. Ct at 310; or when the law governing their behavior\\nin particular circumstances is unclear. White, 137 S. Ct. at 552. The Court\\nemphasizes that the specificity of the applicable “clearly established” rule is\\nespecially important in Fourth Amendment cases. Mullenix, 136 S. Ct. at 308.\\n By denying plaintiffs their “day in court” at a preliminary stage,\\nqualified immunity operates as a counterintuitive, albeit vital, defense. Thus,\\nthe Supreme Court has regularly reversed denials of qualified immunity where\\nlower courts misapplied the standards. See Wesby v. District of Columbia,\\n816 F.3d 96, 102 (D.C. Cir. 2016) (Kavanaugh, J., dissenting) (citing eleven\\nSupreme Court cases in five years reversing lower courts in the qualified\\nimmunity context including Mullenix v. Luna, 136 S. Ct. 305 (2015), Taylor v.\\n\\n\\n\\n\\n 7 For present purposes, we “address only the qualified immunity question, not whether\\nthere was a Fourth Amendment violation in the first place.” Mullenix, 136 S. Ct. at 308;\\nPearson, 555 U.S. at 236, 129 S. Ct. at 818 (constitutional violation or qualified immunity\\nmay be decided first).\\n\\n 33\\n\\n Case: 14-10228 Document: 00515085664 Page: 34 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nBarkes, 135 S. Ct. 2042 (2015); City and County of San Francisco, Calif. v.\\nSheehan, 135 S. Ct. 1765 (2015); Carroll v. Carman, 574 U.S. 13, 135 S. Ct.\\n348 (2014); Plumhoff v. Rickard, 572 U.S. 765, 134 S. Ct. 2012 (2014); Wood v.\\nMoss, 572 U.S. 744, 134 S. Ct. 2056 (2014); Stanton v. Sims, 571 U.S. 3,\\n134 S. Ct. 3 (2013); Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 2088 (2012);\\nRyburn v. Huff, 565 U.S. 469, 132 S. Ct. 987 (2012); Messerschmidt v.\\nMillender, 565 U.S. 535, 132 S. Ct. 1235 (2012); Ashcroft v. al-Kidd, 563 U.S.\\n731, 131 S. Ct. 2074 (2011)). Unfortunately, the majority here has fallen into\\nthe trap of “letting the jury sort out the truth” despite the gravity of the\\nsituation these officers faced.\\n As explained above, it is undisputed that the two officers confronted and\\nthen shot at Cole as he emerged from dense bushes ten to twenty feet from\\nOfficer Hunter, unaware of their presence, and began to turn in their direction.\\nThis all happened within three to five seconds. While he turned, Cole held a\\nloaded 9mm semiautomatic pistol, finger on the trigger, pointed in the\\ndirection of his own head. The officers knew he was mentally distraught, had\\nignored other police commands to disarm, had issued threats, and proceeded\\nwalking in the direction of nearby schools.\\n For immunity purposes, the question phrased one way is whether any\\nreasonable officers could have believed that Cole’s split-second turning toward\\nthem posed a life-threatening danger such that lethal force was necessary.\\nAlternatively, what “clearly established law” held as of October 2010 that\\nunder all of the relevant circumstances, deadly force was not justified unless\\neither a warning was given and the suspect allowed a chance to react, or the\\nsuspect actually turned his loaded pistol on the officer? The answer here\\ndirectly parallels the Supreme Court’s reasoning in Mullenix, which the\\nmajority seriously shortchanged.\\n\\n\\n 34\\n\\n Case: 14-10228 Document: 00515085664 Page: 35 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n In Mullenix, this court had denied qualified immunity to a trooper whose\\nshot fatally wounded a suspect fleeing police in a high-speed chase. The\\nSupreme Court’s basic criticism of the panel decision was this: “In this case,\\nthe Fifth Circuit held that Mullenix violated the clearly established rule that\\na police officer may not use deadly force against a fleeing felon who does not\\npose a sufficient threat of harm to the officer or others. Yet this Court has\\npreviously considered—and rejected—almost that exact formulation of the\\nqualified immunity question in the Fourth Amendment context.” Mullenix,\\n136 S. Ct. at 308-09 (internal quotation marks and citation omitted).\\n The majority here posit as clearly established law, indeed an “obvious\\ncase,” that a police officer may not use deadly force—without prior warning—\\nagainst an armed, distraught suspect who, with finger in the pistol’s trigger,\\nposed “no threat” while turning toward an officer ten to twenty feet away. But\\nin Mullenix, the Supreme Court reversed this court because “[t]he general\\nprinciple that deadly force requires a sufficient threat hardly settles this\\nmatter.” Id. at 309. Likewise, here, the majority’s “no threat” and “obvious\\ncase” conclusions do not settle the matter of clearly established law. 8\\n That the majority here purport to extract clearly established law from\\nTennessee v. Garner was rebuked in Mullenix. The Supreme Court corrected\\nthis court by summary reversal because the Court itself had summarily\\nrejected applying the general standard of Tennessee v. Garner to deny qualified\\nimmunity. Mullenix, 136 S. Ct. at 309 (citing Brosseau v. Haugen, 543 U.S.\\n194, 199, 125 S. Ct. 596, 599 (2004)). Instead, the “correct inquiry” was\\n\\n\\n\\n\\n 8 Worse, it treats as a disputed fact issue for immunity purposes what is clearly an\\nissue of law. See Wyatt v. Fletcher, 718 F.3d 496, 502-03 (5th Cir. 2013).\\n\\n\\n 35\\n\\n Case: 14-10228 Document: 00515085664 Page: 36 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nwhether it was clearly established that the Fourth Amendment prohibited the\\nofficer’s conduct in the precise situation she confronted. Id. Including\\nMullenix and Brosseau, a series of Supreme Court cases has held that\\nTennessee v. Garner does not state “clearly established law” governing the use\\nof deadly force other than in Garner’s precise factual context, the shooting of\\nan unarmed burglary suspect fleeing away from an officer. 9 The confrontation\\nin this case with an armed, ready-to-fire suspect is “obviously” different.\\n We fail to understand how the denial of qualified immunity to Officers\\nHunter and Cassidy can be rescued simply by intoning that this is an “obvious\\ncase” under Garner. Garner affirmed the constitutionality of deadly force\\nagainst suspects when necessary to protect the life of officers or others “if,\\nwhere feasible, some warning has been given.” 471 U.S. at 11-12, 105 S. Ct. at\\n1701. 10 But Garner in no way renders “clearly established” a requirement to\\ngive a warning, and await the suspect’s response, before shooting. Nor does it\\nmandate that the suspect’s weapon be trained on the officer or others. Like\\nthe rest of the calculus surrounding Fourth Amendment reasonableness, the\\n“feasibility” of any such potentially deadly delay or factual nuance must be\\nsubjected to case-specific balancing with deference paid to the officer’s\\nreasonable perceptions in the midst of a tense situation. Graham, 490 U.S. at\\n396, 109 S. Ct. at 1872. Indeed, in describing its holding at the outset, Garner\\nstates only that “[deadly] force may not be used unless it is necessary to\\nprevent the escape [of an apparently unarmed suspected felon] and the officer\\n\\n\\n\\n\\n 9 Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018); White, 137 S. Ct. at 552.\\n\\n 10 Turning on distinctly different facts, Garner alone does not establish pertinent\\nclearly established law here, and the majority does not contend as much.\\n\\n\\n\\n\\n 36\\n\\n Case: 14-10228 Document: 00515085664 Page: 37 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhas probable cause to believe that the suspect poses a significant threat of\\ndeath or serious physical injury to the officer or others.” 471 U.S. at 3,\\n105 S. Ct. at 1697. 11 No mention of a warning appears in this introduction,\\nand “probable cause,” not a fact-specific test, is the measure of the threat of\\nharm.\\n Characterizing this case as a “no threat” or “obvious” Fourth Amendment\\nviolation is wrong for additional reasons. Whether, under the material\\nundisputed facts, Cole presented “no threat” to a reasonable police officer is\\nthe relevant issue to assess a Fourth Amendment violation. But the immunity\\nquestion, which the majority elides, is whether every reasonable officer in this\\nfactual context would have known he could not use deadly force. See Pearson,\\n555 U.S. at 232, 129 S. Ct. at 815-816. The majority’s analysis conflates these\\ninquiries. Second, the importance of grounding the inquiry in a specific factual\\ncontext cannot be overstated. In this case, if Officer Hunter had stood a\\nhundred feet away from Cole, or Cole had not been turning toward the officers,\\nor Cole had put the handgun in his pocket and wasn’t touching it, the analysis\\nof qualified immunity could be quite different. Third, describing a situation as\\nposing “no threat” is a conclusion, not an explanation or, as the majority seems\\nto think, an exception to defining clearly established law in a specific context.\\nNo doubt there are rare “obvious” cases of Fourth Amendment violations\\n\\n\\n\\n\\n 11 The majority cites Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997), for the\\nnecessity of giving a warning “where feasible” before the use of deadly force. Oddly, Colston\\nthen immediately holds that the officer there “lying on his back with Colston nearby, had to\\nimmediately decide whether to shoot. In light of the totality of the circumstances facing\\nBarnhart, Barnhart’s failure to give a warning was not objectively unreasonable.” Id. The\\nfeasibility of a warning is part of the overall Fourth Amendment analysis, not an independent\\nsine qua non of official conduct.\\n\\n\\n\\n\\n 37\\n\\n Case: 14-10228 Document: 00515085664 Page: 38 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncommitted by officers who are plainly incompetent or who knowingly violate\\nthe law. In the wide gap between acceptable and excessive uses of force,\\nhowever, immunity serves its important purpose of encouraging officers to\\nenforce the law, in “tense, uncertain and rapidly evolving” split-second\\nsituations, rather than stand down and jeopardize community safety. 12\\n In their sole, erroneous dependence on Garner, the majority, “can cite no\\ncase from [the Supreme] Court denying qualified immunity because officers\\n[entitled to apprehend Cole] selected one dangerous alternative over another.”\\nMullenix, 136 S. Ct. at 310. The Mullenix Court showed that if anything,\\n“clearly established law” was contrary to the plaintiff’s position. The Court\\ncited two prior Supreme Court car chase cases that resulted in immunity even\\nthough the fugitives—unlike the suspect in Mullenix—had not verbally\\nthreatened to kill any officers in their path. Id. at 310 (citing Scott, 550 U.S.\\nat 384, 127 S. Ct. at 1778; Plumhoff, 572 U.S. at 777, 134 S. Ct at 2022). And\\nin Mullenix itself, as here, the trooper had not warned the fugitive before\\nshooting at his speeding car. These cases “reveal[ed] the hazy legal backdrop\\nagainst which Mullenix acted,” Id. at 309. Accordingly, the Court admonished,\\n“[w]hatever can be said of the wisdom of Mullenix’s choice, this Court’s\\nprecedents do not place the conclusion that he acted unreasonably in these\\ncircumstances beyond debate.” Id. at 311 (internal quotation marks omitted).\\n Not only do the majority cite “no case” in which the Supreme Court\\ndenied qualified immunity to an officer who used deadly force against a\\n\\n\\n\\n\\n 12Compare Wesby, 138 S. Ct. at 590 (“Of course, there can be the rare obvious case,\\nwhere the unlawfulness of the officer’s conduct is sufficiently clear even though existing\\nprecedent does not address similar circumstances. But a body of relevant case law is usually\\nnecessary to clearly establish the answer with respect to probable cause.”) (internal citation\\nand quotation marks omitted).\\n\\n 38\\n\\n Case: 14-10228 Document: 00515085664 Page: 39 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nmentally distraught individual in circumstances like the present case, but to\\nthe contrary, the Court required qualified immunity in two somewhat similar\\ncases. In Sheehan, officers used deadly force to subdue a mentally ill woman\\nduring an armed confrontation. The Court restated that the Fourth\\nAmendment is not violated even if police officers, with the benefit of hindsight,\\nmay have made some mistakes, because “[t]he Constitution is not blind to ‘the\\nfact that police officers are often forced to make split-second judgments.’”\\nSheehan, 135 S. Ct. at 1775 (quoting Plumhoff, 572 U.S. at 775, 134 S. Ct. at\\n2020).\\n Even closer to this case is White v. Pauly, where an officer arriving at the\\nscene of an armed confrontation shot and killed a suspect without knowing\\nwhether his earlier-arrived colleagues had identified themselves as police.\\n137 S. Ct. at 550-51. In White, the Court chastised the lower court for\\n“misunderst[anding]” the “clearly established” analysis by relying on the\\ngeneralized pronouncements in Graham and Garner. Id. at 552. Whether\\nOfficer White should have second-guessed the preceding conduct of fellow\\nofficers hardly presented an “obvious case” pursuant to Garner. The Court\\nspeculated that perhaps, given the three-minute delay between when he\\narrived and when shots rang out, Officer White “should have realized that [a\\nwarning about police presence] was necessary before using deadly force.” Id.\\nThere is a world of difference between three minutes and three seconds, which\\nOfficer Hunter had here, and between Officer White’s securing himself behind\\na stone wall fifty feet from the suspect and Officer Hunter’s standing fully\\nexposed only ten to twenty feet away from Cole. The majority cannot reconcile\\nthe Supreme Court’s insistence upon qualified immunity in White with their\\ndenial of the defense to Officers Hunter and Cassidy.\\n\\n\\n\\n\\n 39\\n\\n Case: 14-10228 Document: 00515085664 Page: 40 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Kisela v. Hughes, cited in support of the majority, in no way articulates\\nclearly established law concerning the necessity of a warning. First, the Court\\nin Kisela overturned the Ninth Circuit’s denial of qualified immunity without\\naddressing the preliminary Fourth Amendment violation. 138 S. Ct. at 1152.\\nA decision holding only that there was no “clearly established law” cannot itself\\nhave defined “clearly established law.” The Court also criticized the Ninth\\nCircuit for failing to implement correctly the rule that an officer has not\\n“violated a clearly established right unless the right’s contours were\\nsufficiently definite that any reasonable official in the defendant’s shoes would\\nhave understood that he was violating it.” Id. at 1153 (internal quotation\\nmarks omitted). The Court catalogued all the relevant circumstances of the\\nconfrontation that provoked the shooting: a knife-armed, threatening suspect,\\nwhose bizarre behavior had been called in to 911, disobeyed officers’ commands\\nto disarm for up to one minute before they felt compelled to shoot. Id. The\\nCourt concluded, “[t]his is far from an obvious case in which any competent\\nofficer would have known that shooting Hughes to protect [the third party]\\nwould violate the Fourth Amendment.” Id. Also “far from obvious” is the case\\nbefore us, in which the officers had five seconds, not a whole minute, in which\\nto decide whether to shoot at Cole.\\n Finally, the Supreme Court’s decision in Tolan v. Cotton adds nothing to\\nthe substance of the qualified immunity discussion. In Tolan, the Court\\nenumerated four critical, disputed evidentiary contentions relating to the\\nofficer’s perception of danger to himself and thus to qualified immunity.\\n572 U.S. 650, 657-59, 134 S. Ct. 1861, 1866-67 (2014). Because this court had\\nfailed to credit the plaintiff’s disputed version of these facts, the Court vacated\\nsummary judgment for the officer and remanded without deciding any merits\\n\\n\\n\\n\\n 40\\n\\n Case: 14-10228 Document: 00515085664 Page: 41 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nissue. Id. at 657, 134 S. Ct. at 1866. In contrast, this dissent credits only\\nundisputed material facts and plaintiffs’ version of disputable facts.\\n Like this court’s panel in Mullenix, the majority here offer no controlling\\nSupreme Court precedent, including Garner, to support that “clearly\\nestablished law” mandated that the officers hold their fire until they had both\\nwarned Cole and given him a chance to drop his gun or until he pointed the\\nloaded weapon directly at them.\\n For good measure, the Mullenix Court also considered the potential\\nsimilarity of lower court decisions that dealt with qualified immunity.\\n136 S. Ct. at 311. Fifth Circuit case law, the Court noted, did not “clearly\\ndictate the conclusion that Mullenix was unjustified in perceiving grave danger\\nand responding accordingly.” Id. at 311 (citing Lytle v. Bexar County, 560 F.3d\\n404, 412 (5th Cir. 2009)). But the Court quoted with approval an Eleventh\\nCircuit case that granted immunity to a sheriff’s deputy who fatally shot a\\nmentally unstable individual “who was attempting to flee in the deputy’s car,\\neven though at the time of the shooting the individual had not yet operated the\\ncruiser dangerously. The court explained that ‘the law does not require officers\\nin a tense and dangerous situation to wait until the moment a suspect uses a\\ndeadly weapon to act to stop the suspect…’” Id. at 311 (quoting Long v. Slaton,\\n508 F.3d 576, 581-82 (11th Cir. 2007)). Here, too, the thrust of Mullenix\\ncontradicts the majority’s logic and holding.\\n Moreover, to the extent it is relevant 13, Fifth Circuit law does not support\\ndenying qualified immunity to Officers Hunter and Cassidy. The district court\\n\\n\\n\\n\\n 13 See fn. 4, supra.\\n\\n\\n\\n\\n 41\\n\\n Case: 14-10228 Document: 00515085664 Page: 42 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nand, inferentially, the majority demand that qualified immunity be granted\\nonly if the suspect either disobeys immediate commands to disarm or points\\nhis weapon at the officers. The district court described such threatening\\nactions as a Manis act. 14 It is true that in previous deadly force cases, this\\ncourt approved qualified immunity for officers who reasonably believed that a\\nnon-compliant suspect was reaching toward where he could retrieve a weapon.\\nSee Manis, 585 F.3d at 842; see also Reese v. Anderson, 926 F.2d 494, 500-01\\n(5th Cir. 1991); Young v. City of Killeen, Tx., 775 F.2d 1349, 1352 (5th Cir.\\n1985). The hitch in these particular cases is that there wasn’t actually a\\nweapon, yet the officer’s objectively reasonable perception was determinative\\nas a matter of law. In another such officer shooting case, this court upheld\\nqualified immunity where the suspect, who was being interrogated for drunk\\ndriving at the side of a freeway, turned to walk away from the officer, then\\nappeared to turn around toward him while reaching under his shirttail for\\nwhat the officer thought could be a concealed weapon. Salazar-Limon v. City\\nof Houston, 826 F.3d 272, 278 (5th Cir. 2016). This court added,\\n“[f]urthermore, …in the context of this case, it is immaterial whether Salazar\\nturned left, right, or at all before being shot. Specifically, we have never\\nrequired officers to wait until a defendant turns toward them, with weapon in\\nhand, before applying deadly force to ensure their safety.” 826 F.3d at 279 n.\\n6.\\n While a “Manis act” can sustain qualified immunity even where no\\nweapon is visible, it is not logical for an additional “act” to be mandated where\\nthe officers confront a suspect armed, ready to shoot his pistol, and turning\\ntoward them. An officer may be forced into shooting an unarmed suspect by a\\n\\n\\n\\n\\n 14 Manis v. Lawson, 585 F.3d 839 (5th Cir. 2009).\\n\\n 42\\n\\n Case: 14-10228 Document: 00515085664 Page: 43 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nManis act, and thus obtain qualified immunity. But it is perverse and\\ninconsistent with Fifth Circuit law to hold that the officer has no qualified\\nimmunity because she is constitutionally forbidden to shoot an armed suspect\\nin close quarters without either looking down the barrel of the weapon or\\nawaiting his response to her command.\\n In fact, that is exactly what this court has not held. In Ramirez v.\\nKnoulton, 542 F.3d 124, 127 (5th Cir. 2008), police shot a suspect they believed\\nto be suicidal as he stood in profile to them, with a handgun in his right hand,\\nand brought his hands together in front of his waist.” He “never raised his\\nweapon nor aimed it at the officers.” Id. at 129. The court held that based on\\nthe officers’ reasonable perception, no Fourth Amendment violation occurred,\\nbecause the Constitution “does not require police officers to wait until a suspect\\nshoots to confirm that a serious threat of harm exists.” Id. at 130. See also\\nColston, 130 F.3d at 100; Ontiveros, 564 F.3d at 385 (holding no constitutional\\nviolation where officer thought suspect was reaching into his boot for a weapon\\nduring confrontation in a mobile home). As the Supreme Court put it in\\nMullenix, “the mere fact that courts have approved deadly force in more\\nextreme circumstances says little, if anything, about whether such force was\\nreasonable in the circumstances here.” 136 S. Ct. at 312.\\n The majority describe only one Fifth Circuit police shooting case, out of\\ndozens this court has decided, as an “obvious case.” Baker v. Putnal, 75 F.3d\\n190 (5th Cir. 1996). Whether that characterization applies to the claimed\\nFourth Amendment violation in Baker, to qualified immunity analysis, or\\nsimply to this court’s decision to remand for trial is unclear in the majority\\nopinion. Baker, however, says nothing about the merits of the case or about\\nclearly established law, holding instead that “[t]here are simply too many\\nfactual issues to permit the Bakers’ § 1983 claims to be disposed of on summary\\n\\n\\n 43\\n\\n Case: 14-10228 Document: 00515085664 Page: 44 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment.” Baker, 75 F.3d at 198. Hence, like Kisela, Baker cannot support\\nany rule of clearly established law, much less explain what law is “obvious.”\\nSignificantly, in Baker, whether the suspect was holding a gun visible to the\\nofficer was an important hotly contested issue, with eyewitnesses contradicting\\nthe officer’s account of the incident. Baker, 75 F.3d at 198. Cole’s case, in\\ncontrast, does not involve a “chaos on the beach” incident. The undisputed\\nfacts are starkly different here. It is undisputed, at a minimum, that Cole was\\nholding a loaded weapon, his finger in the trigger, as he emerged from the\\nwoods; he was turning toward the officers; and they had five seconds to react.\\nBaker does not show that the officers’ conduct in Cole violated clearly\\nestablished law.\\n To sum up, the majority opinion here repeats every error identified by\\nthe Supreme Court when it granted summary reversal in Mullenix and sent\\nthe instant case back for reconsideration. The majority’s “clearly established”\\nrule has changed, but not its errors. Tennessee v. Garner does not formulate\\n“clearly established law” with the degree of specificity required by the Supreme\\nCourt’s decisions on qualified immunity. The majority’s “no threat” and\\n“obvious case” statements pose the issues here at an excessive level of\\ngenerality. The majority has no Supreme Court case law demonstrating that\\nOfficers Hunter and Cassidy were either plainly incompetent or had to know\\nthat shooting at Cole was unconstitutional under the circumstances before\\nthem and with the knowledge they possessed—he was mentally distraught; he\\nwas armed with his finger in the pistol’s trigger; he was very close to Hunter;\\nhe had been walking in the direction of schools for which extra police protection\\nhad been ordered; and he had ignored other officers’ commands to stop and\\ndrop his weapon. And they had three to five seconds to decide how dangerous\\nhe could be to them. The majority cites not one case from this court denying\\n\\n\\n 44\\n\\n Case: 14-10228 Document: 00515085664 Page: 45 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nqualified immunity under similar circumstances. Mullenix aptly summed it\\nup for our purposes: “qualified immunity protects actions in the hazy border\\nbetween excessive and acceptable force.” 136 S. Ct. at 312 (internal quotation\\nmarks omitted). “[T]he constitutional rule applied by the Fifth Circuit was not\\n‘beyond debate.’” Id.\\n It is not “clearly established” that police officers confronting armed,\\nmentally disturbed suspects in close quarters must invariably stand down\\nuntil they have issued a warning and awaited the suspects’ reaction or are\\nfacing the barrel of a gun. “This was not a belief in possible harm, but a belief\\nin certain harm. The fact that they would later discover this to be a mistaken\\nbelief does not alter the fact that it was objectively reasonable for them to\\nbelieve in the certainty of that risk at that time.” Carnaby v. City of Houston,\\n636 F.3d 183, 188 n.4 (5th Cir. 2011). That is the law in the Fifth Circuit, and\\nthe majority has pointed to no clearly established law otherwise. Shooting at\\nCole may not have been the wisest choice under these pressing circumstances,\\nbut the officers’ decision, even if assailable, was at most negligent. Hunter and\\nCassidy were neither plainly incompetent nor themselves lawbreakers. While\\nwe are confident a jury will vindicate their actions, they deserved qualified\\nimmunity as a matter of law. We dissent.\\n\\n\\n\\n\\n 45\\n\\n Case: 14-10228 Document: 00515085664 Page: 46 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431737/\", \"author_raw\": \"and OLDHAM, Circuit Judges, dissenting\"}, {\"author\": \"JERRY E. SMITH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JERRY E. SMITH, Circuit Judge, dissenting:\\n\\n This is a “red flag” case if ever there was one. The en banc majority\\ncommits grave error, as carefully explained in the dissents by Judge Jones,\\nJudge Willett, Judges Ho and Oldham (jointly), and Judge Duncan. Yet eleven\\njudges join the majority.\\n\\n Abandon hope, all ye who enter Texas, Louisiana, or Mississippi as peace\\nofficers with only a few seconds to react to dangerous confrontations with\\nthreatening and well-armed potential killers. In light of today’s ruling and the\\nraw count of judges, 1 there is little chance that, any time soon, the Fifth Circuit\\nwill confer the qualified-immunity protection that heretofore-settled Supreme\\nCourt and Fifth Circuit caselaw requires.\\n\\n Red flags abound. Judge Duncan cogently details the “rich vein of facts”\\ndescribing this plaintiff’s undisputed actions in the hours leading up to the\\nshooting. 2\\n\\n • Red flag: a 9mm semi-automatic handgun and ammunition.\\n • Red flag: a double-barrel shotgun with shells.\\n • Red flag: a .44 magnum revolver.\\n • Red flag: a .38 revolver.\\n • Red flag: a suspect who had broken into a gun safe and stolen\\n an unknown quantity of weapons and ammunition.\\n • Red flag: a police visit the night before to the suspect’s house\\n because of a disturbance with his parents.\\n\\n\\n\\n\\n 1This en banc court consists of the sixteen active judges, plus two senior judges who\\nwere on the original panel. Of those sixteen active judges, nine join the majority opinion.\\n 2I especially refer the reader to Part I of Judge Duncan’s dissent, which sets forth the\\ncontext and narrative of red-flag facts that easily justify qualified immunity. All three dis-\\nsents persuasively explain the law of qualified immunity that the majority overlooks.\\n\\n 46\\n\\n Case: 14-10228 Document: 00515085664 Page: 47 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n • Red flag: a suspect with a dangerous knife at his parents’\\n house.\\n • Red flag: a suspect who had a wild look in his eye and was\\n smoking K2.\\n • Red flag: a suspect, distraught over breaking up with his girl-\\n friend, moving toward the school where she was a student.\\n • Red flag: a suspect near an elementary school.\\n • Red flag: a suspect with personal issues including drug abuse.\\n • Red flag: a suspect seen running through the woods with at\\n least three weapons.\\n • Red flag: a suspect irate and distraught.\\n • Red flag: a suspect who said he would shoot anyone who came\\n near him.\\n • Red flag: a suspect armed with at least one handgun and pos-\\n sibly three.\\n • Red flag: a suspect who had refused police demands to drop his\\n weapon.\\n • Red flag: a suspect who deposited a cache of weapons and am-\\n munition at a friend’s house after arguing with his parents.\\n • Red flag: a suspect who yelled obscenities at an officer.\\n • Red flag: a suspect who had threatened to kill his girlfriend\\n and himself.\\n • Red flag: a suspect whom the district court described as\\n troubled.\\n • Red flag: a suspect described in his complaint as suffering from\\n obsessive compulsive disorder, treated with medications from\\n numerous medical professionals, and having poor judgment and\\n impaired impulse control.\\n\\n * * * * *\\n\\n\\n Normally we expect police officers to recognize such red flags and to\\nrespond appropriately. Instead of protecting these officers from obvious dan-\\nger to themselves and the public, however, the en banc majority orders them\\n\\n 47\\n\\n Case: 14-10228 Document: 00515085664 Page: 48 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nto stand down. What is the hapless officer to do in the face of today’s decision?\\nWhat indeed is the “clearly established law” that the majority now announces?\\nThe judges in the majority do not say.\\n\\n The law of qualified immunity was poignantly summarized in 2019 by a\\ndissenting judge who is now in the majority. Today’s en banc ruling turns\\nthose words to dust. 3\\n\\n I respectfully dissent.\\n\\n\\n\\n\\n 3 Winzer v. Kaufman Cty., 916 F.3d 464, 482 (5th Cir. 2019) (Clement, J., dissenting),\\npetition for rehearing en banc pending:\\n The implications of the majority’s mistakes cannot be minimized.\\n The majority decides that qualified immunity can be endangered by an\\n affidavit filed at summary judgment that creates a fact issue nowhere else\\n supported by record evidence.\\n Worse still, it seriously undermines officers’ ability to trust their\\n judgment during those split seconds when they must decide whether to use\\n lethal force. Qualified immunity is designed to respect that judgment,\\n requiring us to second-guess only when it clearly violates the law. The\\n standard acknowledges that we judges—mercifully—never face that split\\n second. Indeed, we never have to decide anything without deliberation—let\\n alone whether we must end one person’s life to preserve our own or the lives of\\n those around us.\\n The qualified immunity standard stops this privilege from blinding\\n our judgment, preventing us from pretending we can place ourselves in the\\n officers’ position based on a cold appellate record. It prevents us from\\n hubristically declaring what an officer should have done—as if we can expect\\n calm calculation in the midst of chaos.\\n The majority opinion, written from the comfort of courthouse\\n chambers, ignores that deference. Instead, it warns officers that they cannot\\n trust what they see; they cannot trust what their fellow officers observe; they\\n cannot trust themselves when posed with a credible threat. It instructs them,\\n in that pivotal split second, to wait. But when a split second is all you have,\\n waiting itself is a decision—one that may bring disastrous consequences.\\n\\n 48\\n\\n Case: 14-10228 Document: 00515085664 Page: 49 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431737/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge, dissenting\"}, {\"author\": \"DON R. WILLETT, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"DON R. WILLETT, Circuit Judge, dissenting:\\n\\n I repeat what I said last month: The entrenched, judge-invented\\nqualified immunity regime ought not be immune from thoughtful reappraisal. 1\\n Qualified immunity strikes an uneasy, cost–benefit balance between two\\ncompeting deterrence concerns: “the need to hold public officials accountable\\nwhen they exercise power irresponsibly and the need to shield officials from\\nharassment, distraction, and liability when they perform their duties\\nreasonably.” 2 By insulating incaution, the doctrine formalizes a rights–\\nremedies gap through which untold constitutional violations slip unchecked.\\nThe real-world functioning of modern immunity practice—essentially “heads\\ngovernment wins, tails plaintiff loses”—leaves many victims violated but not\\nvindicated. More to the point, the “clearly established law” prong, which is\\noutcome-determinative in most cases, makes qualified immunity sometimes\\nseem like unqualified impunity: “letting public officials duck consequences for\\nbad behavior—no matter how palpably unreasonable—as long as they were the\\nfirst to behave badly.” 3\\n That said, as a middle-management circuit judge, I take direction from\\nthe Supreme Court. And the Court’s direction on qualified immunity is\\nincreasingly unsubtle. We must respect the Court’s exacting instructions—\\neven as it is proper, in my judgment, to respectfully voice unease with them. 4\\n\\n\\n\\n\\n 1 Zadeh v. Robinson, 928 F.3d 457, 474 (5th Cir. 2019) (Willett, J., concurring in part,\\ndissenting in part).\\n 2 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (flagging these “two important\\n\\ninterests”).\\n 3 Zadeh, 928 F.3d at 479.\\n 4 See, e.g., State Oil Co. v. Khan, 522 U.S. 3 (1997) (overruling prior precedent whose\\n\\nunsoundness had been “aptly described” by the court of appeals).\\n\\n\\n 49\\n\\n Case: 14-10228 Document: 00515085664 Page: 50 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n I\\n Qualified immunity protects “all but the plainly incompetent or those\\nwho knowingly violate the law.” 5 While this bar is not insurmountable, it is\\nsky-high. And it is raised higher when courts leapfrog prong one (deciding\\nwhether the challenged behavior violates the Constitution) to reach simpler\\nprong two: no factually analogous precedent. Merely proving unconstitutional\\nmisconduct isn’t enough. A plaintiff must cite functionally identical authority\\nthat puts the unlawfulness “beyond debate” to “every” reasonable officer. 6 Last\\nmonth, for example, the Eleventh Circuit, noting no “materially similar case”\\n(thus no “clearly established law”), granted immunity to a police officer who\\nfired at a family’s dog but instead shot a 10-year-old child lying face-down 18\\ninches from the officer. 7 Not only that, the court “expressly [took] no position”\\nas to “whether a constitutional violation occurred in the first place.” 8\\nTranslation: If the same officer tomorrow shoots the same child while aiming\\nat the same dog, he’d receive the same immunity. Ad infinitum.\\n The Supreme Court demands precedential specificity. But it’s all a bit\\nrecursive. There’s no earlier similar case declaring a constitutional violation\\nbecause no earlier plaintiff could find an earlier similar case declaring a\\nconstitutional violation. “Section 1983 meets Catch-22. Plaintiffs must produce\\nprecedent even as fewer courts are producing precedent. Important\\nconstitutional questions go unanswered precisely because no one’s answered\\n\\n\\n\\n\\n 5 District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs,\\n475 U.S. 335, 341 (1986)).\\n 6 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see also, e.g., Kisela v. Hughes, 138 S.\\n\\nCt. 1148, 1153 (2018) (per curiam); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).\\n 7 Corbitt v. Vickers, 929 F.3d 1304, 1307–08 (11th Cir. 2019).\\n 8 Id. at 1323.\\n\\n\\n\\n\\n 50\\n\\n Case: 14-10228 Document: 00515085664 Page: 51 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthem before. Courts then rely on that judicial silence to conclude there’s no\\nequivalent case on the books. No precedent = no clearly established law = no\\nliability. An Escherian Stairwell.” 9\\n II\\n In recent years, individual Justices have raised concerns with the Court’s\\nimmunity caselaw. 10 Even so, the doctrine enjoys resounding, even hardening\\nfavor at the Court. Just three months ago, in a case involving the warrantless\\nstrip search of a four-year-old preschooler, a strange-bedfellows array of\\nscholars and advocacy groups—perhaps the most ideologically diverse amici\\never assembled—implored the Court to push reset. 11 To no avail. This much is\\ncertain: Qualified immunity, whatever its success at achieving its intended\\npolicy goals, thwarts the righting of many constitutional wrongs.\\n Perhaps the growing left–right consensus urging reform will one day win\\nout. There are several “mend it, don’t end it” options. The Court could revisit\\nPearson 12 and nudge courts to address the threshold constitutional merits\\nrather than leave the law undeveloped. 13 Even if a particular plaintiff cannot\\n\\n\\n\\n\\n 9 Zadeh, 928 F.3d at 479–80 (Willett, J., concurring in part, dissenting in part).\\n 10 Four sitting Justices “have authored or joined opinions expressing sympathy” with\\nassorted critiques of qualified immunity. Joanna C. Schwartz, The Case Against Qualified\\nImmunity, 93 NOTRE DAME L. REV. 1797, 1800 (2018) (including Justices Thomas, Ginsburg,\\nBreyer, and Sotomayor, plus recently retired Justice Kennedy); see, e.g., Ziglar v. Abbasi, 137\\nS. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and concurring in the judgment) (“In\\nan appropriate case, we should reconsider our qualified immunity jurisprudence.”); see also\\nKisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (per curiam).\\n 11 Doe v. Woodard, 912 F.3d 1278 (10th Cir. 2019), cert. denied, No. 18-1173, 2019 WL\\n\\n1116409, at *1 (May 20, 2019). As for congressional reform, Congress’s refusal to revisit §\\n1983 suggests Article I acquiescence.\\n 12 555 U.S. at 236.\\n 13 As observers have cautioned, unfettered Pearson discretion contributes to\\n\\n“constitutional stagnation” by impeding the development of precedent. Aaron L. Nielson &\\nChristopher J. Walker, The New Qualified Immunity, 89 S. CAL. L. REV. 1, 23–24 (2015).\\n\\n\\n 51\\n\\n Case: 14-10228 Document: 00515085664 Page: 52 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nbenefit (due to the “clearly established law” prong), this would provide moving-\\nforward guidance as to what the law prescribes and proscribes. Short of that,\\nthe Court could require lower courts to explain why they are side-stepping the\\nconstitutional merits question. 14 Or the Court could confront the widespread\\ninter-circuit confusion on what constitutes “clearly established law.” 15 One\\nconcrete proposal: clarifying the degree of factual similarity required in cases\\ninvolving split-second decisions versus cases involving less-exigent situations.\\nThe Court could also, short of undoing Harlow and reinstating the bad-faith\\nprong, permit plaintiffs to overcome immunity by presenting objective evidence\\nof an official’s bad faith. 16 Not subjective evidence of bad faith, which Harlow,\\nworried about “peculiarly disruptive” and “broad-ranging discovery,” forbids. 17\\nAnd not unadorned allegations of bad faith. But objective evidence that the\\nofficial actually realized that he was violating the Constitution.\\n Prudent refinements abound. But until then, as Judge Jones explains in\\ntoday’s principal dissent, the Supreme Court’s unflinching, increasingly\\nemphatic application of “clearly established law” compels dismissal.\\n III\\n I remain convinced that contemporary immunity jurisprudence merits\\n“a refined procedural approach that more smartly—and fairly—serves its\\n\\n\\n\\n\\n 14 Id. at 7.\\n 15 See, e.g., RICHARD FALLON, JR., ET AL., HART AND WECHSLER’S THE FEDERAL\\nCOURTS AND THE FEDERAL SYSTEM 1047–50 (7th ed. 2015) (noting the difficulties of applying\\nthe clearly-established-law test); Karen M. Blum, Section 1983 Litigation: The Maze, the\\nMud, and the Madness, 23 WM. & MARY BILL RTS. J. 913, 925 n.68 (2015) (“[W]hether a right\\nis found to be ‘clearly established’ is very much a function of which circuit (and I would add,\\nwhich judge) is asking the question, and how that question is framed.”).\\n 16 Harlow v. Fitzgerald prevents plaintiffs from relying on subjective evidence of bad\\n\\nfaith. 457 U.S. 800, 815–16 (1982).\\n 17 Id. at 817.\\n\\n\\n\\n\\n 52\\n\\n Case: 14-10228 Document: 00515085664 Page: 53 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nintended objectives.” 18 Yet I also remain convinced that a majority of the\\nSupreme Court disagrees. My misgivings, I believe, are well advised. But we\\nwould be ill advised to treat the reform of immunity doctrine as something for\\nthis court rather than that Court. 19\\n For these reasons, I respectfully dissent.\\n\\n\\n\\n\\n 18 Zadeh, 928 F.3d at 481 (Willett, J., concurring in part, dissenting in part).\\n 19 As for the sidelong critique of me in the dissenting opinion of Judges Ho and\\nOldham, it is, respectfully, a pyromaniac in a field of straw men. I have not raised originalist\\nconcerns with qualified immunity. My concerns, repeated today, are doctrinal, procedural,\\nand pragmatic in nature. Nor has my unease with modern immunity practice led me to wage\\n“war with the Supreme Court’s qualified-immunity jurisprudence.” I am a fellow dissenter\\ntoday, notwithstanding my unease, precisely because I believe the Court’s precedent compels\\nit. In short, I have not urged that qualified immunity be repealed. I have urged that it be\\nrethought. Justice Thomas—no “halfway originalist”—has done the same. Ziglar, 137 S. Ct.\\nat 1872 (Thomas, J., concurring in part and concurring in the judgment) (“In an appropriate\\ncase, we should reconsider our qualified immunity jurisprudence.”).\\n\\n 53\\n\\n Case: 14-10228 Document: 00515085664 Page: 54 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nJAMES C. HO and ANDREW S. OLDHAM, Circuit Judges, joined by JERRY\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431737/\", \"author_raw\": \"DON R. WILLETT, Circuit Judge, dissenting\"}, {\"author\": \"E. SMITH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"E. SMITH, Circuit Judge, dissenting:\\n\\n Apparently SUMREVs mean nothing.\\n In Luna v. Mullenix, 773 F.3d 712 (5th Cir. 2014), we sent a state trooper\\nto a jury “in defiance” of “the concept and precedents of qualified immunity.”\\n777 F.3d 221, 222 (5th Cir. 2014) (Jolly, J., dissenting from denial of rehearing\\nen banc). The Supreme Court summarily reversed us. Mullenix v. Luna, 136\\nS. Ct. 305 (2015) (per curiam). Then they GVR’d us in this case and ordered\\nus to reconsider our obvious error in light of Mullenix.\\n The en banc majority instead doubles down. That is wrong for all the\\nreasons Judge Jones gives in her powerful dissent, which we join in full. We\\nwrite to emphasize the en banc majority’s unmistakable message: Four years\\nafter Mullenix, nothing has changed in our circuit.\\n I.\\n The Supreme Court has not hesitated to redress similar intransigence\\nfrom our sister circuits—often through the “extraordinary remedy of a\\nsummary reversal.” Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor,\\nJ., dissenting) (quotation omitted). See, e.g., City of Escondido v. Emmons, 139\\nS. Ct. 500 (2019) (per curiam) (summarily reversing the Ninth Circuit); Kisela,\\n138 S. Ct. 1148 (per curiam) (same); District of Columbia v. Wesby, 138 S. Ct.\\n577 (2018) (reversing the D.C. Circuit); White v. Pauly, 137 S. Ct. 548 (2017)\\n(per curiam) (summarily reversing the Tenth Circuit); City and County of San\\nFrancisco v. Sheehan, 135 S. Ct. 1765 (2015) (reversing the Ninth Circuit);\\nCarroll v. Carman, 574 U.S. 13 (2014) (per curiam) (summarily reversing the\\nThird Circuit); Wood v. Moss, 572 U.S. 744 (2014) (reversing the Ninth Circuit);\\nPlumhoff v. Rickard, 572 U.S. 765 (2014) (reversing the Sixth Circuit); Stanton\\nv. Sims, 571 U.S. 3 (2013) (per curiam) (summarily reversing the Ninth\\nCircuit); Reichle v. Howards, 566 U.S. 658 (2012) (reversing the Tenth Circuit);\\n\\n 54\\n\\n Case: 14-10228 Document: 00515085664 Page: 55 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nRyburn v. Huff, 565 U.S. 469 (2012) (per curiam) (summarily reversing the\\nNinth Circuit); Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (same); Brosseau v.\\nHaugen, 543 U.S. 194 (2004) (per curiam) (same).\\n In each of these cases, the Supreme Court reminded lower courts that\\nqualified immunity requires us not only to identify a clearly established rule\\nof law, but to do so with great specificity. Everyone agrees, of course, that Ryan\\nCole has a constitutional right not to be seized unreasonably. But “that is not\\nenough” to subject a police officer to the burdens of our civil litigation system.\\nSaucier v. Katz, 533 U.S. 194, 202 (2001). The Supreme Court has “repeatedly\\ntold courts . . . not to define clearly established law at [that] high level of\\ngenerality.” al-Kidd, 563 U.S. at 742. Rather, “[t]he dispositive question is\\nwhether the violative nature of particular conduct is clearly established.”\\nMullenix, 136 S. Ct. at 308 (citation omitted).\\n Only by identifying a specific and clearly established rule of law do we\\nensure that the officer had “fair notice”—“in light of the specific context of the\\ncase, not as a broad general proposition”—that his or her particular conduct\\nwas unlawful. Brosseau, 543 U.S. at 198 (citation omitted). See also, e.g.,\\nSheehan, 135 S. Ct. at 1776 (“Qualified immunity is no immunity at all if\\n‘clearly established’ law can simply be defined as the right to be free from\\nunreasonable searches and seizures.”); Wilson v. Layne, 526 U.S. 603, 615\\n(1999) (same); Anderson v. Creighton, 483 U.S. 635, 640 (1987) (same).\\n So where is our clearly established law at issue here? Unbelievably, the\\nen banc majority says we don’t need any. That’s so, they say, because “[t]his is\\nan obvious case.” Ante, at 16. That’s obviously wrong for three reasons.\\n First, the Supreme Court to date has never identified an “obvious” case\\nin the excessive force context. And the majority thinks this is the first? A case\\nwhere a mentally disturbed teenager—who has a loaded gun in his hand with\\n\\n\\n 55\\n\\n Case: 14-10228 Document: 00515085664 Page: 56 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhis finger on the trigger; who has repeatedly refused to be disarmed; who has\\nthreatened to kill anyone who tries to disarm him; who poses such a deadly\\nthreat that police have been deployed to protect innocent students and teachers\\nat his nearby high school—turns toward the officers just ten to twenty feet\\naway, giving them only seconds to decide what to do in response. Really?\\n Second, the Supreme Court has granted qualified immunity in much\\ntougher cases than this one. In Plumhoff, for example, officers fired 15 shots\\nand killed two unarmed men who fled a traffic stop. In Brosseau, an officer\\nshot an unarmed man who refused to open his truck window. In Kisela, officers\\nshot a woman who was hacking a tree with a kitchen knife. In Sheehan,\\nofficers shot an old woman holding a kitchen knife in an assisted-living facility.\\nIn all of these cases, the Court held the officers were entitled to qualified\\nimmunity.\\n Third, this is Mullenix all over again. There our court relied on clearly\\nestablished law as articulated in Tennessee v. Garner, 471 U.S. 1 (1985).\\nGarner involved an unarmed man who fled from police after stealing $10. An\\nofficer fatally shot Garner in the back of the head as he attempted to climb a\\nfence. Our court then extended Garner to Mullenix’s case—which involved a\\nman who led police on a high-speed car chase after violating his probation. A\\nstate trooper attempted to end the chase by shooting the speeding car’s engine\\nblock—but he missed the engine, hit the driver in the face, and killed him. See\\nLuna, 773 F.3d at 719–20 (discussing Garner). The Supreme Court summarily\\nreversed us because—as should be painfully obvious from the Court’s serial\\nreversals in this area—that’s not how qualified immunity works. See Mullenix,\\n136 S. Ct. at 308–09 (holding our court erred in our extrapolation of Garner to\\n\\n\\n\\n\\n 56\\n\\n Case: 14-10228 Document: 00515085664 Page: 57 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nnew facts). And they GVR’d us in this very case to fix our mistakes in light of\\nMullenix. The Supreme Court’s message could not be clearer. 1\\n Still, somehow, today’s majority does not get it. Here, as in Mullenix, the\\nmajority attempts to rely on Garner to establish the governing rule of law.\\nFrom Garner, the majority somehow divines a rule that an officer cannot shoot\\na mentally disturbed teenager holding a gun near his school. This is\\ndemonstrably erroneous. In fact, one thing that unites the Supreme Court’s\\nrecent reversals in cases involving qualified immunity and excessive force is\\nthe attempt by lower courts to extrapolate Garner to new facts. See Mullenix,\\n136 S. Ct. at 308–09; Scott v. Harris, 550 U.S. 372, 381–82 (2007) (same); Allen\\nv. City of West Memphis, 509 F. App’x 388, 392 (6th Cir. 2012) (extrapolating\\nGarner), rev’d by Plumhoff, supra.\\n Moreover, there are additional parallels between Mullenix and this case.\\nConsider the supposed requirement that an officer take some sort of non-lethal\\nmeasure before using lethal force. In Mullenix, our court used the power of 20-\\n20 hindsight to say that a reasonable officer should have used spike strips to\\n\\n\\n\\n\\n 1 The Supreme Court issues GVRs when, as here, legal error infects the judgment\\nbelow. See, e.g., Hicks v. United States, 137 S. Ct. 2000, 2000–01 (2017) (Gorsuch, J.,\\nconcurring) (defending GVR because “[a] plain legal error infects this judgment” and because\\npetitioner “enjoys a reasonable probability of success” in getting judgment reversed on the\\nmerits); id. at 2002 (Roberts, C.J., dissenting) (“[W]ithout a determination from this Court\\nthat the judgment below was wrong or at least a concession from the Government to that\\neffect, we should not, in my view, vacate the Fifth Circuit’s judgment.”). As the cert petition\\nexplained, our panel denied qualified immunity “based on the same rationale” on “which this\\nCourt reversed in Mullenix.” Pet. at i, 2016 WL 4987324. We think it obvious the Supreme\\nCourt GVR’d because it agreed. And tellingly, the majority does not offer an alternative\\ntheory to explain the GVR. We ignore the Court’s message at our peril. See, e.g., Smith v.\\nMitchell, 437 F.3d 884 (9th Cir. 2006) (granting habeas relief to a state prisoner because the\\nevidence was insufficient to prove she shook her grandbaby to death); Patrick v. Smith, 550\\nU.S. 915 (2007) (GVR’ing i/l/o Carey v. Musladin, 549 U.S. 70 (2006)); Smith v. Patrick, 519\\nF.3d 900 (9th Cir. 2008) (again granting habeas relief); Patrick v. Smith, 558 U.S. 1143 (2010)\\n(GVR’ing i/l/o McDaniel v. Brown, 558 U.S. 120 (2010)); Smith v. Mitchell, 624 F.3d 1235 (9th\\nCir. 2010) (again granting habeas relief); Cavazos v. Smith, 565 U.S. 1 (2011) (SUMREV’ing).\\n\\n 57\\n\\n Case: 14-10228 Document: 00515085664 Page: 58 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nstop the chase. See 773 F.3d at 720–21. The Supreme Court emphatically\\nrebuked us. See 136 S. Ct. at 310. They told us that an officer does not have\\nto expose himself or other officers to harm when the suspect has already\\nrefused to be disarmed. That meant Trooper Mullenix did not have to wait to\\nsee if the fleeing felon would shoot or run over the officer manning the spike\\nstrips. See id. at 310–11.\\n So too here. In this case, the majority complains that the officers did not\\nprovide sufficient warning. But there was no clearly established law requiring\\nOfficers Cassidy and Hunter to announce themselves—while caught in an open\\nand defenseless position—and hope not to get shot. That is particularly true\\nhere because officers previously ordered Cole to put down his gun, he refused,\\nand he threatened to kill anyone who attempted to disarm him.\\n And in Mullenix, as here, we accused the police officers of being cowboys.\\nEarlier on the day of the shooting, Trooper Mullenix received a negative\\nperformance review for “not being proactive enough as a Trooper”; so in the\\naftermath of the shooting, Mullenix said to his supervisor, “How’s that for\\nproactive?” 773 F.3d at 717; see also 136 S. Ct. at 316 (Sotomayor, J.,\\ndissenting). The panel opinions and en banc majority opinion in this case\\nlikewise seethe with innuendo that Officers Hunter and Cassidy were wannabe\\ncowboys looking for a gunfight. We are in no position to make such accusations.\\nNo member of this court has stared down a fleeing felon on the interstate or\\nconfronted a mentally disturbed teenager who is brandishing a loaded gun\\nnear his school. And the Mullenix Court held that the qualified-immunity\\nstandard gives us no basis for sneering at cops on the beat from the safety of\\nour chambers. See 136 S. Ct. at 310–11 (majority op.) (citing Brief for National\\nAssociation of Police Organizations et al. as Amici Curiae). Yet here we are.\\nAgain.\\n\\n\\n 58\\n\\n Case: 14-10228 Document: 00515085664 Page: 59 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II.\\n The majority cannot dodge responsibility for today’s decision by pointing\\nto the limits of appellate jurisdiction. See ante, at 13–14 (majority op.); ante,\\nat 1 (Elrod, J., concurring). We obviously lack interlocutory appellate\\njurisdiction to review the genuineness of an officer’s fact dispute. See, e.g.,\\nJohnson v. Jones, 515 U.S. 304, 313–14 (1995); Kinney v. Weaver, 367 F.3d 337,\\n346–47 (5th Cir. 2004) (en banc) (applying Johnson v. Jones).\\n But that does nothing to defeat jurisdiction where, as here, the factual\\ndisputes are immaterial. That is why the Supreme Court repeatedly has\\nrejected such no-jurisdiction pleas from those who wish to deny qualified\\nimmunity. See, e.g., Plumhoff, 572 U.S. at 771–73; id. at 773 (noting existence\\nof genuine fact dispute did not defeat appellate jurisdiction in Scott v. Harris).\\n All the fact disputes in the world do nothing to insulate this legal\\nquestion: Is this an “obvious case” under Garner—notwithstanding a\\nmountain of SUMREVs, GVRs, and pointed admonitions from the Supreme\\nCourt? The majority says yes. Ante, at 16. They obviously must have\\njurisdiction to say so. With respect, it makes no sense to say we lack\\njurisdiction to disagree with them.\\n III.\\n What explains our circuit’s war with the Supreme Court’s qualified-\\nimmunity jurisprudence? Two themes appear to be at play.\\n First, the majority suggests we should be less than enthused about\\nSupreme Court precedent in this area, because it conflicts with plaintiffs’ jury\\nrights. To quote the panel: “Qualified immunity is a judicially created doctrine\\ncalculated to protect an officer from trial before a jury of his or her peers. At\\nbottom lies a perception that the jury brings a risk and cost that law-\\nenforcement officers should not face, that judges are preferred for the task—a\\n\\n\\n 59\\n\\n Case: 14-10228 Document: 00515085664 Page: 60 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment made by appellate judges.” Cole v. Carson, 905 F.3d 334, 336 (5th\\nCir. 2018). Or in the words of today’s majority: “The Supreme Court over\\nseveral years has developed protection from civil liability for persons going\\nabout their tasks as government workers” (a rather curious way to describe the\\nmen and women who swear an oath to protect our lives and communities).\\nAnte, at 2. But “the worker’s defense” must yield, in cases like this, “in\\nobeisance to [the] constitutional mandate” of a jury trial. Id.\\n We appreciate the majority’s candor. But inferior court judges may not\\nprefer juries to the Justices.\\n Second, some have criticized the doctrine of qualified immunity as\\nahistorical and contrary to the Founders’ Constitution. Ante at 2 (suggesting\\ndenial of qualified immunity is commanded by “the Founders”); compare\\nWilliam Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45, 49–\\n61 (2018), with Aaron L. Nielson & Christopher J. Walker, A Qualified Defense\\nof Qualified Immunity, 93 NOTRE DAME L. REV. 1853, 1856–63 (2018); see also\\nZadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring\\ndubitante), revised on petition for reh’g en banc, 928 F.3d 457, 473 (5th Cir.\\n2019) (Willett, J., concurring in part and dissenting in part).\\n As originalists, we welcome the discussion. But separate and apart from\\nthe fact that we are bound as a lower court to follow Supreme Court precedent,\\na principled commitment to originalism provides no basis for subjecting these\\nofficers to trial.\\n The originalist debate over qualified immunity may seem fashionable to\\nsome today. But it is in fact an old debate. Over two decades ago, Justices\\nScalia and Thomas noted originalist concerns with qualified immunity. But\\nthey also explained how a principled originalist would re-evaluate established\\n\\n\\n\\n\\n 60\\n\\n Case: 14-10228 Document: 00515085664 Page: 61 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ndoctrines. See Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998) (Scalia, J.,\\njoined by Thomas, J., dissenting).\\n A principled originalist would not cherry pick which rules to revisit based\\non popular whim. A principled originalist would fairly review decisions that\\nfavor plaintiffs as well as police officers. As Justice Scalia explained in a\\ndissent joined by Justice Thomas, a principled originalist would evenhandedly\\nexamine disputed precedents that expand, as well as limit, § 1983 liability:\\n [O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has\\n not purported to be faithful to the common-law immunities that\\n existed when § 1983 was enacted . . . . [But] [t]he § 1983 that the\\n Court created in 1961 bears scant resemblance to what Congress\\n enacted almost a century earlier. I refer, of course, to the holding\\n of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871\\n statute covering constitutional violations committed “under color\\n of any statute, ordinance, regulation, custom, or usage of any\\n State,” Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into\\n a statute covering constitutional violations committed without the\\n authority of any statute, ordinance, regulation, custom, or usage\\n of any State, and indeed even constitutional violations committed\\n in stark violation of state civil or criminal law.\\n\\n\\nId. at 611.\\n Justices Scalia and Thomas ultimately concluded that it is better to leave\\nthings alone than to reconfigure established law in a one-sided manner. If\\nwe’re not willing to re-evaluate all § 1983 precedents in a balanced and\\nprincipled way, then it “is perhaps just as well” that “[w]e find ourselves\\nengaged . . . in the essentially legislative activity of crafting a sensible scheme\\nof qualified immunities for the statute we have invented—rather than\\napplying the common law embodied in the statute that Congress wrote.” Id.\\nat 611–12.\\n Translation: If we’re not going to do it right, then perhaps we shouldn’t\\ndo it at all.\\n\\n 61\\n\\n Case: 14-10228 Document: 00515085664 Page: 62 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Subjecting these officers to trial on originalist grounds is precisely the\\nunprincipled practice of originalism that Justices Scalia and Thomas railed\\nagainst. And not just for the procedural reasons they identified in Crawford-\\nEl. What about the original understanding of the Fourth Amendment, which\\nthe plaintiffs here invoke as their purported substantive theory of liability in\\nthis case? Does the majority seriously believe that it is an “unreasonable\\nseizure,” as those words were originally understood at the Founding, for a police\\nofficer to stop an armed and mentally unstable teenager from shooting\\ninnocent officers, students, and teachers?\\n And make no mistake: Principled originalism is not just a matter of\\nintellectual precision and purity. There are profound practical consequences\\nhere as well, given the important and delicate balance that qualified immunity\\nis supposed to strike. As the Supreme Court has explained, qualified immunity\\nensures that liability reaches only “the plainly incompetent or those who\\nknowingly violate the law.” Mullenix, 136 S. Ct. at 308 (quotation omitted).\\nAnd absent plain incompetence or intentional violations, qualified immunity\\nmust attach, because the “social costs” of any other rule are too high:\\n [I]t cannot be disputed seriously that claims frequently run\\n against the innocent as well as the guilty—at a cost not only to the\\n defendant officials, but to society as a whole. These social costs\\n include the expenses of litigation, the diversion of official energy\\n from pressing public issues, and the deterrence of able citizens\\n from acceptance of public office. Finally, there is the danger that\\n fear of being sued will dampen the ardor of all but the most\\n resolute, or the most irresponsible public officials, in the\\n unflinching discharge of their duties.\\n\\nHarlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (alterations and quotations\\nomitted); see also, e.g., Sheehan, 135 S. Ct. at 1774 n.3 (noting “the importance\\nof qualified immunity to society as a whole”).\\n\\n\\n\\n 62\\n\\n Case: 14-10228 Document: 00515085664 Page: 63 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n For those who have expressed concerns about a “one-sided approach to\\nqualified immunity,” Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting); see\\nalso Zadeh, 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting\\nKisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)); 928 F.3d at 480 & n.61\\n(Willett, J., concurring in part and dissenting in part) (same), look no further\\nthan the majority opinion. The majority undoes the careful balance of interests\\nembodied in our doctrine of qualified immunity, stripping the officers’ defenses\\nwithout regard to the attendant social costs. 2\\n Now that is a one-sided approach to qualified immunity as a practical\\nmatter. And as Justices Scalia and Thomas have observed, it’s also a one-sided\\napproach to qualified immunity as an originalist matter: It abandons the\\ndefense without also reconsidering the source and scope of officers’ liability in\\nthe first place. See Crawford-El, 523 U.S. at 611–12 (Scalia, J., joined by\\nThomas, J., dissenting). To quote Justice Alito: “We will not engage in this\\nhalfway originalism.” Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,\\nCouncil 31, 138 S. Ct. 2448, 2470 (2018). See also id. (criticizing litigants for\\n“apply[ing] the Constitution’s supposed original meaning only when it suits\\nthem”); Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J.,\\n\\n\\n\\n\\n 2Those social costs are particularly stark today given widespread news of low officer\\nmorale and shortages in officer recruitment. See, e.g., Ashley Southall, When Officers Are\\nBeing Doused, Has Police Restraint Gone Too Far?, N.Y. TIMES, July 25, 2019, at A22; Martin\\nKaste & Lori Mack, Shortage of Officers Fuels Police Recruiting Crisis, NPR (Dec. 11, 2018,\\n5:05 AM), https://n.pr/2Qrbrnq; Jeremy Gorner, Morale, Policing Suffering in Hostile\\nClimate, Cops Say; ‘It’s Almost Like We’re the Bad Guys,’ Veteran City Officer Says, CHI. TRIB.,\\nNov. 27, 2016, at 1.\\n\\n\\n 63\\n\\n Case: 14-10228 Document: 00515085664 Page: 64 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nconcurring in the judgment) (“[I]t would be freakish to single out the provision\\nat issue here for special treatment.”). 3\\n ***\\n Our circuit, like too many others, has been summarily reversed for\\nignoring the Supreme Court’s repeated admonitions regarding qualified\\nimmunity. There’s no excuse for ignoring the Supreme Court again today. And\\ncertainly none based on a principled commitment to originalism.\\n Originalism for plaintiffs, but not for police officers, is not principled\\njudging. Originalism for me, but not for thee, is not originalism at all. We\\nrespectfully dissent.\\n\\n\\n\\n\\n 3 In a footnote, Judge Willett notes that his criticism of the Supreme Court’s qualified\\nimmunity precedents is not based on originalist grounds. Ante, at 4 n.19. To our minds, that\\nmakes his criticism harder, not easier, to defend. If his concerns are based on practical and\\nnot originalist considerations, then he should address them to the Legislature, rather than\\nattack the Supreme Court as “one-sided.” Zadeh, 902 F.3d at 499 & n.10 (Willett, J.,\\nconcurring dubitante) (quoting Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)). He\\nalso invokes Justice Thomas’s opinion in Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017). But\\nthat opinion cites Justice Scalia’s opinion in Crawford-El, which (as we explained above)\\nwarns qualified immunity skeptics not to engage in halfway originalism.\\n\\n 64\\n\\n Case: 14-10228 Document: 00515085664 Page: 65 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nSTUART KYLE DUNCAN, Circuit Judge, joined by SMITH, OWEN, HO, and\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431737/\", \"author_raw\": \"E. SMITH, Circuit Judge, dissenting\"}, {\"author\": \"OLDHAM, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"OLDHAM, Circuit Judges, dissenting:\\n\\n The majority opinion overlooks or omits undisputed material facts\\nshowing that any reasonable officer would have viewed Ryan Cole as a severe\\nthreat. Before the shooting, the defendant officers: (1) were tracking a\\ndistraught suspect wandering through the woods armed with a loaded 9mm\\nsemi-automatic handgun; (2) who had earlier that morning off-loaded a cache\\nof weapons and ammunition at a friend’s house; (3) who had already refused to\\ngive up his pistol when confronted by the police; and (4) who had threatened to\\n“shoot anyone who came near him.” Cole did not dispute those facts and,\\nindeed, convinced the district court they were irrelevant. Joining Judge Jones’\\ndissent in full, I respectfully dissent on the additional grounds provided by\\nthese pre-encounter facts.\\n No one doubts some of the events on October 25, 2010—when the officers\\nviolently encountered Cole in the woods near Garland, Texas—are disputed.\\nThe question is whether those disputes are material. See, e.g., Bazan ex rel.\\nBazan v. Hidalgo Cty., 246 F.3d 481, 483 (5th Cir. 2001) (“threshold issue” on\\nqualified immunity appeal “is whether the facts the district judge concluded\\nare genuinely disputed are also material”). Judge Jones’ dissent compellingly\\nshows they are not: Resolving all disputes in Cole’s favor, the undisputed facts\\nstill show the officers violated no clearly established law. Jones Dissent at 2–\\n3, 11–22. The majority thus errs by concluding that “competing factual\\nnarratives” bar it from deciding qualified immunity. Maj. at 3.\\n I write separately to emphasize what led up to the shooting, and also to\\nexplain why those undisputed events provide further reasons to reverse. The\\nmajority and Judge Jones focus on the shooting itself, as did the district court.\\nBut the prelude to the shooting gives unavoidable context for evaluating the\\n\\n\\n\\n 65\\n\\n Case: 14-10228 Document: 00515085664 Page: 66 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nofficers’ actions. 1 Surprisingly, the district court did not even analyze those\\nstage-setting facts, which it mistakenly deemed irrelevant. See Cole v. Hunter,\\nNo. 3:13-CV-02719-O, 2014 WL 266501, at *13 n.5 (N.D. Tex. Jan. 24, 2014);\\nCole v. Hunter, 68 F. Supp. 3d 628, 642–43 (N.D. Tex. 2014). So, to assess their\\nimpact, we must “undertake a cumbersome review of the record.” Johnson v.\\nJones, 515 U.S. 304, 319 (1995). That extra work is sometimes imperative, as\\nhere, “to ensure that the defendant’s right to an immediate appeal on the issue\\nof materiality is not defeated solely on account of the district court’s failure to\\narticulate its reasons for denying summary judgment.” Colston v. Barnhart,\\n146 F.3d 282, 285 (5th Cir. 1998), denying reh’g in 130 F.3d 96 (5th Cir. 1997).\\n This detailed record review (see Part I) compels two conclusions (see Part\\nII). First, the district court erred by excluding the undisputed events before the\\nshooting. That error—based on a misreading of our precedent—truncated the\\nqualified immunity analysis. That alone requires reversing the summary\\njudgment denial. Second, in light of those pre-encounter facts, the majority’s\\ninsistence that this is an “obvious case” collapses. Maj. at 16. Given what\\nconfronted the officers, the majority cannot say what they did was “obviously”\\nunlawful. The only thing obvious is that no case told the officers, clearly or\\notherwise, how to respond when they met Cole that morning, emerging from\\nthe woods with his finger on the trigger of a loaded gun.\\n By denying qualified immunity and making the officers run the gauntlet\\nof trial, the majority sets a precedent that “seriously undermines officers’\\nability to trust their judgment during those split seconds when they must\\n\\n\\n\\n\\n 1See, e.g., Kingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015) (courts “must judge\\nthe reasonableness of the force used from the perspective and with the knowledge of the\\ndefendant officer”); Tennessee v. Garner, 471 U.S. 1, 9 (1985) (whether a “particular” seizure\\nwas justified depends on “the totality of the circumstances”).\\n\\n 66\\n\\n Case: 14-10228 Document: 00515085664 Page: 67 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ndecide whether to use lethal force.” Winzer v. Kaufman Cty., 916 F.3d 464, 482\\n(5th Cir. 2019) (Clement, J., dissenting).\\n I.\\n The majority begins “around 10:30 a.m.,” less than an hour before the\\nshooting. Maj. at 4. But events began to unfold much earlier. 2 Around 2 a.m.\\nthat morning, Cole knocked on the door of his friend, Eric Reed Jr., to show\\nhim “a 44 magnum revolver.” Awakened by the knocking, Eric Jr.’s father (Eric\\nSr.) left his room, saw Cole with the gun, and told him to leave. Eric Jr.\\nconvinced Cole to leave the revolver because “he [did not] need to be carrying\\na weapon around.”\\n Around 8 a.m., Eric Jr. gave his father Cole’s gun. Eric Sr., a retired\\nSachse police officer, then notified Officer Vernon Doggett, who came to the\\nReeds’. Eric Jr. told his father and Doggett that “[Cole] told him there were\\nmore guns on the side of the house.” There, they found “a double barrel shot\\ngun with some shot gun shells and what appeared to be a plastic bag with 9mm\\nbullets,” which Doggett secured. Eric Jr. also explained Cole “had broken up\\nwith his girlfriend and was going to kill himself and his girlfriend.”\\n Doggett was a resource officer for Sachse High School, where Cole and\\nhis girlfriend attended. He contacted Sergeant Garry Jordan, told him about\\nthe guns, and asked to meet at the school. Doggett reported that Cole “may be\\nat school with a 9mm handgun.” Another officer checked whether Cole was in\\nclass, and Jordan searched the parking areas for Cole.\\n\\n\\n\\n\\n 2 All of these facts come from reports and transcriptions of radio transmissions made\\nwithin a day or two of the incident. None come from affidavits submitted by the officers years\\nlater. And, as explained below, none of these pre-encounter facts was disputed by Cole or\\nanalyzed by the district court.\\n\\n\\n 67\\n\\n Case: 14-10228 Document: 00515085664 Page: 68 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Not finding him, Jordan went to Coles’ and spoke to his parents. He\\nlearned that, the previous evening, officers had responded to a disturbance\\nthere. Officers had found Cole’s father “holding Ryan down” because “he did\\nnot want [Cole] to leave the residence with the pocket knife that he had.” He\\nsaid “his son had a wild look in his eye and . . . had been smoking K2.” While\\nthe officers found there had been no assault, all agreed it was “a good idea for\\nCole to stay the night with a friend.” The Coles had not seen Ryan since then\\nbut reported he had “apparently returned home during the night and had\\nopened the gun safe, removed an unknown amount [sic] of weapons, and reset\\nthe combination.”\\n Meanwhile, Eric Jr. noticed Cole was back. He asked Cole if he was\\narmed and Cole showed him a “38 revolver” and a “9mm semiauto.” He\\nconvinced Cole to give him the revolver, but Cole told him he was not “getting\\nthe 9mm.” Cole also said that the 9mm was loaded and that he did not “wanna\\nuse it on [Eric Jr.]” Cole stated that “he would shoot anyone who came near\\nhim.” Cole left, and Eric Jr. called his father, who called the police.\\n Around 10:49 a.m., Officer Stephen Norris radioed “all available Sachse\\nofficers” to respond to the area of the Reed residence. He reported Cole was\\n“observed running south of the location with 3 weapons, one a loaded 9mm.”\\nHe also reported Cole was “irate and distraught and stated he would shoot\\nanyone who came near him.” Around the same time, Sachse Officer Michael\\nHunter was dispatched to assist Jordan at the Coles’, but on arrival he was\\ntold by Sachse Officer Carl Carson he was not needed. As Hunter was leaving,\\nhe heard Norris’ call advising Cole was “in the area . . . with a gun.” Hunter\\n\\n\\n\\n\\n 68\\n\\n Case: 14-10228 Document: 00515085664 Page: 69 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nstated he “did not know the specifics of the call at this point,” but proceeded to\\nthe Reeds’ residence. In response to Norris’ call, Jordan also left the Coles’.\\n Sachse Officer Martin Cassidy also received Norris’ dispatch and went\\nto the area Norris indicated. He was given Cole’s description and advised that\\nCole was “armed with at least one handgun and possibly three.” Cassidy spoke\\nwith Norris on the phone about “the proximity of Armstrong Elementary\\nSchool to the location where [Cole] was last seen.” Cassidy therefore went to\\ncheck on the school and a nearby shopping center for any signs of Cole.\\n Meanwhile, Hunter arrived at the Reeds’, where he met Jordan and\\nCarson. Hunter overheard Eric Jr. say he had gotten “one gun” from Cole but\\nthat Cole had left “armed with a 9mm handgun.” “Hunter put [Cole’s]\\ndescription out to other officers,” and then he and Carson went to search for\\nCole. After speaking with the officers, Eric Jr. checked for more guns and found\\n“6 firearms around [his] house.”\\n Jordan then observed Officers Elliott and Sneed pass by in a patrol unit.\\nThose officers found Cole nearby. Elliott reported that “Sneed . . . advised\\n[Cole] to show his hands.” Instead, Cole “reached into his waist band and pulled\\na pistol and placed it to his head after about three steps and refused to obey\\nLt. Sneed[’s] commands.” When Jordan arrived, Sneed “drew his duty weapon\\nand yelled at [Cole] to drop the weapon,” but Cole refused. As Cole continued\\neastbound towards Highway 78, Sneed “warned [Cole] that [he] would shoot\\nhim in the back if he tried to get to the highway or walk toward any innocent\\nbystanders.” Cole “would occasionally turn his head and yell obscenities at\\n[Sneed].” Two other officers then parked “directly in front of [Cole’s] path.” To\\navoid them, Cole turned “northbound and began walking the railroad tracks.”\\nJordan was constantly updating dispatch about Cole’s movements. “Suddenly,\\n[Sneed] observed [Cole] cut eastbound and run up a hill and into the brush\\n\\n\\n 69\\n\\n Case: 14-10228 Document: 00515085664 Page: 70 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ntowards Highway 78.” Dispatch reported that Cole was “off tracks coming\\nthrough tree lines towards [Highway] 78.”\\n Hunter, Carson, and Cassidy were monitoring Cole’s movements from\\nthe dispatches. They arrived separately at the part of Highway 78 where Cole\\nwas thought to be. Hunter noted “[Cole] appeared to be walking towards the\\nrailroad track,” and he advised Carson “[they] needed to go out to the highway\\nand intercept [him].” Cassidy advised Carson to get out his taser and follow\\nCassidy. Hunter “parked further south on Highway 78 as [he] figured [Cole]\\nwould be on the railroad track paralleling Highway 78 at about [his] location.”\\nHe guessed correctly. As Hunter “began to look for cover since [he] was out in\\nthe open,” Cole “walked out from the brush approximately 10 to 20 feet from\\n[Hunter].”\\n What followed was the shooting.\\n II.\\n Cole did not dispute these stage-setting events in opposing summary\\njudgment. To the contrary, he argued any “prior events” before the shooting\\nwere “irrelevant.” The district court agreed, excluding from its qualified\\nimmunity analysis the “events” from “earlier that morning,” Cole, 2014 WL\\n266501, at *13 n.5, and focusing solely on what happened “immediately before\\nand during the shooting.” Cole, 68 F. Supp. 3d at 644. That mistake skewed\\nthe district court’s analysis and provides yet another reason why we should\\nreverse.\\n First, the district court erred by excluding everything that happened\\nbefore the officers’ five-second encounter with Cole. That approach artificially\\ntruncates the qualified immunity analysis. In assessing qualified immunity,\\nwe “[c]onsider[ ] the specific situation confronting [officers],” City & Cty. of San\\nFrancisco v. Sheehan, 135 S. Ct. 1765, 1778 (2015), which “must be judged from\\n\\n\\n 70\\n\\n Case: 14-10228 Document: 00515085664 Page: 71 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthe perspective of a reasonable officer on the scene[.]” Graham v. Connor, 490\\nU.S. 386, 396 (1989). A “reasonable officer” does not shape his decisions based\\nonly on the seconds when he confronts an armed suspect; instead, he acts based\\non all relevant circumstances, including the events leading up to the ultimate\\nencounter. See, e.g., Escobar v. Montee, 895 F.3d 387 (5th Cir. 2018) (courts\\nevaluate excessive force claims “from the perspective of a reasonable officer on\\nthe scene, paying ‘careful attention to the facts and circumstances of each\\nparticular case’”) (quoting Graham, 490 U.S. at 396). That is precisely how the\\nSupreme Court has instructed lower courts to assess whether force is\\nexcessive: The seminal case, Tennessee v. Garner, asks whether a seizure was\\njustified, based not only on the immediate seizure, but on “the totality of the\\ncircumstances” facing the officers. 471 U.S. 1, 9 (1985). And qualified immunity\\ncases, both from the Supreme Court and our court, routinely consider the\\nbackground facts that shaped an officer’s confrontation with a suspect in order\\nto evaluate the officer’s ultimate use of force. 3\\n The district court’s sole contrary authority was our statement in\\nRockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011), that the excessive force\\ninquiry “is confined to whether the [officer or another person] was in danger at\\nthe moment of the threat.” But the district court overread Rockwell. We made\\nthat statement in Rockwell to reject the notion that officers’ negligence before\\n\\n\\n\\n\\n 3 See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 306 (2015) (assessing officer’s shooting of\\nsuspect during car chase beginning with events preceding the “18-minute chase”); Plumhoff\\nv. Rickard, 572 U.S. 765, 768–70 (2014) (assessing officer’s shooting of suspects in Memphis,\\nTennessee after lengthy car chase beginning with traffic stop in “West Memphis, Arkansas”);\\nBrosseau v. Haugen, 543 U.S. 194, 195 (2004) (evaluating officer’s shooting of fleeing suspect\\nbeginning with events “[o]n the day before the fracas”); Colston, 130 F.3d at 100 (determining\\nofficer’s failure to warn was not objectively unreasonable “[i]n light of the totality of the\\ncircumstances facing [the officer]”) (citing Garner, 471 U.S. at 10).\\n\\n\\n 71\\n\\n Case: 14-10228 Document: 00515085664 Page: 72 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\na confrontation determines whether they properly used deadly force during the\\nconfrontation. See id. at 992–93 (rejecting argument that “circumstances\\nsurrounding a forced entry” bear on “the reasonableness of the officers’ use of\\ndeadly force”). The cases Rockwell cited say that plainly. See, e.g., Fraire v. City\\nof Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (“[R]egardless of what had\\ntranspired up until the shooting itself, [the suspect’s] movements gave the\\nofficer reason to believe, at that moment, that there was a threat of physical\\nharm.”). 4 And the key case Rockwell quoted for the “moment-of-the-threat”\\npoint recognized that pre-confrontation events could “set the stage for what\\nfollowed in the field.” Bazan, 246 F.3d at 493.\\n By misreading our cases, the district court blinded itself to a rich vein of\\nfacts—facts Cole did not dispute below—that round out the picture of the\\nofficers’ violent encounter with Cole. At a minimum, that error alone requires\\nreversing the denial of summary judgment and remanding for reconsideration\\nof the officers’ actions in light of all relevant undisputed facts. See, e.g., White\\nv. Balderama, 153 F.3d 237, 242 (5th Cir. 1998) (concluding “limited remand”\\nwas appropriate given “lack of specificity in . . . district court’s order denying\\nsummary judgment on the basis of qualified immunity”).\\n Second, the undisputed pre-encounter events underscore why, contrary\\nto the majority’s view, this is far from an “obvious case.” Maj. at 16. An “obvious\\ncase,” the Supreme Court has explained, is one where an officer’s actions are\\n\\n\\n\\n\\n 4 Our cases continue to apply the Rockwell “moment-of-the-threat” principle in this\\nway. See, e.g., Shepherd v. City of Shreveport, 920 F.3d 278 (5th Cir. 2019) (explaining that,\\nbecause the excessive force inquiry is “confined to whether the officer was in danger at the\\nmoment of the threat[,] . . . [t]herefore, any of the officers’ actions leading up to the shooting\\nare not relevant”) (emphasis added) (internal quotes and citation omitted); Harris v. Serpas,\\n745 F.3d 767, 772–73 (5th Cir. 2014) (same) (discussing Rockwell).\\n\\n\\n 72\\n\\n Case: 14-10228 Document: 00515085664 Page: 73 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nplainly unlawful under a generalized legal test, even if those actions do not\\ncontravene a “body of relevant case law.” Brosseau, 543 U.S. at 199 (citing Hope\\nv. Pelzer, 536 U.S. 730, 738 (2002)); see also, e.g., White v. Pauly, 137 S. Ct. 548,\\n552 (2017) (an “obvious case” means that “in the light of pre-existing law the\\nunlawfulness [of the officer’s actions] must be apparent”) (citing Anderson v.\\nCreighton, 483 U.S. 635, 640 (1987)) (cleaned up). As I understand the majority\\nopinion, it believes this is an obvious case because a jury could find that\\n(1) Cole “posed no threat” to the officers; (2) the officers fired “without\\nwarning”; and (3) the officers had “time and opportunity” to warn Cole, but did\\nnot. Maj. at 15. According to the majority, this scenario would plainly violate\\nGarner’s generalized test that an officer may not use deadly force to apprehend\\na suspect who “poses no immediate threat to the officer,” unless he warns the\\nsuspect “where feasible.” Id. (quoting Garner, 471 U.S. at 11–12).\\n Judge Jones’ dissent shows that, even resolving all disputed facts in\\nCole’s favor, the officers did not “obviously” violate Garner’s generalized test\\nduring the immediate shooting—that is, when in the space of five seconds at\\nmost, the officers met Cole at a distance of 10–20 feet as he backed out of the\\nwoods, still armed, and began to turn. Jones Dissent at 11–12. But if we include\\nthe undisputed facts leading up to the shooting, the notion that this is an\\n“obvious case” crumbles. To believe that, we would have to blind ourselves to\\nthe facts that (1) the officers were searching for an irate, distraught suspect;\\n(2) who was wandering through the woods armed with a loaded semi-automatic\\nhandgun; (3) who had refused police demands to turn over his weapon; (4) who\\nhad just that morning deposited a cache of weapons and ammunition at his\\nfriend’s house; and (5) who had threatened to “shoot anyone who came near\\nhim.” Those were the “totality of the circumstances” facing the officers, Colston,\\n130 F.3d at 100, and they were not disputed by Cole or the district court. Given\\n\\n\\n 73\\n\\n Case: 14-10228 Document: 00515085664 Page: 74 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthose circumstances, the officers might have taken any number of actions when\\nthey met Cole in the woods that morning—they might have warned him, or\\nshot him, or shot in the air, or retreated, or remained frozen in place to see\\nwhat he would do. But to say it is “obvious” what they should have done is to\\ndenude the concept of an “obvious case” of any meaning.\\n Once stripped of the conceit that this is an “obvious case,” the majority\\nhas nothing left to justify its holding. The Supreme Court has bluntly told us\\nthat, outside the “obvious case” scenario, “Garner . . . do[es] not by [itself]\\ncreate clearly established law[.]” White v. Pauly, 137 S. Ct. at 552. And, of\\ncourse, the majority does not try to claim that the facts of Garner are anything\\nlike this case. In Garner, a police officer shot a fleeing, unarmed burglar in the\\nback of the head. The officer admitted he did not even suspect the burglar was\\narmed. See 471 U.S. at 3 (noting the officer “saw no sign of a weapon” at the\\ntime he shot and, afterwards, admitted “[he] was ‘reasonably sure’ and ‘figured’\\nthat [the suspect] was unarmed”). Apples and oranges does not capture the\\nchasm between that case and this one.\\n The majority does claim that our 1996 decision in Baker v. Putnal,\\n“clearly established” that the officers’ conduct here was unlawful. Maj. at 16\\n(citing 75 F.3d 190, 193 (5th Cir. 1996)). That is mistaken. In Baker, Officer\\nPutnal was patrolling a crowded beach area when gunfire erupted. Id.\\nWitnesses directed Putnal “toward a red car which they said contained the\\nshooters.” Id. He approached that car, but then saw two people sitting in\\nanother vehicle, a truck. Id. One of the truck’s passengers, Wendell Baker,\\n“turned in Putnal’s direction . . . [and] Putnal shot and killed [him].” Id. While\\na pistol was recovered from the truck, the plaintiffs denied Baker “was holding\\na pistol” when shot. Id. at 196. In other words, a jury could have found Baker\\nwas not holding a gun when Putnal killed him.\\n\\n\\n 74\\n\\n Case: 14-10228 Document: 00515085664 Page: 75 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n It is not hard to grasp the key difference between Baker and this case.\\nWhen shot, Baker was possibly not even holding a gun. When shot, Cole was\\nundisputedly holding a gun. Imagine this conversation between a police officer\\nand the police department’s lawyer:\\n\\n OFFICER: I heard the Fifth Circuit just decided this Baker case. What\\n does it tell me I should or shouldn’t do in the field?\\n LAWYER: Well, Baker says you lose qualified immunity if you shoot\\n someone sitting in a car doing nothing more threatening\\n than just turning in your direction. In other words, someone\\n you don’t even see holding a weapon.\\n OFFICER: Makes sense. But tell me this. What if the person I approach\\n is holding a gun?\\n LAWYER: Well, Baker doesn’t speak clearly to that situation. I mean,\\n the jury in Baker could have found the guy didn’t even have\\n a gun in his hand when the officer shot him.\\n\\nIn other words, contrary to the majority’s view, Baker could not have\\n“established clearly that Cassidy’s and Hunter’s conduct . . . was unlawful”\\nwhen they shot Cole as he emerged from the woods with his finger on the\\ntrigger of a loaded gun. Maj. at 16. To guide officers in the field, a controlling\\nprecedent must be “sufficiently clear that every reasonable [officer] would have\\nunderstood that what he is doing violates” the Constitution. Mullenix, 136 S.\\nCt. at 308 (cleaned up). Baker does not come close.\\n The officers deserve qualified immunity on the excessive force claims. I\\nrespectfully dissent.\\n\\n\\n\\n\\n 75\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431737/\", \"author_raw\": \"OLDHAM, Circuit Judges, dissenting\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"HIGGINBOTHAM"},"judge3":{"kind":"string","value":"JONES"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"SMITH; DENNIS; CLEMENT; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM"},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Chief\", \"HIGGINBOTHAM\": \", Circuit\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\", \"DENNIS\": \", Circuit\", \"CLEMENT\": \", Circuit\", \"OWEN\": \", Circuit\", \"ELROD\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"COSTA\": \", Circuit\", \"WILLETT\": \", Circuit\", \"HO\": \", Circuit\", \"DUNCAN\": \", Circuit\", \"ENGELHARDT\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":8,"string":"8"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":6,"string":"6"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4654484/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Randy Cole v. Michael Hunter\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-21\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 14-10228 Document: 00515085664 Page: 1 Date Filed: 08/21/2019\n\n\n\n\n REVISED August 21, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 14-10228 August 20, 2019\n Lyle W. Cayce\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\n\n\n Plaintiffs-Appellees\nv.\n\nCARL CARSON,\n\n Defendant-Appellant\n\n ****************\n\n\n No. 15-10045\n\n\nRANDY COLE; KAREN COLE; RYAN COLE,\n\n Plaintiffs-Appellees\nv.\n\nMICHAEL HUNTER; MARTIN CASSIDY,\n\n Defendants-Appellants\n\n\n Appeals from the United States District Court\n for the Northern District of Texas\n _______________________\n\n ON PETITION FOR REHEARING EN BANC FOLLOWING\n REMAND FROM THE UNITED STATES SUPREME COURT\n\n Case: 14-10228 Document: 00515085664 Page: 2 Date Filed: 08/21/2019\n\n\n\n No. 14-10228 c/w No. 15-10045\n\n\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\nOLDHAM, Circuit Judges.\n\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\nJENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA\nHAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA,\nand KURT D. ENGELHARDT, Circuit Judges: 1\n\n The Supreme Court over several years has developed protection from\ncivil liability for persons going about their tasks as government workers in the\nform of immunity; not the absolute immunity enjoyed by prosecutors and\njudges, but a qualified immunity. Today we again repair to issues inherent in\nthe qualification. The doctrine protects at the earliest stage of litigation at\nwhich the defense’s application is determinable. To that end, courts have\ndeveloped procedures and pretrial practices, including appellate review of\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\nanswer under Rule 7(a) on order of the district court, particularized to address\nthe defense of immunity in a motion to dismiss or for summary judgment.\nWhen those processes do not yield pretrial resolution, as with competing\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\nfirst point at which its application is determinable. And in obeisance to\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\na jury—long a bastion interposed between the state and person, and assured\nby the Founders. And it signifies that today the district judge has multiple\n\n\n\n\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\nparticipating as members of the original panel.\n\n 2\n\n Case: 14-10228 Document: 00515085664 Page: 3 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nways to present fully the claims and defenses to a jury to ensure the\ngovernment worker a full draw upon his immunity defense, 2 including\nresolution of the competing factual narratives, one of which—or a meld of\nboth—may foreclose liability. 3\n In this case, police officers from Sachse, Texas argue that the district\ncourt should have sustained their defense of qualified immunity on their\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\nwhat happened. The officers filed dispositive pretrial motions in the district\ncourt, asserting the defense of qualified immunity. The district court denied\nthese motions, concluding that immunity could not be determined at this stage\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\n\n\n\n\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\n 3 In any treatment of the jury’s role in stepping between state-afforded process\n\nand an individual defendant, it bears emphasis that the district judge can impanel a\njury of at least six and as many as twelve members whose verdict, absent the parties’\nagreement otherwise, must be unanimous.\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\n\nHunter v. Cole, 137 S. Ct. 497 (2016).\n\n\n 3\n\n Case: 14-10228 Document: 00515085664 Page: 4 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\nthe denial of summary judgment as to the excessive-force claim. Because the\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\nlight of Mullenix.\n We conclude that it will be for a jury, and not judges, to resolve the\ncompeting factual narratives as detailed in the district court opinion and the\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\nAmendment and Brady fabrication-of-evidence claims based on qualified\nimmunity; and return the case to the district court for trial and resolution of\nissues consistent with this opinion.\n I\n A.\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\nDepartment called available units to the neighboring town of Garland, Texas.\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\n\n\n\n\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\ncuriam)).\n\n 4\n\n Case: 14-10228 Document: 00515085664 Page: 5 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nreported to be walking in the neighborhood with a handgun. Officer Michael\nHunter responded by proceeding immediately to the Garland neighborhood. In\na statement given on the day of the incident, Hunter related that on arriving\nin the neighborhood, he overheard a civilian stating that Ryan had given up\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\nkeep his handgun. Hunter searched the area, and saw two officers following\nRyan, who was walking away from them holding his gun to his head,\napproaching a wooded area along Highway 78. Although told by officers that\nthings were under control, Hunter volunteered to go behind the wooded area\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\nalso present, join him.\n Four years later, after this litigation had commenced, Hunter for the first\ntime recalled that the civilian he had overheard had described an altercation\nwith Ryan in which Ryan had threatened him. He also then for the first time\nrecalled hearing police-radio transmissions indicating that officers were\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\na risk of serious harm to a great many innocent in the vicinity.” Hunter\notherwise learned nothing “that would cause [him] to believe [Ryan] was\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\nand, four years after the incident, he also raised the possibility that Ryan was\nusing suicide as a pretext to evade the police.\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\ninformation. On the day of the incident, Cassidy swore that he learned “this\n\n\n\n\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\n\n 5\n\n Case: 14-10228 Document: 00515085664 Page: 6 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nsubject had shown up at [a] residence with a handgun and had just recently\nbeen seen walking away.” But, four years later, after this litigation had\ncommenced, like Hunter, Cassidy remembered learning more, including that\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\nan order to drop his weapon; and might be headed for Sachse High School “to\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\nHighway 78.\n The three officers separately arrived at the side of Highway 78 at around\nthe same time. Hunter parked his motorbike and drew his duty weapon;\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\nThe officers started walking along the tree line. A steep embankment rose from\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\nembankment to approach the tree line. Cassidy and Hunter used both the edge\nof the embankment and the vegetation to conceal themselves as they walked.\nHunter also removed his white motorcycle helmet in order to be less\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\nascending to the tree line. Hunter heard movement in the brush, and signaled\nto his colleagues.\n What occurred next is disputed. Viewing the summary judgment\nevidence and drawing reasonable inferences in the light most favorable to the\nnon-movant Coles, the district court determined that a reasonable jury could\nfind the following: Ryan backed out from the tree line in front of Hunter and\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\n\n\n\n\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\nin a light most favorable to the Coles, the district court relied on the physical and\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\n\n\n 6\n\n Case: 14-10228 Document: 00515085664 Page: 7 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\nat the Officers,” 9 and “never made a threatening or provocative gesture\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\nnot know that.\n Following the shooting, the three officers remained together at the scene.\nThe Coles allege that during this time the officers conspired to insulate Cassidy\nand Hunter from liability with a fabricated narrative in which Ryan was facing\nHunter and pointed his weapon at the officer, at which point Cassidy and\n\n\n\n\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\nhave been aware of the presence of the police officers prior to the time he was shot.”\n 8 Cole, 68 F. Supp. 3d at 644.\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\n\nargument that Cole did not know of the Officers’ presence.”).\n 10 Cole, 68 F. Supp. 3d at 645–46.\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\n\nduring which they could have called out to Cole, sufficient time to make a warning\naccording to Cole’s expert.\n 12 Cole, 68 F. Supp. 3d at 645.\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\n 14 Id. at 644.\n 15 Cole, 68 F. Supp. 3d at 644.\n 16 Id.\n\n\n 7\n\n Case: 14-10228 Document: 00515085664 Page: 8 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\nDepartment arrived and took control of the scene, but did not follow the\nstandard procedure of separating witnesses to ensure independent\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\npolice station together. Later that day, the officers provided statements to\ninvestigators. Hunter stated that he had no chance to issue a command to\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\nstated that Ryan then turned towards Hunter and pointed his handgun at\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\ndefensively. 17\n The Dallas County District Attorney presented the officers’ narrative to\na grand jury, which no-billed the officers and charged Ryan with felony\naggravated assault of a public servant. As a result of the charge, Ryan,\nincapacitated in intensive care, was placed under house arrest. About a month\nafter the indictment, investigators received a ballistics report from the crime\nlab. The ballistics analysis, taken together with stippling observed around\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\n Ryan suffered permanent injuries, including cognitive impairment,\npartial paralysis, and other serious mental and physical disabilities.\n\n\n\n\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\nhis line of sight.\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\n\nreleased immediately around a discharging firearm.\n\n 8\n\n Case: 14-10228 Document: 00515085664 Page: 9 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\n B.\n The Coles brought, inter alia, four Section 1983 claims against the\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\nagainst the use of excessive force arising from the shooting. Second, the Coles\nallege a violation of Ryan’s Fourteenth Amendment right against the\nimposition of false charges arising from the fabrication of evidence. Third, they\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\nviolation arising from the fabrication of evidence. The officers filed a motion to\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\ndefenses. The district court denied the motion in a January 2014 Memorandum\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\nqualified immunity defenses to the excessive-force claim. With that discovery\ncomplete, the two officers moved for summary judgment, rearguing qualified\nimmunity. The district court denied their motion and Cassidy and Hunter\nappealed.\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\ncourt affirmed the district court’s denial of summary judgment on the Coles’\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\n\n\n\n\n 19 The Coles filed an initial complaint in September 2012. The officers moved\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\nreply to the immunity defense. The district court then afforded the Coles opportunity\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\nThe officers then filed a second motion to dismiss.\n\n 9\n\n Case: 14-10228 Document: 00515085664 Page: 10 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nFourteenth Amendment false-charge claim, and reversed the denial as to the\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\nthe qualified immunity defense applicable for these claims. The officers\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\nSupreme Court granted certiorari, vacated the panel’s judgment, and\nremanded the case for further consideration in light of Mullenix v. Luna, 20\ndecided in the intervening time. 21\n On remand from the Supreme Court, recognizing that its jurisdiction\nwas limited to determining the materiality of factual disputes that the district\ncourt determined were genuine, the panel once again held that the\napplicability of qualified immunity for Cassidy and Hunter could not be\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\nremand order reached no further, the panel reinstated the Cole I opinion on\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\nrehearing en banc, which we granted. 24\n\n\n\n\n 20 136 S. Ct. 305 (2015).\n 21 As this court and others have acknowledged, when the Supreme Court\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\n\n378, 379 (5th Cir. 2019).\n 23 Id. at 341–42.\n 24 Cole, 915 F.3d at 379.\n\n\n\n\n 10\n\n Case: 14-10228 Document: 00515085664 Page: 11 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\n II\n A.\n We hear this case on remand from the Court for further consideration in\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\nimposition of false charges. 26 Second, finding qualified immunity applicable,\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\nqualified immunity applicable, we reverse the denial of the motion to dismiss\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\nviolation. 28\n\n\n\n\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\ndetention can violate the Fourth Amendment not only when it precedes, but also\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\n“Manuel does not address the availability of due process challenges after a legal\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\n 26 See Cole I, 802 F.3d at 766–74.\n 27 See id. at 764–65.\n 28 See id. at 765.\n\n\n\n\n 11\n\n Case: 14-10228 Document: 00515085664 Page: 12 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\n B.\n The qualified immunity inquiry includes two parts. In the first we ask\nwhether the officer’s alleged conduct has violated a federal right; in the second\nwe ask whether the right in question was “clearly established” at the time of\nthe alleged violation, such that the officer was on notice of the unlawfulness of\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\nviolation, or if the conduct did not violate law clearly established at the time. 30\n On an appeal of a denial of summary judgment on the basis of qualified\nimmunity, our jurisdiction is limited to examining the materiality of factual\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\nappeal we cannot challenge the district court’s assessments regarding the\nsufficiency of the evidence—that is, the question whether there is enough\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\nlack jurisdiction to resolve the genuineness of any factual disputes” and\n“consider only whether the district court erred in assessing the legal\nsignificance of the conduct that the district court deemed sufficiently supported\nfor purposes of summary judgment.” 33 Like the district court, we must view\nthe facts and draw reasonable inferences in the light most favorable to the\nplaintiff and ask whether the defendant would be entitled to qualified\n\n\n\n\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\n 30 Id.\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\n\nthe determination of qualified immunity would require the resolution of a genuinely\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\n\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\n 33 Id. (internal quotations omitted).\n\n\n\n\n 12\n\n Case: 14-10228 Document: 00515085664 Page: 13 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\ncourt for failing to take the evidence and draw factual inferences in the non-\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\nemphasized that the requirement is no less binding “even when . . . a court\ndecides only the clearly-established prong of the standard.” 36 Within the\nlimited scope of our inquiry, review is de novo. 37\n As instructed, we turn to the guidance provided by the Supreme Court\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\nan officer who had shot and killed a fugitive in a car chase. This court had\ndecided that the officer violated the clearly established rule that deadly force\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\nsome threat of harm, but we had held the threat was not “sufficient.” The\nSupreme Court reversed our decision. It found that the rule we articulated\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\nnot reasonably derive an applicable rule to govern his or her conduct in the\nsituation. 41 Finding that we had defined the applicable rule with too much\n\n\n\n\n 34 Lytle, 560 F.3d at 409.\n 35 Tolan, 572 U.S. at 660.\n 36 Id. at 657.\n 37 Trent, 776 F.3d at 376.\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\n 39 Id. at 309.\n 40 Id. at 309–10.\n 41 Id.\n\n\n\n\n 13\n\n Case: 14-10228 Document: 00515085664 Page: 14 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\n“generality,” 42 the Court reversed our holding that the officer had violated\nclearly established law. 43\n Under Mullenix, application of clearly established law is undertaken\nwith close attention to the relevant legal rule and the particular facts of the\ncase. Here, based on the facts taken in the light most favorable to the non-\nmovant Coles, and with reasonable inferences drawn in their favor, the district\ncourt determined there were genuine factual disputes as to Ryan’s and the\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\npose an immediate threat to the officers” when they opened fire. 44 It held that\n“on October 25, 2010, the date of the shooting, the law was clearly established”\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\nentire time at his own head and facing away from the officer, in an open\noutdoor area, and who was unaware of the officer’s presence because no\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\ndetail, the officers ask us to consider a different set of facts, but we cannot do\nso. We lack jurisdiction to reconsider the district court’s factual determinations\non an appeal from denial of summary judgment on qualified immunity.\n Tennessee v. Garner announced the principle that the use of deadly force\nis permitted only to protect the life of the shooting officer or others: “Where the\nsuspect poses no immediate threat to the officer and no threat to others, the\nharm resulting from failing to apprehend him does not justify the use of deadly\n\n\n\n\n 42 Id. at 311.\n 43 Id. at 312.\n 44 Cole, 68 F. Supp. 3d at 645.\n 45 Id. at 643.\n\n\n\n\n 14\n\n Case: 14-10228 Document: 00515085664 Page: 15 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nforce to do so.” 46 Garner also requires a warning before deadly force is used\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\nobvious cases, and this court has applied it in such cases, without dependence\non the fact patterns of other cases. 48\n The summary judgment facts, as determined by the district court, are\nthat Ryan posed no threat to the officers or others to support firing without\nwarning. The “Officers had the time and opportunity to give a warning and yet\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\nbeen facing him and pointing a gun at him.\n This case is obvious when we accept the facts as we must. It is also\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\nthis stage—was unlawful. For in Baker, members of the public told Officer\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\nduring spring break, that “someone had entered the crowd with a pistol-\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\n\n\n\n\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\n\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\n2012).\n 49 Cole, 68 F. Supp. 3d at 645.\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\n\n\n\n\n 15\n\n Case: 14-10228 Document: 00515085664 Page: 16 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\npeople directed the officer to a car in which the gunman was supposedly\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\n[Baker] took no threatening action . . . as the officer approached the truck,”\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\nparties did not dispute that Putnal had been searching for a gunman, and that\na gun had been recovered from Baker’s seat, although they disputed whether\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\nIt was also undisputed that Baker was turning to face Putnal from his seat,\nalthough medical reports indicated from “the nature of the wounds . . . that\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\nThe district court granted Putnal qualified immunity, crediting his account\n\n\n\n\n 51 Id.\n 52 Id. at 198.\n 53 Id. at 193.\n 54 Id.\n 55 Id. at 198.\n 56 Id.\n 57 Id.\n 58 Id.\n 59 Id. at 193.\n\n\n\n\n 16\n\n Case: 14-10228 Document: 00515085664 Page: 17 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nthat he had fired in response to Baker turning and aiming the gun at him. 60\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\nposition of Baker’s gun, we found “simply too many factual issues to permit the\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\nreasons to find that [the officer’s] use of force was not excessive as a matter of\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\nto the nonmoving party,” we held that “[t]he number of shots and the nature\nof the wounds raise . . . more of a question of fact than a court may dispose of\non summary judgment.” 64\n The Supreme Court’s more recent qualified immunity decisions do not\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\nresponded to a call that a woman was behaving erratically with a knife and\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\napproached to within “striking distance” of a bystander in the driveway. 66 One\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\n\n\n\n\n 60 Id. at 197.\n 61 Id. at 198.\n 62 Id.\n 63 Id.\n 64 Id. at 198–99.\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\n 66 Id.; id. at 1154.\n\n\n\n\n 17\n\n Case: 14-10228 Document: 00515085664 Page: 18 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\nHughes brought a Section 1983 excessive force claim against Kisela. 69\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\nrefusal to follow his repeated commands to drop the knife while within striking\ndistance of the bystander—obstinance that heightened the risk of immediate\nharm to another—the law did not clearly establish that the officer’s resort to\ndeadly force was unlawful. 70\n In this case, Officers Cassidy and Hunter found themselves in a search\nfor a suicidal teenager who they knew had already encountered fellow officers\nand walked away from them with his gun to his head, non-responsive, but\nwithout aggressive action. The circumstances of the officers’ encounter with\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\nthe officers, whether and how he turned and aimed his gun, and whether\nHunter warned Ryan to disarm himself. The district court here defined the\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\nviewing these disputes in a light most favorable to the Coles, concluded that a\nreasonable jury could find that Ryan made no threatening or provocative\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\nthe district court concluded that a reasonable jury could find Cassidy and\n\n\n\n\n 67 Id. at 1151.\n 68 Id.\n 69 Id.\n 70 Id. at 1153.\n\n\n 18\n\n Case: 14-10228 Document: 00515085664 Page: 19 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\nHunter opened fire upon Ryan without warning, even though it was feasible.\nOn these facts, the officers’ conduct violates clearly established law.\n Rather than engage on the facts as we must take them at the summary\njudgment stage, the officers repeatedly argue from a different set of facts.\nWhile the district court found that Ryan was initially facing away from the\nofficers when they fired the first shot, the officers now describe his “armed turn\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\naimed at his own head and never pointed it at the officers, the officers now\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\nthen only momentarily turned back towards Ryan’s head at the moment he\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\npointed toward him—a story prosecutors accepted until a ballistics report\nexposed its impossibility). And although the district court found that Ryan was\nnot given an opportunity to disarm himself, the officers contend that he was\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\nargument to us as a full court, and in the teeth of those found by the district\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\nestablished law in 2010 put the officers’ response of firing in self-defense\nbeyond the law.\n The Coles and amicus Cato Institute are correct that it is beyond our\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\n“[I]f an excessive force claim turns on which of two conflicting stories best\ncaptures what happened on the street,” the caselaw “will not permit summary\n\n\n\n\n 19\n\n Case: 14-10228 Document: 00515085664 Page: 20 Date Filed: 08/21/2019\n\n\n No. 14-10228 c/w No. 15-10045\n\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\nWhereas the officers will have a chance to present their factual narrative—and\nto question the Coles’—at trial, they cannot contest the facts in the current\nappeal. 72\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Randy Cole v. Michael Hunter\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-21\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 14-10228 Document: 00515085664 Page: 1 Date Filed: 08/21/2019\\n\\n\\n\\n\\n REVISED August 21, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 14-10228 August 20, 2019\\n Lyle W. Cayce\\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\\n\\n\\n Plaintiffs-Appellees\\nv.\\n\\nCARL CARSON,\\n\\n Defendant-Appellant\\n\\n ****************\\n\\n\\n No. 15-10045\\n\\n\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs-Appellees\\nv.\\n\\nMICHAEL HUNTER; MARTIN CASSIDY,\\n\\n Defendants-Appellants\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n _______________________\\n\\n ON PETITION FOR REHEARING EN BANC FOLLOWING\\n REMAND FROM THE UNITED STATES SUPREME COURT\\n\\n Case: 14-10228 Document: 00515085664 Page: 2 Date Filed: 08/21/2019\\n\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n\\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\\nOLDHAM, Circuit Judges.\\n\\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\\nJENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA\\nHAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA,\\nand KURT D. ENGELHARDT, Circuit Judges: 1\\n\\n The Supreme Court over several years has developed protection from\\ncivil liability for persons going about their tasks as government workers in the\\nform of immunity; not the absolute immunity enjoyed by prosecutors and\\njudges, but a qualified immunity. Today we again repair to issues inherent in\\nthe qualification. The doctrine protects at the earliest stage of litigation at\\nwhich the defense’s application is determinable. To that end, courts have\\ndeveloped procedures and pretrial practices, including appellate review of\\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\\nanswer under Rule 7(a) on order of the district court, particularized to address\\nthe defense of immunity in a motion to dismiss or for summary judgment.\\nWhen those processes do not yield pretrial resolution, as with competing\\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\\nfirst point at which its application is determinable. And in obeisance to\\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\\na jury—long a bastion interposed between the state and person, and assured\\nby the Founders. And it signifies that today the district judge has multiple\\n\\n\\n\\n\\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\\nparticipating as members of the original panel.\\n\\n 2\\n\\n Case: 14-10228 Document: 00515085664 Page: 3 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nways to present fully the claims and defenses to a jury to ensure the\\ngovernment worker a full draw upon his immunity defense, 2 including\\nresolution of the competing factual narratives, one of which—or a meld of\\nboth—may foreclose liability. 3\\n In this case, police officers from Sachse, Texas argue that the district\\ncourt should have sustained their defense of qualified immunity on their\\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\\nwhat happened. The officers filed dispositive pretrial motions in the district\\ncourt, asserting the defense of qualified immunity. The district court denied\\nthese motions, concluding that immunity could not be determined at this stage\\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\\n\\n\\n\\n\\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\\n 3 In any treatment of the jury’s role in stepping between state-afforded process\\n\\nand an individual defendant, it bears emphasis that the district judge can impanel a\\njury of at least six and as many as twelve members whose verdict, absent the parties’\\nagreement otherwise, must be unanimous.\\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\\n\\nHunter v. Cole, 137 S. Ct. 497 (2016).\\n\\n\\n 3\\n\\n Case: 14-10228 Document: 00515085664 Page: 4 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\\nthe denial of summary judgment as to the excessive-force claim. Because the\\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\\nlight of Mullenix.\\n We conclude that it will be for a jury, and not judges, to resolve the\\ncompeting factual narratives as detailed in the district court opinion and the\\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims based on qualified\\nimmunity; and return the case to the district court for trial and resolution of\\nissues consistent with this opinion.\\n I\\n A.\\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\\nDepartment called available units to the neighboring town of Garland, Texas.\\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\\n\\n\\n\\n\\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\\ncuriam)).\\n\\n 4\\n\\n Case: 14-10228 Document: 00515085664 Page: 5 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nreported to be walking in the neighborhood with a handgun. Officer Michael\\nHunter responded by proceeding immediately to the Garland neighborhood. In\\na statement given on the day of the incident, Hunter related that on arriving\\nin the neighborhood, he overheard a civilian stating that Ryan had given up\\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\\nkeep his handgun. Hunter searched the area, and saw two officers following\\nRyan, who was walking away from them holding his gun to his head,\\napproaching a wooded area along Highway 78. Although told by officers that\\nthings were under control, Hunter volunteered to go behind the wooded area\\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\\nalso present, join him.\\n Four years later, after this litigation had commenced, Hunter for the first\\ntime recalled that the civilian he had overheard had described an altercation\\nwith Ryan in which Ryan had threatened him. He also then for the first time\\nrecalled hearing police-radio transmissions indicating that officers were\\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\\na risk of serious harm to a great many innocent in the vicinity.” Hunter\\notherwise learned nothing “that would cause [him] to believe [Ryan] was\\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\\nand, four years after the incident, he also raised the possibility that Ryan was\\nusing suicide as a pretext to evade the police.\\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\\ninformation. On the day of the incident, Cassidy swore that he learned “this\\n\\n\\n\\n\\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\\n\\n 5\\n\\n Case: 14-10228 Document: 00515085664 Page: 6 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nsubject had shown up at [a] residence with a handgun and had just recently\\nbeen seen walking away.” But, four years later, after this litigation had\\ncommenced, like Hunter, Cassidy remembered learning more, including that\\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\\nan order to drop his weapon; and might be headed for Sachse High School “to\\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\\nHighway 78.\\n The three officers separately arrived at the side of Highway 78 at around\\nthe same time. Hunter parked his motorbike and drew his duty weapon;\\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\\nThe officers started walking along the tree line. A steep embankment rose from\\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\\nembankment to approach the tree line. Cassidy and Hunter used both the edge\\nof the embankment and the vegetation to conceal themselves as they walked.\\nHunter also removed his white motorcycle helmet in order to be less\\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\\nascending to the tree line. Hunter heard movement in the brush, and signaled\\nto his colleagues.\\n What occurred next is disputed. Viewing the summary judgment\\nevidence and drawing reasonable inferences in the light most favorable to the\\nnon-movant Coles, the district court determined that a reasonable jury could\\nfind the following: Ryan backed out from the tree line in front of Hunter and\\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\\n\\n\\n\\n\\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\\nin a light most favorable to the Coles, the district court relied on the physical and\\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\\n\\n\\n 6\\n\\n Case: 14-10228 Document: 00515085664 Page: 7 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\\nat the Officers,” 9 and “never made a threatening or provocative gesture\\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\\nnot know that.\\n Following the shooting, the three officers remained together at the scene.\\nThe Coles allege that during this time the officers conspired to insulate Cassidy\\nand Hunter from liability with a fabricated narrative in which Ryan was facing\\nHunter and pointed his weapon at the officer, at which point Cassidy and\\n\\n\\n\\n\\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\\nhave been aware of the presence of the police officers prior to the time he was shot.”\\n 8 Cole, 68 F. Supp. 3d at 644.\\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\\n\\nargument that Cole did not know of the Officers’ presence.”).\\n 10 Cole, 68 F. Supp. 3d at 645–46.\\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\\n\\nduring which they could have called out to Cole, sufficient time to make a warning\\naccording to Cole’s expert.\\n 12 Cole, 68 F. Supp. 3d at 645.\\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\\n 14 Id. at 644.\\n 15 Cole, 68 F. Supp. 3d at 644.\\n 16 Id.\\n\\n\\n 7\\n\\n Case: 14-10228 Document: 00515085664 Page: 8 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\\nDepartment arrived and took control of the scene, but did not follow the\\nstandard procedure of separating witnesses to ensure independent\\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\\npolice station together. Later that day, the officers provided statements to\\ninvestigators. Hunter stated that he had no chance to issue a command to\\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\\nstated that Ryan then turned towards Hunter and pointed his handgun at\\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\\ndefensively. 17\\n The Dallas County District Attorney presented the officers’ narrative to\\na grand jury, which no-billed the officers and charged Ryan with felony\\naggravated assault of a public servant. As a result of the charge, Ryan,\\nincapacitated in intensive care, was placed under house arrest. About a month\\nafter the indictment, investigators received a ballistics report from the crime\\nlab. The ballistics analysis, taken together with stippling observed around\\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\\n Ryan suffered permanent injuries, including cognitive impairment,\\npartial paralysis, and other serious mental and physical disabilities.\\n\\n\\n\\n\\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\\nhis line of sight.\\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\\n\\nreleased immediately around a discharging firearm.\\n\\n 8\\n\\n Case: 14-10228 Document: 00515085664 Page: 9 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The Coles brought, inter alia, four Section 1983 claims against the\\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\\nagainst the use of excessive force arising from the shooting. Second, the Coles\\nallege a violation of Ryan’s Fourteenth Amendment right against the\\nimposition of false charges arising from the fabrication of evidence. Third, they\\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\\nviolation arising from the fabrication of evidence. The officers filed a motion to\\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\\ndefenses. The district court denied the motion in a January 2014 Memorandum\\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\\nqualified immunity defenses to the excessive-force claim. With that discovery\\ncomplete, the two officers moved for summary judgment, rearguing qualified\\nimmunity. The district court denied their motion and Cassidy and Hunter\\nappealed.\\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\\ncourt affirmed the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\\n\\n\\n\\n\\n 19 The Coles filed an initial complaint in September 2012. The officers moved\\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\\nreply to the immunity defense. The district court then afforded the Coles opportunity\\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\\nThe officers then filed a second motion to dismiss.\\n\\n 9\\n\\n Case: 14-10228 Document: 00515085664 Page: 10 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nFourteenth Amendment false-charge claim, and reversed the denial as to the\\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\\nthe qualified immunity defense applicable for these claims. The officers\\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\\nSupreme Court granted certiorari, vacated the panel’s judgment, and\\nremanded the case for further consideration in light of Mullenix v. Luna, 20\\ndecided in the intervening time. 21\\n On remand from the Supreme Court, recognizing that its jurisdiction\\nwas limited to determining the materiality of factual disputes that the district\\ncourt determined were genuine, the panel once again held that the\\napplicability of qualified immunity for Cassidy and Hunter could not be\\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\\nremand order reached no further, the panel reinstated the Cole I opinion on\\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\\nrehearing en banc, which we granted. 24\\n\\n\\n\\n\\n 20 136 S. Ct. 305 (2015).\\n 21 As this court and others have acknowledged, when the Supreme Court\\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\\n\\n378, 379 (5th Cir. 2019).\\n 23 Id. at 341–42.\\n 24 Cole, 915 F.3d at 379.\\n\\n\\n\\n\\n 10\\n\\n Case: 14-10228 Document: 00515085664 Page: 11 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II\\n A.\\n We hear this case on remand from the Court for further consideration in\\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\\nimposition of false charges. 26 Second, finding qualified immunity applicable,\\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\\nqualified immunity applicable, we reverse the denial of the motion to dismiss\\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\\nviolation. 28\\n\\n\\n\\n\\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\\ndetention can violate the Fourth Amendment not only when it precedes, but also\\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\\n“Manuel does not address the availability of due process challenges after a legal\\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\\n 26 See Cole I, 802 F.3d at 766–74.\\n 27 See id. at 764–65.\\n 28 See id. at 765.\\n\\n\\n\\n\\n 11\\n\\n Case: 14-10228 Document: 00515085664 Page: 12 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The qualified immunity inquiry includes two parts. In the first we ask\\nwhether the officer’s alleged conduct has violated a federal right; in the second\\nwe ask whether the right in question was “clearly established” at the time of\\nthe alleged violation, such that the officer was on notice of the unlawfulness of\\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\\nviolation, or if the conduct did not violate law clearly established at the time. 30\\n On an appeal of a denial of summary judgment on the basis of qualified\\nimmunity, our jurisdiction is limited to examining the materiality of factual\\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\\nappeal we cannot challenge the district court’s assessments regarding the\\nsufficiency of the evidence—that is, the question whether there is enough\\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\\nlack jurisdiction to resolve the genuineness of any factual disputes” and\\n“consider only whether the district court erred in assessing the legal\\nsignificance of the conduct that the district court deemed sufficiently supported\\nfor purposes of summary judgment.” 33 Like the district court, we must view\\nthe facts and draw reasonable inferences in the light most favorable to the\\nplaintiff and ask whether the defendant would be entitled to qualified\\n\\n\\n\\n\\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\\n 30 Id.\\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\\n\\nthe determination of qualified immunity would require the resolution of a genuinely\\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\\n\\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\\n 33 Id. (internal quotations omitted).\\n\\n\\n\\n\\n 12\\n\\n Case: 14-10228 Document: 00515085664 Page: 13 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\\ncourt for failing to take the evidence and draw factual inferences in the non-\\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\\nemphasized that the requirement is no less binding “even when . . . a court\\ndecides only the clearly-established prong of the standard.” 36 Within the\\nlimited scope of our inquiry, review is de novo. 37\\n As instructed, we turn to the guidance provided by the Supreme Court\\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\\nan officer who had shot and killed a fugitive in a car chase. This court had\\ndecided that the officer violated the clearly established rule that deadly force\\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\\nsome threat of harm, but we had held the threat was not “sufficient.” The\\nSupreme Court reversed our decision. It found that the rule we articulated\\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\\nnot reasonably derive an applicable rule to govern his or her conduct in the\\nsituation. 41 Finding that we had defined the applicable rule with too much\\n\\n\\n\\n\\n 34 Lytle, 560 F.3d at 409.\\n 35 Tolan, 572 U.S. at 660.\\n 36 Id. at 657.\\n 37 Trent, 776 F.3d at 376.\\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\\n 39 Id. at 309.\\n 40 Id. at 309–10.\\n 41 Id.\\n\\n\\n\\n\\n 13\\n\\n Case: 14-10228 Document: 00515085664 Page: 14 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n“generality,” 42 the Court reversed our holding that the officer had violated\\nclearly established law. 43\\n Under Mullenix, application of clearly established law is undertaken\\nwith close attention to the relevant legal rule and the particular facts of the\\ncase. Here, based on the facts taken in the light most favorable to the non-\\nmovant Coles, and with reasonable inferences drawn in their favor, the district\\ncourt determined there were genuine factual disputes as to Ryan’s and the\\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\\npose an immediate threat to the officers” when they opened fire. 44 It held that\\n“on October 25, 2010, the date of the shooting, the law was clearly established”\\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\\nentire time at his own head and facing away from the officer, in an open\\noutdoor area, and who was unaware of the officer’s presence because no\\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\\ndetail, the officers ask us to consider a different set of facts, but we cannot do\\nso. We lack jurisdiction to reconsider the district court’s factual determinations\\non an appeal from denial of summary judgment on qualified immunity.\\n Tennessee v. Garner announced the principle that the use of deadly force\\nis permitted only to protect the life of the shooting officer or others: “Where the\\nsuspect poses no immediate threat to the officer and no threat to others, the\\nharm resulting from failing to apprehend him does not justify the use of deadly\\n\\n\\n\\n\\n 42 Id. at 311.\\n 43 Id. at 312.\\n 44 Cole, 68 F. Supp. 3d at 645.\\n 45 Id. at 643.\\n\\n\\n\\n\\n 14\\n\\n Case: 14-10228 Document: 00515085664 Page: 15 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nforce to do so.” 46 Garner also requires a warning before deadly force is used\\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\\nobvious cases, and this court has applied it in such cases, without dependence\\non the fact patterns of other cases. 48\\n The summary judgment facts, as determined by the district court, are\\nthat Ryan posed no threat to the officers or others to support firing without\\nwarning. The “Officers had the time and opportunity to give a warning and yet\\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\\nbeen facing him and pointing a gun at him.\\n This case is obvious when we accept the facts as we must. It is also\\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\\nthis stage—was unlawful. For in Baker, members of the public told Officer\\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\\nduring spring break, that “someone had entered the crowd with a pistol-\\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\\n\\n\\n\\n\\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\\n\\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\\n2012).\\n 49 Cole, 68 F. Supp. 3d at 645.\\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\\n\\n\\n\\n\\n 15\\n\\n Case: 14-10228 Document: 00515085664 Page: 16 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\\npeople directed the officer to a car in which the gunman was supposedly\\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\\n[Baker] took no threatening action . . . as the officer approached the truck,”\\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\\nparties did not dispute that Putnal had been searching for a gunman, and that\\na gun had been recovered from Baker’s seat, although they disputed whether\\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\\nIt was also undisputed that Baker was turning to face Putnal from his seat,\\nalthough medical reports indicated from “the nature of the wounds . . . that\\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\\nThe district court granted Putnal qualified immunity, crediting his account\\n\\n\\n\\n\\n 51 Id.\\n 52 Id. at 198.\\n 53 Id. at 193.\\n 54 Id.\\n 55 Id. at 198.\\n 56 Id.\\n 57 Id.\\n 58 Id.\\n 59 Id. at 193.\\n\\n\\n\\n\\n 16\\n\\n Case: 14-10228 Document: 00515085664 Page: 17 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthat he had fired in response to Baker turning and aiming the gun at him. 60\\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\\nposition of Baker’s gun, we found “simply too many factual issues to permit the\\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\\nreasons to find that [the officer’s] use of force was not excessive as a matter of\\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\\nto the nonmoving party,” we held that “[t]he number of shots and the nature\\nof the wounds raise . . . more of a question of fact than a court may dispose of\\non summary judgment.” 64\\n The Supreme Court’s more recent qualified immunity decisions do not\\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\\nresponded to a call that a woman was behaving erratically with a knife and\\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\\napproached to within “striking distance” of a bystander in the driveway. 66 One\\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\\n\\n\\n\\n\\n 60 Id. at 197.\\n 61 Id. at 198.\\n 62 Id.\\n 63 Id.\\n 64 Id. at 198–99.\\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\\n 66 Id.; id. at 1154.\\n\\n\\n\\n\\n 17\\n\\n Case: 14-10228 Document: 00515085664 Page: 18 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\\nHughes brought a Section 1983 excessive force claim against Kisela. 69\\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\\nrefusal to follow his repeated commands to drop the knife while within striking\\ndistance of the bystander—obstinance that heightened the risk of immediate\\nharm to another—the law did not clearly establish that the officer’s resort to\\ndeadly force was unlawful. 70\\n In this case, Officers Cassidy and Hunter found themselves in a search\\nfor a suicidal teenager who they knew had already encountered fellow officers\\nand walked away from them with his gun to his head, non-responsive, but\\nwithout aggressive action. The circumstances of the officers’ encounter with\\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\\nthe officers, whether and how he turned and aimed his gun, and whether\\nHunter warned Ryan to disarm himself. The district court here defined the\\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\\nviewing these disputes in a light most favorable to the Coles, concluded that a\\nreasonable jury could find that Ryan made no threatening or provocative\\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\\nthe district court concluded that a reasonable jury could find Cassidy and\\n\\n\\n\\n\\n 67 Id. at 1151.\\n 68 Id.\\n 69 Id.\\n 70 Id. at 1153.\\n\\n\\n 18\\n\\n Case: 14-10228 Document: 00515085664 Page: 19 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter opened fire upon Ryan without warning, even though it was feasible.\\nOn these facts, the officers’ conduct violates clearly established law.\\n Rather than engage on the facts as we must take them at the summary\\njudgment stage, the officers repeatedly argue from a different set of facts.\\nWhile the district court found that Ryan was initially facing away from the\\nofficers when they fired the first shot, the officers now describe his “armed turn\\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\\naimed at his own head and never pointed it at the officers, the officers now\\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\\nthen only momentarily turned back towards Ryan’s head at the moment he\\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\\npointed toward him—a story prosecutors accepted until a ballistics report\\nexposed its impossibility). And although the district court found that Ryan was\\nnot given an opportunity to disarm himself, the officers contend that he was\\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\\nargument to us as a full court, and in the teeth of those found by the district\\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\\nestablished law in 2010 put the officers’ response of firing in self-defense\\nbeyond the law.\\n The Coles and amicus Cato Institute are correct that it is beyond our\\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\\n“[I]f an excessive force claim turns on which of two conflicting stories best\\ncaptures what happened on the street,” the caselaw “will not permit summary\\n\\n\\n\\n\\n 19\\n\\n Case: 14-10228 Document: 00515085664 Page: 20 Date Filed: 08/21/2019\\n\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\\nWhereas the officers will have a chance to present their factual narrative—and\\nto question the Coles’—at trial, they cannot contest the facts in the current\\nappeal. 72\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3685,"cells":{"id":{"kind":"number","value":4654642,"string":"4,654,642"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Randy Cole v. Michael Hunter"},"decision_date":{"kind":"string","value":"2019-08-21"},"docket_number":{"kind":"string","value":"14-10228"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH, DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"type\": \"010combined\", \"text\": \"REVISED August 21, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 14-10228 August 20, 2019\\n Lyle W. Cayce\\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\\n\\n\\n Plaintiffs-Appellees\\nv.\\n\\nCARL CARSON,\\n\\n Defendant-Appellant\\n\\n ****************\\n\\n\\n No. 15-10045\\n\\n\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs-Appellees\\nv.\\n\\nMICHAEL HUNTER; MARTIN CASSIDY,\\n\\n Defendants-Appellants\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n _______________________\\n\\n ON PETITION FOR REHEARING EN BANC FOLLOWING\\n REMAND FROM THE UNITED STATES SUPREME COURT\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n\\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\\nOLDHAM, Circuit Judges.\\n\\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\\nJENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA\\nHAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA,\\nand KURT D. ENGELHARDT, Circuit Judges: 1\\n\\n The Supreme Court over several years has developed protection from\\ncivil liability for persons going about their tasks as government workers in the\\nform of immunity; not the absolute immunity enjoyed by prosecutors and\\njudges, but a qualified immunity. Today we again repair to issues inherent in\\nthe qualification. The doctrine protects at the earliest stage of litigation at\\nwhich the defense’s application is determinable. To that end, courts have\\ndeveloped procedures and pretrial practices, including appellate review of\\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\\nanswer under Rule 7(a) on order of the district court, particularized to address\\nthe defense of immunity in a motion to dismiss or for summary judgment.\\nWhen those processes do not yield pretrial resolution, as with competing\\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\\nfirst point at which its application is determinable. And in obeisance to\\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\\na jury—long a bastion interposed between the state and person, and assured\\nby the Founders. And it signifies that today the district judge has multiple\\n\\n\\n\\n\\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\\nparticipating as members of the original panel.\\n\\n 2\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nways to present fully the claims and defenses to a jury to ensure the\\ngovernment worker a full draw upon his immunity defense, 2 including\\nresolution of the competing factual narratives, one of which—or a meld of\\nboth—may foreclose liability. 3\\n In this case, police officers from Sachse, Texas argue that the district\\ncourt should have sustained their defense of qualified immunity on their\\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\\nwhat happened. The officers filed dispositive pretrial motions in the district\\ncourt, asserting the defense of qualified immunity. The district court denied\\nthese motions, concluding that immunity could not be determined at this stage\\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\\n\\n\\n\\n\\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\\n 3 In any treatment of the jury’s role in stepping between state-afforded process\\n\\nand an individual defendant, it bears emphasis that the district judge can impanel a\\njury of at least six and as many as twelve members whose verdict, absent the parties’\\nagreement otherwise, must be unanimous.\\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\\n\\nHunter v. Cole, 137 S. Ct. 497 (2016).\\n\\n\\n 3\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\\nthe denial of summary judgment as to the excessive-force claim. Because the\\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\\nlight of Mullenix.\\n We conclude that it will be for a jury, and not judges, to resolve the\\ncompeting factual narratives as detailed in the district court opinion and the\\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims based on qualified\\nimmunity; and return the case to the district court for trial and resolution of\\nissues consistent with this opinion.\\n I\\n A.\\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\\nDepartment called available units to the neighboring town of Garland, Texas.\\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\\n\\n\\n\\n\\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\\ncuriam)).\\n\\n 4\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nreported to be walking in the neighborhood with a handgun. Officer Michael\\nHunter responded by proceeding immediately to the Garland neighborhood. In\\na statement given on the day of the incident, Hunter related that on arriving\\nin the neighborhood, he overheard a civilian stating that Ryan had given up\\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\\nkeep his handgun. Hunter searched the area, and saw two officers following\\nRyan, who was walking away from them holding his gun to his head,\\napproaching a wooded area along Highway 78. Although told by officers that\\nthings were under control, Hunter volunteered to go behind the wooded area\\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\\nalso present, join him.\\n Four years later, after this litigation had commenced, Hunter for the first\\ntime recalled that the civilian he had overheard had described an altercation\\nwith Ryan in which Ryan had threatened him. He also then for the first time\\nrecalled hearing police-radio transmissions indicating that officers were\\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\\na risk of serious harm to a great many innocent in the vicinity.” Hunter\\notherwise learned nothing “that would cause [him] to believe [Ryan] was\\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\\nand, four years after the incident, he also raised the possibility that Ryan was\\nusing suicide as a pretext to evade the police.\\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\\ninformation. On the day of the incident, Cassidy swore that he learned “this\\n\\n\\n\\n\\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\\n\\n 5\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nsubject had shown up at [a] residence with a handgun and had just recently\\nbeen seen walking away.” But, four years later, after this litigation had\\ncommenced, like Hunter, Cassidy remembered learning more, including that\\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\\nan order to drop his weapon; and might be headed for Sachse High School “to\\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\\nHighway 78.\\n The three officers separately arrived at the side of Highway 78 at around\\nthe same time. Hunter parked his motorbike and drew his duty weapon;\\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\\nThe officers started walking along the tree line. A steep embankment rose from\\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\\nembankment to approach the tree line. Cassidy and Hunter used both the edge\\nof the embankment and the vegetation to conceal themselves as they walked.\\nHunter also removed his white motorcycle helmet in order to be less\\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\\nascending to the tree line. Hunter heard movement in the brush, and signaled\\nto his colleagues.\\n What occurred next is disputed. Viewing the summary judgment\\nevidence and drawing reasonable inferences in the light most favorable to the\\nnon-movant Coles, the district court determined that a reasonable jury could\\nfind the following: Ryan backed out from the tree line in front of Hunter and\\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\\n\\n\\n\\n\\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\\nin a light most favorable to the Coles, the district court relied on the physical and\\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\\n\\n\\n 6\\n\\n No. 14-10228 c/w No. 15-10045\\n\\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\\nat the Officers,” 9 and “never made a threatening or provocative gesture\\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\\nnot know that.\\n Following the shooting, the three officers remained together at the scene.\\nThe Coles allege that during this time the officers conspired to insulate Cassidy\\nand Hunter from liability with a fabricated narrative in which Ryan was facing\\nHunter and pointed his weapon at the officer, at which point Cassidy and\\n\\n\\n\\n\\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\\nhave been aware of the presence of the police officers prior to the time he was shot.”\\n 8 Cole, 68 F. Supp. 3d at 644.\\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\\n\\nargument that Cole did not know of the Officers’ presence.”).\\n 10 Cole, 68 F. Supp. 3d at 645–46.\\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\\n\\nduring which they could have called out to Cole, sufficient time to make a warning\\naccording to Cole’s expert.\\n 12 Cole, 68 F. Supp. 3d at 645.\\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\\n 14 Id. at 644.\\n 15 Cole, 68 F. Supp. 3d at 644.\\n 16 Id.\\n\\n\\n 7\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\\nDepartment arrived and took control of the scene, but did not follow the\\nstandard procedure of separating witnesses to ensure independent\\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\\npolice station together. Later that day, the officers provided statements to\\ninvestigators. Hunter stated that he had no chance to issue a command to\\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\\nstated that Ryan then turned towards Hunter and pointed his handgun at\\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\\ndefensively. 17\\n The Dallas County District Attorney presented the officers’ narrative to\\na grand jury, which no-billed the officers and charged Ryan with felony\\naggravated assault of a public servant. As a result of the charge, Ryan,\\nincapacitated in intensive care, was placed under house arrest. About a month\\nafter the indictment, investigators received a ballistics report from the crime\\nlab. The ballistics analysis, taken together with stippling observed around\\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\\n Ryan suffered permanent injuries, including cognitive impairment,\\npartial paralysis, and other serious mental and physical disabilities.\\n\\n\\n\\n\\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\\nhis line of sight.\\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\\n\\nreleased immediately around a discharging firearm.\\n\\n 8\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The Coles brought, inter alia, four Section 1983 claims against the\\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\\nagainst the use of excessive force arising from the shooting. Second, the Coles\\nallege a violation of Ryan’s Fourteenth Amendment right against the\\nimposition of false charges arising from the fabrication of evidence. Third, they\\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\\nviolation arising from the fabrication of evidence. The officers filed a motion to\\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\\ndefenses. The district court denied the motion in a January 2014 Memorandum\\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\\nqualified immunity defenses to the excessive-force claim. With that discovery\\ncomplete, the two officers moved for summary judgment, rearguing qualified\\nimmunity. The district court denied their motion and Cassidy and Hunter\\nappealed.\\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\\ncourt affirmed the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\\n\\n\\n\\n\\n 19 The Coles filed an initial complaint in September 2012. The officers moved\\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\\nreply to the immunity defense. The district court then afforded the Coles opportunity\\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\\nThe officers then filed a second motion to dismiss.\\n\\n 9\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nFourteenth Amendment false-charge claim, and reversed the denial as to the\\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\\nthe qualified immunity defense applicable for these claims. The officers\\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\\nSupreme Court granted certiorari, vacated the panel’s judgment, and\\nremanded the case for further consideration in light of Mullenix v. Luna, 20\\ndecided in the intervening time. 21\\n On remand from the Supreme Court, recognizing that its jurisdiction\\nwas limited to determining the materiality of factual disputes that the district\\ncourt determined were genuine, the panel once again held that the\\napplicability of qualified immunity for Cassidy and Hunter could not be\\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\\nremand order reached no further, the panel reinstated the Cole I opinion on\\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\\nrehearing en banc, which we granted. 24\\n\\n\\n\\n\\n 20 136 S. Ct. 305 (2015).\\n 21 As this court and others have acknowledged, when the Supreme Court\\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\\n\\n378, 379 (5th Cir. 2019).\\n 23 Id. at 341–42.\\n 24 Cole, 915 F.3d at 379.\\n\\n\\n\\n\\n 10\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II\\n A.\\n We hear this case on remand from the Court for further consideration in\\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\\nimposition of false charges. 26 Second, finding qualified immunity applicable,\\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\\nqualified immunity applicable, we reverse the denial of the motion to dismiss\\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\\nviolation. 28\\n\\n\\n\\n\\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\\ndetention can violate the Fourth Amendment not only when it precedes, but also\\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\\n“Manuel does not address the availability of due process challenges after a legal\\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\\n 26 See Cole I, 802 F.3d at 766–74.\\n 27 See id. at 764–65.\\n 28 See id. at 765.\\n\\n\\n\\n\\n 11\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The qualified immunity inquiry includes two parts. In the first we ask\\nwhether the officer’s alleged conduct has violated a federal right; in the second\\nwe ask whether the right in question was “clearly established” at the time of\\nthe alleged violation, such that the officer was on notice of the unlawfulness of\\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\\nviolation, or if the conduct did not violate law clearly established at the time. 30\\n On an appeal of a denial of summary judgment on the basis of qualified\\nimmunity, our jurisdiction is limited to examining the materiality of factual\\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\\nappeal we cannot challenge the district court’s assessments regarding the\\nsufficiency of the evidence—that is, the question whether there is enough\\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\\nlack jurisdiction to resolve the genuineness of any factual disputes” and\\n“consider only whether the district court erred in assessing the legal\\nsignificance of the conduct that the district court deemed sufficiently supported\\nfor purposes of summary judgment.” 33 Like the district court, we must view\\nthe facts and draw reasonable inferences in the light most favorable to the\\nplaintiff and ask whether the defendant would be entitled to qualified\\n\\n\\n\\n\\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\\n 30 Id.\\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\\n\\nthe determination of qualified immunity would require the resolution of a genuinely\\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\\n\\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\\n 33 Id. (internal quotations omitted).\\n\\n\\n\\n\\n 12\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\\ncourt for failing to take the evidence and draw factual inferences in the non-\\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\\nemphasized that the requirement is no less binding “even when . . . a court\\ndecides only the clearly-established prong of the standard.” 36 Within the\\nlimited scope of our inquiry, review is de novo. 37\\n As instructed, we turn to the guidance provided by the Supreme Court\\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\\nan officer who had shot and killed a fugitive in a car chase. This court had\\ndecided that the officer violated the clearly established rule that deadly force\\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\\nsome threat of harm, but we had held the threat was not “sufficient.” The\\nSupreme Court reversed our decision. It found that the rule we articulated\\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\\nnot reasonably derive an applicable rule to govern his or her conduct in the\\nsituation. 41 Finding that we had defined the applicable rule with too much\\n\\n\\n\\n\\n 34 Lytle, 560 F.3d at 409.\\n 35 Tolan, 572 U.S. at 660.\\n 36 Id. at 657.\\n 37 Trent, 776 F.3d at 376.\\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\\n 39 Id. at 309.\\n 40 Id. at 309–10.\\n 41 Id.\\n\\n\\n\\n\\n 13\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n“generality,” 42 the Court reversed our holding that the officer had violated\\nclearly established law. 43\\n Under Mullenix, application of clearly established law is undertaken\\nwith close attention to the relevant legal rule and the particular facts of the\\ncase. Here, based on the facts taken in the light most favorable to the non-\\nmovant Coles, and with reasonable inferences drawn in their favor, the district\\ncourt determined there were genuine factual disputes as to Ryan’s and the\\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\\npose an immediate threat to the officers” when they opened fire. 44 It held that\\n“on October 25, 2010, the date of the shooting, the law was clearly established”\\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\\nentire time at his own head and facing away from the officer, in an open\\noutdoor area, and who was unaware of the officer’s presence because no\\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\\ndetail, the officers ask us to consider a different set of facts, but we cannot do\\nso. We lack jurisdiction to reconsider the district court’s factual determinations\\non an appeal from denial of summary judgment on qualified immunity.\\n Tennessee v. Garner announced the principle that the use of deadly force\\nis permitted only to protect the life of the shooting officer or others: “Where the\\nsuspect poses no immediate threat to the officer and no threat to others, the\\nharm resulting from failing to apprehend him does not justify the use of deadly\\n\\n\\n\\n\\n 42 Id. at 311.\\n 43 Id. at 312.\\n 44 Cole, 68 F. Supp. 3d at 645.\\n 45 Id. at 643.\\n\\n\\n\\n\\n 14\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nforce to do so.” 46 Garner also requires a warning before deadly force is used\\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\\nobvious cases, and this court has applied it in such cases, without dependence\\non the fact patterns of other cases. 48\\n The summary judgment facts, as determined by the district court, are\\nthat Ryan posed no threat to the officers or others to support firing without\\nwarning. The “Officers had the time and opportunity to give a warning and yet\\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\\nbeen facing him and pointing a gun at him.\\n This case is obvious when we accept the facts as we must. It is also\\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\\nthis stage—was unlawful. For in Baker, members of the public told Officer\\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\\nduring spring break, that “someone had entered the crowd with a pistol-\\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\\n\\n\\n\\n\\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\\n\\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\\n2012).\\n 49 Cole, 68 F. Supp. 3d at 645.\\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\\n\\n\\n\\n\\n 15\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\\npeople directed the officer to a car in which the gunman was supposedly\\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\\n[Baker] took no threatening action . . . as the officer approached the truck,”\\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\\nparties did not dispute that Putnal had been searching for a gunman, and that\\na gun had been recovered from Baker’s seat, although they disputed whether\\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\\nIt was also undisputed that Baker was turning to face Putnal from his seat,\\nalthough medical reports indicated from “the nature of the wounds . . . that\\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\\nThe district court granted Putnal qualified immunity, crediting his account\\n\\n\\n\\n\\n 51 Id.\\n 52 Id. at 198.\\n 53 Id. at 193.\\n 54 Id.\\n 55 Id. at 198.\\n 56 Id.\\n 57 Id.\\n 58 Id.\\n 59 Id. at 193.\\n\\n\\n\\n\\n 16\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthat he had fired in response to Baker turning and aiming the gun at him. 60\\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\\nposition of Baker’s gun, we found “simply too many factual issues to permit the\\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\\nreasons to find that [the officer’s] use of force was not excessive as a matter of\\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\\nto the nonmoving party,” we held that “[t]he number of shots and the nature\\nof the wounds raise . . . more of a question of fact than a court may dispose of\\non summary judgment.” 64\\n The Supreme Court’s more recent qualified immunity decisions do not\\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\\nresponded to a call that a woman was behaving erratically with a knife and\\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\\napproached to within “striking distance” of a bystander in the driveway. 66 One\\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\\n\\n\\n\\n\\n 60 Id. at 197.\\n 61 Id. at 198.\\n 62 Id.\\n 63 Id.\\n 64 Id. at 198–99.\\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\\n 66 Id.; id. at 1154.\\n\\n\\n\\n\\n 17\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\\nHughes brought a Section 1983 excessive force claim against Kisela. 69\\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\\nrefusal to follow his repeated commands to drop the knife while within striking\\ndistance of the bystander—obstinance that heightened the risk of immediate\\nharm to another—the law did not clearly establish that the officer’s resort to\\ndeadly force was unlawful. 70\\n In this case, Officers Cassidy and Hunter found themselves in a search\\nfor a suicidal teenager who they knew had already encountered fellow officers\\nand walked away from them with his gun to his head, non-responsive, but\\nwithout aggressive action. The circumstances of the officers’ encounter with\\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\\nthe officers, whether and how he turned and aimed his gun, and whether\\nHunter warned Ryan to disarm himself. The district court here defined the\\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\\nviewing these disputes in a light most favorable to the Coles, concluded that a\\nreasonable jury could find that Ryan made no threatening or provocative\\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\\nthe district court concluded that a reasonable jury could find Cassidy and\\n\\n\\n\\n\\n 67 Id. at 1151.\\n 68 Id.\\n 69 Id.\\n 70 Id. at 1153.\\n\\n\\n 18\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter opened fire upon Ryan without warning, even though it was feasible.\\nOn these facts, the officers’ conduct violates clearly established law.\\n Rather than engage on the facts as we must take them at the summary\\njudgment stage, the officers repeatedly argue from a different set of facts.\\nWhile the district court found that Ryan was initially facing away from the\\nofficers when they fired the first shot, the officers now describe his “armed turn\\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\\naimed at his own head and never pointed it at the officers, the officers now\\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\\nthen only momentarily turned back towards Ryan’s head at the moment he\\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\\npointed toward him—a story prosecutors accepted until a ballistics report\\nexposed its impossibility). And although the district court found that Ryan was\\nnot given an opportunity to disarm himself, the officers contend that he was\\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\\nargument to us as a full court, and in the teeth of those found by the district\\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\\nestablished law in 2010 put the officers’ response of firing in self-defense\\nbeyond the law.\\n The Coles and amicus Cato Institute are correct that it is beyond our\\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\\n“[I]f an excessive force claim turns on which of two conflicting stories best\\ncaptures what happened on the street,” the caselaw “will not permit summary\\n\\n\\n\\n\\n 19\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\\nWhereas the officers will have a chance to present their factual narrative—and\\nto question the Coles’—at trial, they cannot contest the facts in the current\\nappeal. 72\", \"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART\"}, {\"type\": \"dissent\", \"author\": \"The\", \"text\": \"The dissents also take issue with the disputed facts. Judge Duncan\\nfocuses on what he terms “undisputed pre-encounter events.” But, particularly\\nin light of the officers’ evolving stories, it is disputed whether any of the events\\nrecounted were known to Hunter or Cassidy when they fired on Ryan. The\\ndissent cites to the reports and affidavits of other officers and individuals to\\ndescribe the events occurring before Hunter and Cassidy were called to the\\nscene. 73 But looking at the evidence in the light most favorable to the Coles,\\nHunter and Cassidy were not aware of the disturbance at the Coles’ house the\\nprevious night, the alleged cache of weapons left at the Reeds’ house, Ryan’s\\nalleged suicidal threat, or his threat to shoot anyone who came near him.\\n And of course, what matters is what the defendant officers knew when\\nthey shot Ryan. See, e.g., White v. Pauly, 137 S. Ct. 548, 550 (2017) (per curiam)\\n(“Because this case concerns the defense of qualified immunity . . . the Court\\n\\n\\n\\n\\n 71 Saucier v. Katz, 533 U.S. 194, 216 (2001) (Ginsburg, J. concurring). see also\\nTolan, 572 U.S. at 660; id. at 662 (Alito, J., joined by Scalia, J., concurring in the\\njudgment) (agreeing that “summary judgment should not have been granted” in that\\ncase because of the genuine issues of material fact); Lytle, 560 F.3d at 408–09.\\n 72 Cf. Tolan, 572 U.S. at 660 (“The witnesses on both sides come to this case\\n\\nwith their own perceptions, recollections, and even potential biases. It is in part for\\nthat reason that genuine disputes are generally resolved by juries in our adversarial\\nsystem. By weighing the evidence and reaching factual inferences contrary to [the\\nplaintiff’s] competent evidence, the court below neglected to adhere to the\\nfundamental principle that at the summary judgment stage, reasonable inferences\\nshould be drawn in favor of the nonmoving party.”).\\n 73 Recall that Hunter was a late-arriving officer who was not instructed by the\\n\\nSachse or Garland police departments to pursue Ryan. See supra at 4.\\n\\n 20\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nconsiders only the facts that were knowable to the defendant officers.”);\\nKingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015) (stressing that “a court\\nmust judge the reasonableness of the force used from the perspective and with\\nthe knowledge of the defendant officer”). The dissents overlook the\\nfundamental reason most of these facts should not be part of the analysis: we\\nconsider only what the officers knew at the time of their challenged conduct.\\n“Facts an officer learns after the incident ends—whether those facts would\\nsupport granting immunity or denying it—are not relevant.” Hernandez v.\\nMesa, 137 S. Ct. 2003, 2007 (2017) (per curiam); see also Brown v. Callahan,\\n623 F.3d 249, 253 (“An official’s actions must be judged in light of the\\ncircumstances that confronted him, without the benefit of hindsight.” (citing\\nGraham v. Connor, 490 U.S. 386, 396–97 (1989))). Despite the many “red flags”\\nlisted by the dissents as known to others, only those known to Hunter and\\nCassidy are relevant to the qualified immunity analysis.\\n Judge Jones’s dissent fares no better in addressing some of the key facts\\nof the shooting itself. Contrary to its assertion, the district court found that\\nRyan was facing at a 90-degree angle away from the officers when he was first\\nshot. Cole, 68 F. Supp. 3d at 644. As for the “warning,” the district court found\\nthat a reasonable jury could conclude that Ryan “was not given an opportunity\\nto disarm himself before he was shot.” Id. Relitigating the district court’s\\nassessment of factual disputes is not our role on interlocutory review.\\n What Hunter and Cassidy knew before shooting at Ryan, whether they\\nwarned him before doing so, and what actions Ryan took before being shot are\\nall disputed. The district court must afford Cassidy and Hunter qualified\\nimmunity at the earliest point the defense’s applicability is determinable.\\nHere, we have not yet reached that point. It will be for a jury to resolve what\\n\\n\\n\\n\\n 21\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhappened on October 25, 2010. The district court did not err in denying the\\nofficers qualified immunity at the summary judgment stage.\\n III\\n The district court determined that genuine disputes of fact regarding\\nCassidy’s and Hunter’s entitlement to qualified immunity remain. We\\nAFFIRM the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim and DISMISS Cassidy and Hunter’s appeal; AFFIRM\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-\\ncharges claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims; and return the case to\\nthe district court for trial and resolution of issues consistent with this opinion.\\n\\n\\n\\n\\n 22\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nJENNIFER WALKER ELROD, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and EDITH BROWN CLEMENT, CATHARINA HAYNES,\\nSTEPHEN A. HIGGINSON, GREGG COSTA, and KURT D. ENGELHARDT,\"}, {\"author\": \"Circuit Judges, concurring\", \"type\": \"concurrence\", \"text\": \"Circuit Judges, concurring:\\n\\n\\n I concur fully in the majority opinion. Despite the outcry of the\\ndissenting opinions, there is no new law being made or old law being ignored.\\nThe majority opinion takes no position on the public policy issues of the day\\nregarding policing and the mentally ill. Rather, it follows the longstanding en\\nbanc rule that “we lack jurisdiction to review the genuineness of a fact issue”\\non an interlocutory appeal of a denial of summary judgment based on qualified\\nimmunity. Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc)\\n(quoting Allen v. Cisneros, 815 F.3d 239, 244 (5th Cir. 2016)); Kinney v. Weaver,\\n367 F.3d 337, 341, 346–47 (5th Cir. 2004) (en banc). As the able district court\\ndetermined, the facts are very much in dispute.\\n\\n\\n\\n\\n 23\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nEDITH H. JONES, Circuit Judge, joined by SMITH, OWEN, HO, DUNCAN\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431895/\", \"author_raw\": \"Circuit Judges, concurring\"}, {\"author\": \"and OLDHAM, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"and OLDHAM, Circuit Judges, dissenting:\\n\\n\\n What “clearly established law” says that only a rogue cop would have\\nshot at this mentally disturbed teenager within 3 to 5 seconds as the teen\\nemerged from dense bushes ten to twenty feet away from Officer Hunter and,\\nwith his finger on the trigger of a loaded pistol pointed in the direction of his\\nown head, began turning in the officer’s direction? The majority state this is\\nan “obvious case” for the denial of qualified immunity: the officers could not\\nshoot without first announcing themselves to Cole or looking down the barrel\\nof his gun. What is so obvious? Contrary to the majority’s dangerously\\nunrealistic proposition, “action beats reaction” every time. Ontiveros v. City of\\nRosenberg, 564 F.3d 379, 384 (5th Cir. 2009). Neither we nor the Supreme\\nCourt has ever held that police officers confronted in close quarters with a\\nsuspect armed and ready to shoot must hope they are faster on the draw and\\nmore accurate. The increasingly risky profession of law enforcement cannot\\nput those sworn to “serve and protect” to a Hobson’s choice: place their lives on\\nthe line by heroic forbearance or risk their financial security in defense of\\nlawsuits. The Supreme Court has repeatedly stated in plain terms that the\\npurpose of qualified immunity is to prevent precisely this quandary.\\n Respectfully dissenting, we are convinced that the Supreme Court’s\\nremand from the original panel opinion denying immunity meant something;\\nthe governing Supreme Court law is foursquare in the corner of\\n\\n\\n\\n\\n 24\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nOfficers Hunter and Cassidy; and they were entitled to receive summary\\njudgment confirming their immunity from suit, not simply from liability. 1\\n I. Background\\n A. Undisputed facts\\n The majority opinion paints a picture of the relevant facts that has\\nevolved considerably from the first and second panel opinions to this final\\nmajority version. Compare Cole v. Carson, 802 F.3d 752, 755-56, 758 (5th Cir.\\n2015), vacated sub nom. Hunter v. Cole, 137 S. Ct. 497 (Cole I), with Cole v.\\nCarson, 905 F.3d 334, 337-340 (5th Cir. 2018) (Cole II), and supra. Qualified\\nimmunity for the use of deadly force is assessed at the moment a law\\nenforcement officer confronts a suspect, Graham v. Connor, 490 U.S. 386, 397,\\n109 S. Ct. 1865, 1872 (1989), but the officer’s understanding of facts leading up\\nto the event color the question whether “a reasonable officer” could have\\nbelieved his life or the lives of others were endangered. White v. Pauly,\\n137 S. Ct. 548, 550, 552 (2017). To the majority’s picture, it is necessary to add\\nundisputed facts recited in the prior opinions and undisputed evidence from\\nplaintiffs’ experts. Hornbook summary judgment law holds that although\\ndisputed facts are viewed in the light most favorable to non-movants, the entire\\nrecord must be considered. Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769,\\n1776 (2007). Further, this court reviews de novo the materiality of the relevant\\nfacts. Foley v. Univ. of Houston, Sys., 355 F.3d 333, 337 (5th Cir. 2003).\\n\\n\\n\\n\\n 1 We do not challenge the majority’s decision to leave in place fabricated evidence\\ncharges against these two officers and Officer Carson. Only Carson, who was present at the\\nencounter but did not shoot, appealed the district court’s refusal to dismiss that claim. The\\nSupreme Court has not been clear on the constitutional basis for such a claim, so we have no\\nground to criticize the majority. Compare Manuel v. City of Joliet, 137 S. Ct. 911 (2017), with\\nMcDonough v. Smith, 139 S. Ct. 2149 (2019), (refusing to rule on the constitutional grounding\\nof such claims).\\n\\n 25\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n First, both officers who shot at Cole were aware that he had mental\\nissues. Officer Cassidy had learned that Cole “had threatened to shoot anyone\\nwho tried to take his gun and had refused an order to drop his weapon.” Cole\\nII, 905 F.3d at 338. Officer Hunter watched Cole walk steadily down the train\\ntracks ignoring other police who were yelling at him to stop and put down his\\n9 mm semi-automatic pistol. Both officers were aware that a bulletin had been\\ndisseminated about Cole to all law enforcement in Garland and Sachse, and\\nthree nearby schools in the vicinity of Highway 78, where Cole was heading,\\nwere being protected. Cole II, 905 F.3d at 337-38.\\n Second, Cole emerged from the vegetation, unaware of the officers’\\npresence, within ten to twenty feet of Officer Hunter, and as he turned toward\\nthe officers, three to five seconds elapsed. That’s less time than it takes to read\\nthe preceding sentence. Cole initially stood at a 90 degree angle to the police\\nand then began turning counterclockwise toward them. His movement is\\nconceded by plaintiffs’ expert, supported by the ballistic evidence, and\\nrecounted in the district court opinion. Cole II, 905 F.3d at 338 (“Cole began\\nto turn counterclockwise.”). Plaintiff’s expert opines this interval was\\nsufficient for the officers to command Cole to disarm and observe his reaction.\\n Third, his loaded pistol was pointed within thirty inches toward his head,\\nCole I, 802 F.3d at 756, and Cole’s finger was on the trigger.\\n Next, the officers fired seven shots, two of which hit Cole.\\nOfficer Hunter’s first shot hit Cole in the left arm, penetrating his body from\\nthe left. Another of Hunter’s shots merely grazed Cole’s left arm as he\\ncontinued to turn and was facing Hunter. Cole II, 905 F.3d at 339. Cole’s gun,\\naccording to the plaintiffs, involuntarily discharged and hit him in the head,\\n“leaving stippling—gunpowder residue around the wound due to the gun being\\nfired from less than thirty inches away.” Cole I, 802 F.3d at 756.\\n\\n\\n 26\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Finally, the bodycam evidence shows that some officer began to issue a\\nwarning at about the time the shooting started. Cole II, 905 F.3d at 338.\\n B. Prior panel reasoning\\n The district court denied qualified immunity to Hunter and Cassidy for\\nthe shooting 2 and refused to dismiss the allegations of falsified evidence\\nagainst Hunter, Cassidy, and Carson.\\n The original panel opinion affirmed, 3 concluding as to the excessive force\\nallegation that “if the Coles’ version of the evidence is believed, it was not\\nobjectively reasonable to use deadly force against Ryan Cole when the teenager\\nemerged on foot from the wooded area with a gun to his own head and turned\\nleft.” With regard to immunity, the panel held that by October 2010,\\n“reasonable officers were on notice that they could not lawfully use deadly force\\nto stop a fleeing person who did not pose a severe and immediate risk to the\\nofficers or others, and they had many examples of the sorts of threatening\\nactions which could justify deadly force. Turning left while unaware of an\\nofficer’s presence is not among them.” Cole I, 802 F.3d at 762 (emphasis added)\\n(footnote omitted). The panel’s principal support for its legal reasoning was\\nLuna v. Mullenix, 773 F.3d 712 (5th Cir. 2014), rev’d sub nom. Mullenix v.\\nLuna, 136 S. Ct. 305 (2015). According to the panel, “the central [disputed]\\nissue” is “whether Ryan pointed his gun at Officer Hunter.” Cole I, 802 F.3d\\n\\n\\n\\n\\n Query why Officer Cassidy, whose shots didn’t hit the victim, can be sued? This\\n 2\\n\\ncourt has held that qualified immunity must be applied individually to each defendant.\\nMeadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007). But no one raised the point here.\\n\\n The correct disposition if this court agrees there are material fact issues in dispute\\n 3\\n\\nregarding qualified immunity would be to dismiss the appeal, because our appellate\\njurisdiction exists only over questions of law. Mitchell v. Forsyth, 472 U.S. 511, 529-30,\\n105 S. Ct. 2806, 2816-17 (1985).\\n\\n 27\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nat 762. Absent such a threatening gesture, Cole was said to present no\\nsufficient threat. Id.\\n The next panel opinion was formulated after the Supreme Court\\nreversed us in Mullenix on the grounds that “none of our [the Supreme Court’s\\nown] precedents ‘squarely governs’ the facts here. Given [the suspect’s]\\nconduct, we cannot say that only someone ‘plainly incompetent’ or who\\n‘knowingly violate[s] the law’ would have perceived a sufficient threat and\\nacted as [the officer] did.” 136 S. Ct. at 310. On this second go-round, the panel\\nconceded the deficiency of the “no sufficient threat” rule, but then concluded\\nthat, taken in the light most favorable to the plaintiffs, Cole’s conduct posed\\n“no threat” when he was shot, Cole II, 905 F.3d at 343, and the officers\\ntherefore violated a clearly established “no threat” rule. Tennessee v. Garner\\nis cited as the basis for this “bright line” rule. 4 471 U.S. 1, 105 S. Ct. 1694\\n(1985). This opinion was vacated by a vote to reconsider the case en banc.\\n C. The Current Majority Opinion\\n Pivoting yet again, the en banc majority opinion commences with a\\npaean to “the worker’s . . . right to the protection of a jury,” not even bothering\\nto cite Supreme Court authorities that explain why qualified immunity is\\nimmunity from suit, not just liability. The majority opinion omits or ignores\\nmaterial undisputed facts recited above—the knowledge of the officers, Cole’s\\nturning toward them, the significance of his finger in a loaded pistol, and the\\n\\n\\n\\n\\n 4The panel curiously described so-called clearly established law in both of its opinions\\nwith references to unpublished, non-precedential Fifth Circuit cases. The Supreme Court\\nhas expressed uncertainty over whether any circuit court cases, as opposed to its own\\ndecisions, may set out “clearly established law.” See Dist. of Columbia v. Wesby, 138 S. Ct.\\n577, 591 n. 8 (2018); Carroll v. Carman, 135 S. Ct. 348, 350 (2014); Reichle v. Howards,\\n566 U.S. 658, 665-66, 132 S. Ct. 2088, 2094 (2012). It is incredible that this court would cite\\nour avowedly non-precedential decisions for that purpose.\\n\\n 28\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthree to five second interval—and hides behind the assertion that, relevant to\\nqualified immunity, there are “genuine factual disputes as to Ryan’s and the\\nofficers’ conduct” such that a reasonable jury could find that Cole posed no\\n“immediate threat” to the officers or others. Two paragraphs later, asserting\\nthat Cole posed “no threat . . . to support firing without warning,” the majority\\ndeem this an “obvious case” for denial of immunity, because the “officers had\\ntime and opportunity to give a warning and yet chose to shoot first instead.”\\nThe “obvious case” rationale again derives, in the majority’s view, from Garner,\\nfortified only by one Fifth Circuit case and the Supreme Court’s decision in\\nKisela v Hughes. 5\\n DISCUSSION\\n The only legal question that needs to be addressed by this court is\\nwhether, under the circumstances of this five-second confrontation, every\\nreasonable police officer would have reasonably perceived no life-threatening\\ndanger such that deadly force could be used to incapacitate Cole without a\\npreliminary warning. Put otherwise, as a matter of law, was it clearly\\nestablished that officers may not fire on a suspect, armed and ready to shoot a\\npistol, who is turning in their direction with one of their brethren ten to twenty\\nfeet away, unless the gun barrel points at them or they first shout a warning\\nand await his response?\\n The majority deny qualified immunity, seeming to answer on the basis\\nof “disputed fact issues” that Cole posed “no threat.” The majority’s reasoning\\n\\n\\n\\n\\n 5 This dissent focuses on the majority opinion because Appellees’ briefing offered\\nnothing in addition to the meager authorities cited by the majority to support their “clearly\\nestablished law” theory.\\n\\n\\n\\n\\n 29\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nis at too high a level of generality. And the majority ignore the critical criterion\\nfor qualified immunity in Fourth Amendment cases: the reasonableness of the\\nofficers’ reasonable perceptions. In sum, the majority here double down on the\\nmistakes that got our court reversed in Mullenix. 6\\n Before discussing these problems in detail, it is necessary to recapitulate\\nthe reasoning behind the Supreme Court’s qualified immunity cases. The\\nmajority’s bare mention of the standards for qualified immunity ignores the\\nCourt’s rationale for the defense. Beginning with Monroe v. Pape in 1961, the\\nSupreme Court unleashed federal courts to enforce constitutional commands\\nagainst state actors pursuant to 42 U.S.C. § 1983. See Monroe v. Pape,\\n365 U.S. 167, 187, 81 S. Ct. 473, 484 (1961). A foreseeable consequence of\\nfacilitating such lawsuits was that a deluge of litigation would follow, at least\\nsome of it ill-founded or frivolous. What was to be done to limit claims to those\\nthat might have merit? The Court decided in Pierson v. Ray that police officers\\nsued under Section 1983 should enjoy qualified immunity accorded at common\\nlaw. 386 U.S. 547, 556-57, 87 S. Ct. 1213, 1219 (1967).\\n For over fifty years, the Court has developed the standards of qualified\\nimmunity, well aware from the beginning that “the local police officer” is “that\\nsegment of the executive branch . . . that is most frequently and intimately\\ninvolved in day-to-day contacts with the citizenry, and hence, most frequently\\nexposed to situations which can give rise to claims under Sec. 1983 . . . .”\\nScheuer v. Rhodes, 416 U.S. 232, 244-45, 94 S. Ct. 1683, 1691-92 (1974). The\\n\\n\\n\\n\\n 6 In Mullenix, the Supreme Court reversed this court and held an officer entitled as a\\nmatter of law to qualified immunity when he shot, and killed, a suspect fleeing from the police\\nin his car at high speed. Following Mullenix, the Supreme Court vacated the judgment and\\nremanded Cole I, no doubt in part because Cole I heavily relied on the reversed panel decision\\nin Mullenix.\\n\\n 30\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nbreadth of this shield represents a deliberate balance between affording a\\ndamages remedy for constitutional abuses and the social and personal costs\\ninflicted by meritless claims. Anderson v. Creighton, 483 U.S. 635, 638,\\n107 S. Ct. 3034, 3038 (1987). The costs to society include the costs of litigation,\\nthe diversion of limited public resources, the deterrence of able people from\\ngoing into public service, and the danger that fear of being sued will discourage\\nofficials from vigorously performing their jobs. Id.; Harlow v. Fitzgerald,\\n457 U.S. 800, 814, 102 S. Ct. 2727, 2736 (1982). The devastating costs imposed\\nby unfounded lawsuits on officers otherwise entitled to immunity are\\nreputational, potentially employment-related, financial and emotional. For\\nthese reasons, the Court has repeatedly explained that qualified immunity\\nshields public officials not just from liability but from suit. See Mitchell v.\\nForsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815 (1985); Pearson v. Callahan,\\n555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (“Qualified immunity is lost if a\\ncase is erroneously permitted to go to trial.”). Some in the lower federal courts\\nmay disapprove of the Court’s half century of authorities, but we may not\\nfunctionally disregard them.\\n Nearly as venerable as the general defense of qualified immunity are the\\ndecisions applying it to Fourth Amendment claims against law enforcement\\nofficers. Anderson v. Creighton affirmed in 1987 that a law enforcement officer\\nwho participates in a warrantless search may be entitled to qualified immunity\\n“if he could establish as a matter of law that a reasonable officer could have\\nbelieved the search to be lawful.” 483 U.S. at 638, 107 S. Ct. at 3038.\\nJustice Scalia’s opinion reminded that “qualified immunity protects all but the\\nplainly incompetent or those who knowingly violate the law.” Id. (internal\\nquotation marks omitted). In determining the objective legal reasonableness\\nof the allegedly unlawful action, “[i]t should not be surprising . . . that our cases\\n\\n\\n 31\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nestablish that the right the official is alleged to have violated must have been\\n‘clearly established’ in a more particularized, and hence more relevant, sense:\\nThe contours of the right must be sufficiently clear that a reasonable official\\nwould understand that what he is doing violates that right.” Id. at 640,\\n107 S. Ct. at 3039.\\n Two years later, the Court clarified that for alleged Fourth Amendment\\nexcessive force violations, reasonableness “must be judged from the perspective\\nof a reasonable officer on the scene, rather than with the 20/20 vision of\\nhindsight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872. The calculus of\\n“reasonableness must embody allowance for the fact that police officers are\\noften forced to make split-second judgments—in circumstances that are tense,\\nuncertain, and rapidly evolving—about the amount of force that is necessary\\nin a particular situation.” Id. at 396-97, 109 S. Ct. at 1872. Ultimately, “the\\nquestion is whether the officers’ actions are ‘objectively reasonable’ in light of\\nthe facts and circumstances confronting them . . . .” Id. at 397, 109 S. Ct. at\\n1872. Quoting these statements from Graham, the Court later explained that\\nthe test for qualified immunity for excessive force “has a further dimension” in\\naddition to the deferential, on-the-scene evaluation of objective\\nreasonableness. Saucier v. Katz, 533 U.S. 194, 205, 121 S. Ct. 2151, 2158\\n(2001). Justice Kennedy explained: “The concern of the immunity inquiry is to\\nacknowledge that reasonable mistakes can be made as to the legal constraints\\non particular police conduct.” Id. “Qualified immunity operates in this case,\\nthen, just as it does in others, to protect officers from the sometimes hazy\\nborder between excessive and acceptable force and to ensure that before they\\nare subjected to suit, officers are on notice their conduct is unlawful.” Id. at\\n206, 121 S. Ct. at 2158 (internal citation and quotation marks omitted).\\n\\n\\n\\n\\n 32\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Evaluating the qualified immunity defense is thus a two-step process.\\nThe first is to determine whether the Fourth Amendment has been violated by\\nconduct that, viewed from the officer’s perspective and information at the time,\\nis objectively unreasonable. 7 The second step assesses the objective legal\\nreasonableness of the action, that is, whether every reasonable officer would\\nhave known that the conduct in question was illegal. See Pearson, 555 U.S. at\\n232, 129 S. Ct. at 815-16. The illegality must have been apparent, as held in\\ncases that are factually similar to the situation confronting the officer. White,\\n137 S. Ct. at 542. Immunity must be granted to all but the plainly incompetent\\nor those who knowingly violate the law. The Supreme Court has enforced\\nimmunity where officers acted negligently, Anderson, 483 U.S. at 641,\\n107 S. Ct. at 3039-40; or when they could have used another method to subdue\\na suspect, Mullenix, 136 S. Ct at 310; or when the law governing their behavior\\nin particular circumstances is unclear. White, 137 S. Ct. at 552. The Court\\nemphasizes that the specificity of the applicable “clearly established” rule is\\nespecially important in Fourth Amendment cases. Mullenix, 136 S. Ct. at 308.\\n By denying plaintiffs their “day in court” at a preliminary stage,\\nqualified immunity operates as a counterintuitive, albeit vital, defense. Thus,\\nthe Supreme Court has regularly reversed denials of qualified immunity where\\nlower courts misapplied the standards. See Wesby v. District of Columbia,\\n816 F.3d 96, 102 (D.C. Cir. 2016) (Kavanaugh, J., dissenting) (citing eleven\\nSupreme Court cases in five years reversing lower courts in the qualified\\nimmunity context including Mullenix v. Luna, 136 S. Ct. 305 (2015), Taylor v.\\n\\n\\n\\n\\n 7 For present purposes, we “address only the qualified immunity question, not whether\\nthere was a Fourth Amendment violation in the first place.” Mullenix, 136 S. Ct. at 308;\\nPearson, 555 U.S. at 236, 129 S. Ct. at 818 (constitutional violation or qualified immunity\\nmay be decided first).\\n\\n 33\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nBarkes, 135 S. Ct. 2042 (2015); City and County of San Francisco, Calif. v.\\nSheehan, 135 S. Ct. 1765 (2015); Carroll v. Carman, 574 U.S. 13, 135 S. Ct.\\n348 (2014); Plumhoff v. Rickard, 572 U.S. 765, 134 S. Ct. 2012 (2014); Wood v.\\nMoss, 572 U.S. 744, 134 S. Ct. 2056 (2014); Stanton v. Sims, 571 U.S. 3,\\n134 S. Ct. 3 (2013); Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 2088 (2012);\\nRyburn v. Huff, 565 U.S. 469, 132 S. Ct. 987 (2012); Messerschmidt v.\\nMillender, 565 U.S. 535, 132 S. Ct. 1235 (2012); Ashcroft v. al-Kidd, 563 U.S.\\n731, 131 S. Ct. 2074 (2011)). Unfortunately, the majority here has fallen into\\nthe trap of “letting the jury sort out the truth” despite the gravity of the\\nsituation these officers faced.\\n As explained above, it is undisputed that the two officers confronted and\\nthen shot at Cole as he emerged from dense bushes ten to twenty feet from\\nOfficer Hunter, unaware of their presence, and began to turn in their direction.\\nThis all happened within three to five seconds. While he turned, Cole held a\\nloaded 9mm semiautomatic pistol, finger on the trigger, pointed in the\\ndirection of his own head. The officers knew he was mentally distraught, had\\nignored other police commands to disarm, had issued threats, and proceeded\\nwalking in the direction of nearby schools.\\n For immunity purposes, the question phrased one way is whether any\\nreasonable officers could have believed that Cole’s split-second turning toward\\nthem posed a life-threatening danger such that lethal force was necessary.\\nAlternatively, what “clearly established law” held as of October 2010 that\\nunder all of the relevant circumstances, deadly force was not justified unless\\neither a warning was given and the suspect allowed a chance to react, or the\\nsuspect actually turned his loaded pistol on the officer? The answer here\\ndirectly parallels the Supreme Court’s reasoning in Mullenix, which the\\nmajority seriously shortchanged.\\n\\n\\n 34\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n In Mullenix, this court had denied qualified immunity to a trooper whose\\nshot fatally wounded a suspect fleeing police in a high-speed chase. The\\nSupreme Court’s basic criticism of the panel decision was this: “In this case,\\nthe Fifth Circuit held that Mullenix violated the clearly established rule that\\na police officer may not use deadly force against a fleeing felon who does not\\npose a sufficient threat of harm to the officer or others. Yet this Court has\\npreviously considered—and rejected—almost that exact formulation of the\\nqualified immunity question in the Fourth Amendment context.” Mullenix,\\n136 S. Ct. at 308-09 (internal quotation marks and citation omitted).\\n The majority here posit as clearly established law, indeed an “obvious\\ncase,” that a police officer may not use deadly force—without prior warning—\\nagainst an armed, distraught suspect who, with finger in the pistol’s trigger,\\nposed “no threat” while turning toward an officer ten to twenty feet away. But\\nin Mullenix, the Supreme Court reversed this court because “[t]he general\\nprinciple that deadly force requires a sufficient threat hardly settles this\\nmatter.” Id. at 309. Likewise, here, the majority’s “no threat” and “obvious\\ncase” conclusions do not settle the matter of clearly established law. 8\\n That the majority here purport to extract clearly established law from\\nTennessee v. Garner was rebuked in Mullenix. The Supreme Court corrected\\nthis court by summary reversal because the Court itself had summarily\\nrejected applying the general standard of Tennessee v. Garner to deny qualified\\nimmunity. Mullenix, 136 S. Ct. at 309 (citing Brosseau v. Haugen, 543 U.S.\\n194, 199, 125 S. Ct. 596, 599 (2004)). Instead, the “correct inquiry” was\\n\\n\\n\\n\\n 8 Worse, it treats as a disputed fact issue for immunity purposes what is clearly an\\nissue of law. See Wyatt v. Fletcher, 718 F.3d 496, 502-03 (5th Cir. 2013).\\n\\n\\n 35\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nwhether it was clearly established that the Fourth Amendment prohibited the\\nofficer’s conduct in the precise situation she confronted. Id. Including\\nMullenix and Brosseau, a series of Supreme Court cases has held that\\nTennessee v. Garner does not state “clearly established law” governing the use\\nof deadly force other than in Garner’s precise factual context, the shooting of\\nan unarmed burglary suspect fleeing away from an officer. 9 The confrontation\\nin this case with an armed, ready-to-fire suspect is “obviously” different.\\n We fail to understand how the denial of qualified immunity to Officers\\nHunter and Cassidy can be rescued simply by intoning that this is an “obvious\\ncase” under Garner. Garner affirmed the constitutionality of deadly force\\nagainst suspects when necessary to protect the life of officers or others “if,\\nwhere feasible, some warning has been given.” 471 U.S. at 11-12, 105 S. Ct. at\\n1701. 10 But Garner in no way renders “clearly established” a requirement to\\ngive a warning, and await the suspect’s response, before shooting. Nor does it\\nmandate that the suspect’s weapon be trained on the officer or others. Like\\nthe rest of the calculus surrounding Fourth Amendment reasonableness, the\\n“feasibility” of any such potentially deadly delay or factual nuance must be\\nsubjected to case-specific balancing with deference paid to the officer’s\\nreasonable perceptions in the midst of a tense situation. Graham, 490 U.S. at\\n396, 109 S. Ct. at 1872. Indeed, in describing its holding at the outset, Garner\\nstates only that “[deadly] force may not be used unless it is necessary to\\nprevent the escape [of an apparently unarmed suspected felon] and the officer\\n\\n\\n\\n\\n 9 Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018); White, 137 S. Ct. at 552.\\n\\n 10 Turning on distinctly different facts, Garner alone does not establish pertinent\\nclearly established law here, and the majority does not contend as much.\\n\\n\\n\\n\\n 36\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhas probable cause to believe that the suspect poses a significant threat of\\ndeath or serious physical injury to the officer or others.” 471 U.S. at 3,\\n105 S. Ct. at 1697. 11 No mention of a warning appears in this introduction,\\nand “probable cause,” not a fact-specific test, is the measure of the threat of\\nharm.\\n Characterizing this case as a “no threat” or “obvious” Fourth Amendment\\nviolation is wrong for additional reasons. Whether, under the material\\nundisputed facts, Cole presented “no threat” to a reasonable police officer is\\nthe relevant issue to assess a Fourth Amendment violation. But the immunity\\nquestion, which the majority elides, is whether every reasonable officer in this\\nfactual context would have known he could not use deadly force. See Pearson,\\n555 U.S. at 232, 129 S. Ct. at 815-816. The majority’s analysis conflates these\\ninquiries. Second, the importance of grounding the inquiry in a specific factual\\ncontext cannot be overstated. In this case, if Officer Hunter had stood a\\nhundred feet away from Cole, or Cole had not been turning toward the officers,\\nor Cole had put the handgun in his pocket and wasn’t touching it, the analysis\\nof qualified immunity could be quite different. Third, describing a situation as\\nposing “no threat” is a conclusion, not an explanation or, as the majority seems\\nto think, an exception to defining clearly established law in a specific context.\\nNo doubt there are rare “obvious” cases of Fourth Amendment violations\\n\\n\\n\\n\\n 11 The majority cites Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997), for the\\nnecessity of giving a warning “where feasible” before the use of deadly force. Oddly, Colston\\nthen immediately holds that the officer there “lying on his back with Colston nearby, had to\\nimmediately decide whether to shoot. In light of the totality of the circumstances facing\\nBarnhart, Barnhart’s failure to give a warning was not objectively unreasonable.” Id. The\\nfeasibility of a warning is part of the overall Fourth Amendment analysis, not an independent\\nsine qua non of official conduct.\\n\\n\\n\\n\\n 37\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncommitted by officers who are plainly incompetent or who knowingly violate\\nthe law. In the wide gap between acceptable and excessive uses of force,\\nhowever, immunity serves its important purpose of encouraging officers to\\nenforce the law, in “tense, uncertain and rapidly evolving” split-second\\nsituations, rather than stand down and jeopardize community safety. 12\\n In their sole, erroneous dependence on Garner, the majority, “can cite no\\ncase from [the Supreme] Court denying qualified immunity because officers\\n[entitled to apprehend Cole] selected one dangerous alternative over another.”\\nMullenix, 136 S. Ct. at 310. The Mullenix Court showed that if anything,\\n“clearly established law” was contrary to the plaintiff’s position. The Court\\ncited two prior Supreme Court car chase cases that resulted in immunity even\\nthough the fugitives—unlike the suspect in Mullenix—had not verbally\\nthreatened to kill any officers in their path. Id. at 310 (citing Scott, 550 U.S.\\nat 384, 127 S. Ct. at 1778; Plumhoff, 572 U.S. at 777, 134 S. Ct at 2022). And\\nin Mullenix itself, as here, the trooper had not warned the fugitive before\\nshooting at his speeding car. These cases “reveal[ed] the hazy legal backdrop\\nagainst which Mullenix acted,” Id. at 309. Accordingly, the Court admonished,\\n“[w]hatever can be said of the wisdom of Mullenix’s choice, this Court’s\\nprecedents do not place the conclusion that he acted unreasonably in these\\ncircumstances beyond debate.” Id. at 311 (internal quotation marks omitted).\\n Not only do the majority cite “no case” in which the Supreme Court\\ndenied qualified immunity to an officer who used deadly force against a\\n\\n\\n\\n\\n 12Compare Wesby, 138 S. Ct. at 590 (“Of course, there can be the rare obvious case,\\nwhere the unlawfulness of the officer’s conduct is sufficiently clear even though existing\\nprecedent does not address similar circumstances. But a body of relevant case law is usually\\nnecessary to clearly establish the answer with respect to probable cause.”) (internal citation\\nand quotation marks omitted).\\n\\n 38\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nmentally distraught individual in circumstances like the present case, but to\\nthe contrary, the Court required qualified immunity in two somewhat similar\\ncases. In Sheehan, officers used deadly force to subdue a mentally ill woman\\nduring an armed confrontation. The Court restated that the Fourth\\nAmendment is not violated even if police officers, with the benefit of hindsight,\\nmay have made some mistakes, because “[t]he Constitution is not blind to ‘the\\nfact that police officers are often forced to make split-second judgments.’”\\nSheehan, 135 S. Ct. at 1775 (quoting Plumhoff, 572 U.S. at 775, 134 S. Ct. at\\n2020).\\n Even closer to this case is White v. Pauly, where an officer arriving at the\\nscene of an armed confrontation shot and killed a suspect without knowing\\nwhether his earlier-arrived colleagues had identified themselves as police.\\n137 S. Ct. at 550-51. In White, the Court chastised the lower court for\\n“misunderst[anding]” the “clearly established” analysis by relying on the\\ngeneralized pronouncements in Graham and Garner. Id. at 552. Whether\\nOfficer White should have second-guessed the preceding conduct of fellow\\nofficers hardly presented an “obvious case” pursuant to Garner. The Court\\nspeculated that perhaps, given the three-minute delay between when he\\narrived and when shots rang out, Officer White “should have realized that [a\\nwarning about police presence] was necessary before using deadly force.” Id.\\nThere is a world of difference between three minutes and three seconds, which\\nOfficer Hunter had here, and between Officer White’s securing himself behind\\na stone wall fifty feet from the suspect and Officer Hunter’s standing fully\\nexposed only ten to twenty feet away from Cole. The majority cannot reconcile\\nthe Supreme Court’s insistence upon qualified immunity in White with their\\ndenial of the defense to Officers Hunter and Cassidy.\\n\\n\\n\\n\\n 39\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Kisela v. Hughes, cited in support of the majority, in no way articulates\\nclearly established law concerning the necessity of a warning. First, the Court\\nin Kisela overturned the Ninth Circuit’s denial of qualified immunity without\\naddressing the preliminary Fourth Amendment violation. 138 S. Ct. at 1152.\\nA decision holding only that there was no “clearly established law” cannot itself\\nhave defined “clearly established law.” The Court also criticized the Ninth\\nCircuit for failing to implement correctly the rule that an officer has not\\n“violated a clearly established right unless the right’s contours were\\nsufficiently definite that any reasonable official in the defendant’s shoes would\\nhave understood that he was violating it.” Id. at 1153 (internal quotation\\nmarks omitted). The Court catalogued all the relevant circumstances of the\\nconfrontation that provoked the shooting: a knife-armed, threatening suspect,\\nwhose bizarre behavior had been called in to 911, disobeyed officers’ commands\\nto disarm for up to one minute before they felt compelled to shoot. Id. The\\nCourt concluded, “[t]his is far from an obvious case in which any competent\\nofficer would have known that shooting Hughes to protect [the third party]\\nwould violate the Fourth Amendment.” Id. Also “far from obvious” is the case\\nbefore us, in which the officers had five seconds, not a whole minute, in which\\nto decide whether to shoot at Cole.\\n Finally, the Supreme Court’s decision in Tolan v. Cotton adds nothing to\\nthe substance of the qualified immunity discussion. In Tolan, the Court\\nenumerated four critical, disputed evidentiary contentions relating to the\\nofficer’s perception of danger to himself and thus to qualified immunity.\\n572 U.S. 650, 657-59, 134 S. Ct. 1861, 1866-67 (2014). Because this court had\\nfailed to credit the plaintiff’s disputed version of these facts, the Court vacated\\nsummary judgment for the officer and remanded without deciding any merits\\n\\n\\n\\n\\n 40\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nissue. Id. at 657, 134 S. Ct. at 1866. In contrast, this dissent credits only\\nundisputed material facts and plaintiffs’ version of disputable facts.\\n Like this court’s panel in Mullenix, the majority here offer no controlling\\nSupreme Court precedent, including Garner, to support that “clearly\\nestablished law” mandated that the officers hold their fire until they had both\\nwarned Cole and given him a chance to drop his gun or until he pointed the\\nloaded weapon directly at them.\\n For good measure, the Mullenix Court also considered the potential\\nsimilarity of lower court decisions that dealt with qualified immunity.\\n136 S. Ct. at 311. Fifth Circuit case law, the Court noted, did not “clearly\\ndictate the conclusion that Mullenix was unjustified in perceiving grave danger\\nand responding accordingly.” Id. at 311 (citing Lytle v. Bexar County, 560 F.3d\\n404, 412 (5th Cir. 2009)). But the Court quoted with approval an Eleventh\\nCircuit case that granted immunity to a sheriff’s deputy who fatally shot a\\nmentally unstable individual “who was attempting to flee in the deputy’s car,\\neven though at the time of the shooting the individual had not yet operated the\\ncruiser dangerously. The court explained that ‘the law does not require officers\\nin a tense and dangerous situation to wait until the moment a suspect uses a\\ndeadly weapon to act to stop the suspect…’” Id. at 311 (quoting Long v. Slaton,\\n508 F.3d 576, 581-82 (11th Cir. 2007)). Here, too, the thrust of Mullenix\\ncontradicts the majority’s logic and holding.\\n Moreover, to the extent it is relevant 13, Fifth Circuit law does not support\\ndenying qualified immunity to Officers Hunter and Cassidy. The district court\\n\\n\\n\\n\\n 13 See fn. 4, supra.\\n\\n\\n\\n\\n 41\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nand, inferentially, the majority demand that qualified immunity be granted\\nonly if the suspect either disobeys immediate commands to disarm or points\\nhis weapon at the officers. The district court described such threatening\\nactions as a Manis act. 14 It is true that in previous deadly force cases, this\\ncourt approved qualified immunity for officers who reasonably believed that a\\nnon-compliant suspect was reaching toward where he could retrieve a weapon.\\nSee Manis, 585 F.3d at 842; see also Reese v. Anderson, 926 F.2d 494, 500-01\\n(5th Cir. 1991); Young v. City of Killeen, Tx., 775 F.2d 1349, 1352 (5th Cir.\\n1985). The hitch in these particular cases is that there wasn’t actually a\\nweapon, yet the officer’s objectively reasonable perception was determinative\\nas a matter of law. In another such officer shooting case, this court upheld\\nqualified immunity where the suspect, who was being interrogated for drunk\\ndriving at the side of a freeway, turned to walk away from the officer, then\\nappeared to turn around toward him while reaching under his shirttail for\\nwhat the officer thought could be a concealed weapon. Salazar-Limon v. City\\nof Houston, 826 F.3d 272, 278 (5th Cir. 2016). This court added,\\n“[f]urthermore, …in the context of this case, it is immaterial whether Salazar\\nturned left, right, or at all before being shot. Specifically, we have never\\nrequired officers to wait until a defendant turns toward them, with weapon in\\nhand, before applying deadly force to ensure their safety.” 826 F.3d at 279 n.\\n6.\\n While a “Manis act” can sustain qualified immunity even where no\\nweapon is visible, it is not logical for an additional “act” to be mandated where\\nthe officers confront a suspect armed, ready to shoot his pistol, and turning\\ntoward them. An officer may be forced into shooting an unarmed suspect by a\\n\\n\\n\\n\\n 14 Manis v. Lawson, 585 F.3d 839 (5th Cir. 2009).\\n\\n 42\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nManis act, and thus obtain qualified immunity. But it is perverse and\\ninconsistent with Fifth Circuit law to hold that the officer has no qualified\\nimmunity because she is constitutionally forbidden to shoot an armed suspect\\nin close quarters without either looking down the barrel of the weapon or\\nawaiting his response to her command.\\n In fact, that is exactly what this court has not held. In Ramirez v.\\nKnoulton, 542 F.3d 124, 127 (5th Cir. 2008), police shot a suspect they believed\\nto be suicidal as he stood in profile to them, with a handgun in his right hand,\\nand brought his hands together in front of his waist.” He “never raised his\\nweapon nor aimed it at the officers.” Id. at 129. The court held that based on\\nthe officers’ reasonable perception, no Fourth Amendment violation occurred,\\nbecause the Constitution “does not require police officers to wait until a suspect\\nshoots to confirm that a serious threat of harm exists.” Id. at 130. See also\\nColston, 130 F.3d at 100; Ontiveros, 564 F.3d at 385 (holding no constitutional\\nviolation where officer thought suspect was reaching into his boot for a weapon\\nduring confrontation in a mobile home). As the Supreme Court put it in\\nMullenix, “the mere fact that courts have approved deadly force in more\\nextreme circumstances says little, if anything, about whether such force was\\nreasonable in the circumstances here.” 136 S. Ct. at 312.\\n The majority describe only one Fifth Circuit police shooting case, out of\\ndozens this court has decided, as an “obvious case.” Baker v. Putnal, 75 F.3d\\n190 (5th Cir. 1996). Whether that characterization applies to the claimed\\nFourth Amendment violation in Baker, to qualified immunity analysis, or\\nsimply to this court’s decision to remand for trial is unclear in the majority\\nopinion. Baker, however, says nothing about the merits of the case or about\\nclearly established law, holding instead that “[t]here are simply too many\\nfactual issues to permit the Bakers’ § 1983 claims to be disposed of on summary\\n\\n\\n 43\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment.” Baker, 75 F.3d at 198. Hence, like Kisela, Baker cannot support\\nany rule of clearly established law, much less explain what law is “obvious.”\\nSignificantly, in Baker, whether the suspect was holding a gun visible to the\\nofficer was an important hotly contested issue, with eyewitnesses contradicting\\nthe officer’s account of the incident. Baker, 75 F.3d at 198. Cole’s case, in\\ncontrast, does not involve a “chaos on the beach” incident. The undisputed\\nfacts are starkly different here. It is undisputed, at a minimum, that Cole was\\nholding a loaded weapon, his finger in the trigger, as he emerged from the\\nwoods; he was turning toward the officers; and they had five seconds to react.\\nBaker does not show that the officers’ conduct in Cole violated clearly\\nestablished law.\\n To sum up, the majority opinion here repeats every error identified by\\nthe Supreme Court when it granted summary reversal in Mullenix and sent\\nthe instant case back for reconsideration. The majority’s “clearly established”\\nrule has changed, but not its errors. Tennessee v. Garner does not formulate\\n“clearly established law” with the degree of specificity required by the Supreme\\nCourt’s decisions on qualified immunity. The majority’s “no threat” and\\n“obvious case” statements pose the issues here at an excessive level of\\ngenerality. The majority has no Supreme Court case law demonstrating that\\nOfficers Hunter and Cassidy were either plainly incompetent or had to know\\nthat shooting at Cole was unconstitutional under the circumstances before\\nthem and with the knowledge they possessed—he was mentally distraught; he\\nwas armed with his finger in the pistol’s trigger; he was very close to Hunter;\\nhe had been walking in the direction of schools for which extra police protection\\nhad been ordered; and he had ignored other officers’ commands to stop and\\ndrop his weapon. And they had three to five seconds to decide how dangerous\\nhe could be to them. The majority cites not one case from this court denying\\n\\n\\n 44\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nqualified immunity under similar circumstances. Mullenix aptly summed it\\nup for our purposes: “qualified immunity protects actions in the hazy border\\nbetween excessive and acceptable force.” 136 S. Ct. at 312 (internal quotation\\nmarks omitted). “[T]he constitutional rule applied by the Fifth Circuit was not\\n‘beyond debate.’” Id.\\n It is not “clearly established” that police officers confronting armed,\\nmentally disturbed suspects in close quarters must invariably stand down\\nuntil they have issued a warning and awaited the suspects’ reaction or are\\nfacing the barrel of a gun. “This was not a belief in possible harm, but a belief\\nin certain harm. The fact that they would later discover this to be a mistaken\\nbelief does not alter the fact that it was objectively reasonable for them to\\nbelieve in the certainty of that risk at that time.” Carnaby v. City of Houston,\\n636 F.3d 183, 188 n.4 (5th Cir. 2011). That is the law in the Fifth Circuit, and\\nthe majority has pointed to no clearly established law otherwise. Shooting at\\nCole may not have been the wisest choice under these pressing circumstances,\\nbut the officers’ decision, even if assailable, was at most negligent. Hunter and\\nCassidy were neither plainly incompetent nor themselves lawbreakers. While\\nwe are confident a jury will vindicate their actions, they deserved qualified\\nimmunity as a matter of law. We dissent.\\n\\n\\n\\n\\n 45\\n\\n No. 14-10228 c/w No. 15-10045\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431895/\", \"author_raw\": \"and OLDHAM, Circuit Judges, dissenting\"}, {\"author\": \"JERRY E. SMITH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JERRY E. SMITH, Circuit Judge, dissenting:\\n\\n This is a “red flag” case if ever there was one. The en banc majority\\ncommits grave error, as carefully explained in the dissents by Judge Jones,\\nJudge Willett, Judges Ho and Oldham (jointly), and Judge Duncan. Yet eleven\\njudges join the majority.\\n\\n Abandon hope, all ye who enter Texas, Louisiana, or Mississippi as peace\\nofficers with only a few seconds to react to dangerous confrontations with\\nthreatening and well-armed potential killers. In light of today’s ruling and the\\nraw count of judges, 1 there is little chance that, any time soon, the Fifth Circuit\\nwill confer the qualified-immunity protection that heretofore-settled Supreme\\nCourt and Fifth Circuit caselaw requires.\\n\\n Red flags abound. Judge Duncan cogently details the “rich vein of facts”\\ndescribing this plaintiff’s undisputed actions in the hours leading up to the\\nshooting. 2\\n\\n • Red flag: a 9mm semi-automatic handgun and ammunition.\\n • Red flag: a double-barrel shotgun with shells.\\n • Red flag: a .44 magnum revolver.\\n • Red flag: a .38 revolver.\\n • Red flag: a suspect who had broken into a gun safe and stolen\\n an unknown quantity of weapons and ammunition.\\n • Red flag: a police visit the night before to the suspect’s house\\n because of a disturbance with his parents.\\n\\n\\n\\n\\n 1This en banc court consists of the sixteen active judges, plus two senior judges who\\nwere on the original panel. Of those sixteen active judges, nine join the majority opinion.\\n 2I especially refer the reader to Part I of Judge Duncan’s dissent, which sets forth the\\ncontext and narrative of red-flag facts that easily justify qualified immunity. All three dis-\\nsents persuasively explain the law of qualified immunity that the majority overlooks.\\n\\n 46\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n • Red flag: a suspect with a dangerous knife at his parents’\\n house.\\n • Red flag: a suspect who had a wild look in his eye and was\\n smoking K2.\\n • Red flag: a suspect, distraught over breaking up with his girl-\\n friend, moving toward the school where she was a student.\\n • Red flag: a suspect near an elementary school.\\n • Red flag: a suspect with personal issues including drug abuse.\\n • Red flag: a suspect seen running through the woods with at\\n least three weapons.\\n • Red flag: a suspect irate and distraught.\\n • Red flag: a suspect who said he would shoot anyone who came\\n near him.\\n • Red flag: a suspect armed with at least one handgun and pos-\\n sibly three.\\n • Red flag: a suspect who had refused police demands to drop his\\n weapon.\\n • Red flag: a suspect who deposited a cache of weapons and am-\\n munition at a friend’s house after arguing with his parents.\\n • Red flag: a suspect who yelled obscenities at an officer.\\n • Red flag: a suspect who had threatened to kill his girlfriend\\n and himself.\\n • Red flag: a suspect whom the district court described as\\n troubled.\\n • Red flag: a suspect described in his complaint as suffering from\\n obsessive compulsive disorder, treated with medications from\\n numerous medical professionals, and having poor judgment and\\n impaired impulse control.\\n\\n * * * * *\\n\\n\\n Normally we expect police officers to recognize such red flags and to\\nrespond appropriately. Instead of protecting these officers from obvious dan-\\nger to themselves and the public, however, the en banc majority orders them\\n\\n 47\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nto stand down. What is the hapless officer to do in the face of today’s decision?\\nWhat indeed is the “clearly established law” that the majority now announces?\\nThe judges in the majority do not say.\\n\\n The law of qualified immunity was poignantly summarized in 2019 by a\\ndissenting judge who is now in the majority. Today’s en banc ruling turns\\nthose words to dust. 3\\n\\n I respectfully dissent.\\n\\n\\n\\n\\n 3 Winzer v. Kaufman Cty., 916 F.3d 464, 482 (5th Cir. 2019) (Clement, J., dissenting),\\npetition for rehearing en banc pending:\\n The implications of the majority’s mistakes cannot be minimized.\\n The majority decides that qualified immunity can be endangered by an\\n affidavit filed at summary judgment that creates a fact issue nowhere else\\n supported by record evidence.\\n Worse still, it seriously undermines officers’ ability to trust their\\n judgment during those split seconds when they must decide whether to use\\n lethal force. Qualified immunity is designed to respect that judgment,\\n requiring us to second-guess only when it clearly violates the law. The\\n standard acknowledges that we judges—mercifully—never face that split\\n second. Indeed, we never have to decide anything without deliberation—let\\n alone whether we must end one person’s life to preserve our own or the lives of\\n those around us.\\n The qualified immunity standard stops this privilege from blinding\\n our judgment, preventing us from pretending we can place ourselves in the\\n officers’ position based on a cold appellate record. It prevents us from\\n hubristically declaring what an officer should have done—as if we can expect\\n calm calculation in the midst of chaos.\\n The majority opinion, written from the comfort of courthouse\\n chambers, ignores that deference. Instead, it warns officers that they cannot\\n trust what they see; they cannot trust what their fellow officers observe; they\\n cannot trust themselves when posed with a credible threat. It instructs them,\\n in that pivotal split second, to wait. But when a split second is all you have,\\n waiting itself is a decision—one that may bring disastrous consequences.\\n\\n 48\\n\\n No. 14-10228 c/w No. 15-10045\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431895/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge, dissenting\"}, {\"author\": \"DON R. WILLETT, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"DON R. WILLETT, Circuit Judge, dissenting:\\n\\n I repeat what I said last month: The entrenched, judge-invented\\nqualified immunity regime ought not be immune from thoughtful reappraisal. 1\\n Qualified immunity strikes an uneasy, cost–benefit balance between two\\ncompeting deterrence concerns: “the need to hold public officials accountable\\nwhen they exercise power irresponsibly and the need to shield officials from\\nharassment, distraction, and liability when they perform their duties\\nreasonably.” 2 By insulating incaution, the doctrine formalizes a rights–\\nremedies gap through which untold constitutional violations slip unchecked.\\nThe real-world functioning of modern immunity practice—essentially “heads\\ngovernment wins, tails plaintiff loses”—leaves many victims violated but not\\nvindicated. More to the point, the “clearly established law” prong, which is\\noutcome-determinative in most cases, makes qualified immunity sometimes\\nseem like unqualified impunity: “letting public officials duck consequences for\\nbad behavior—no matter how palpably unreasonable—as long as they were the\\nfirst to behave badly.” 3\\n That said, as a middle-management circuit judge, I take direction from\\nthe Supreme Court. And the Court’s direction on qualified immunity is\\nincreasingly unsubtle. We must respect the Court’s exacting instructions—\\neven as it is proper, in my judgment, to respectfully voice unease with them. 4\\n\\n\\n\\n\\n 1 Zadeh v. Robinson, 928 F.3d 457, 474 (5th Cir. 2019) (Willett, J., concurring in part,\\ndissenting in part).\\n 2 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (flagging these “two important\\n\\ninterests”).\\n 3 Zadeh, 928 F.3d at 479.\\n 4 See, e.g., State Oil Co. v. Khan, 522 U.S. 3 (1997) (overruling prior precedent whose\\n\\nunsoundness had been “aptly described” by the court of appeals).\\n\\n\\n 49\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n I\\n Qualified immunity protects “all but the plainly incompetent or those\\nwho knowingly violate the law.” 5 While this bar is not insurmountable, it is\\nsky-high. And it is raised higher when courts leapfrog prong one (deciding\\nwhether the challenged behavior violates the Constitution) to reach simpler\\nprong two: no factually analogous precedent. Merely proving unconstitutional\\nmisconduct isn’t enough. A plaintiff must cite functionally identical authority\\nthat puts the unlawfulness “beyond debate” to “every” reasonable officer. 6 Last\\nmonth, for example, the Eleventh Circuit, noting no “materially similar case”\\n(thus no “clearly established law”), granted immunity to a police officer who\\nfired at a family’s dog but instead shot a 10-year-old child lying face-down 18\\ninches from the officer. 7 Not only that, the court “expressly [took] no position”\\nas to “whether a constitutional violation occurred in the first place.” 8\\nTranslation: If the same officer tomorrow shoots the same child while aiming\\nat the same dog, he’d receive the same immunity. Ad infinitum.\\n The Supreme Court demands precedential specificity. But it’s all a bit\\nrecursive. There’s no earlier similar case declaring a constitutional violation\\nbecause no earlier plaintiff could find an earlier similar case declaring a\\nconstitutional violation. “Section 1983 meets Catch-22. Plaintiffs must produce\\nprecedent even as fewer courts are producing precedent. Important\\nconstitutional questions go unanswered precisely because no one’s answered\\n\\n\\n\\n\\n 5 District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs,\\n475 U.S. 335, 341 (1986)).\\n 6 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see also, e.g., Kisela v. Hughes, 138 S.\\n\\nCt. 1148, 1153 (2018) (per curiam); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).\\n 7 Corbitt v. Vickers, 929 F.3d 1304, 1307–08 (11th Cir. 2019).\\n 8 Id. at 1323.\\n\\n\\n\\n\\n 50\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthem before. Courts then rely on that judicial silence to conclude there’s no\\nequivalent case on the books. No precedent = no clearly established law = no\\nliability. An Escherian Stairwell.” 9\\n II\\n In recent years, individual Justices have raised concerns with the Court’s\\nimmunity caselaw. 10 Even so, the doctrine enjoys resounding, even hardening\\nfavor at the Court. Just three months ago, in a case involving the warrantless\\nstrip search of a four-year-old preschooler, a strange-bedfellows array of\\nscholars and advocacy groups—perhaps the most ideologically diverse amici\\never assembled—implored the Court to push reset. 11 To no avail. This much is\\ncertain: Qualified immunity, whatever its success at achieving its intended\\npolicy goals, thwarts the righting of many constitutional wrongs.\\n Perhaps the growing left–right consensus urging reform will one day win\\nout. There are several “mend it, don’t end it” options. The Court could revisit\\nPearson 12 and nudge courts to address the threshold constitutional merits\\nrather than leave the law undeveloped. 13 Even if a particular plaintiff cannot\\n\\n\\n\\n\\n 9 Zadeh, 928 F.3d at 479–80 (Willett, J., concurring in part, dissenting in part).\\n 10 Four sitting Justices “have authored or joined opinions expressing sympathy” with\\nassorted critiques of qualified immunity. Joanna C. Schwartz, The Case Against Qualified\\nImmunity, 93 NOTRE DAME L. REV. 1797, 1800 (2018) (including Justices Thomas, Ginsburg,\\nBreyer, and Sotomayor, plus recently retired Justice Kennedy); see, e.g., Ziglar v. Abbasi, 137\\nS. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and concurring in the judgment) (“In\\nan appropriate case, we should reconsider our qualified immunity jurisprudence.”); see also\\nKisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (per curiam).\\n 11 Doe v. Woodard, 912 F.3d 1278 (10th Cir. 2019), cert. denied, No. 18-1173, 2019 WL\\n\\n1116409, at *1 (May 20, 2019). As for congressional reform, Congress’s refusal to revisit §\\n1983 suggests Article I acquiescence.\\n 12 555 U.S. at 236.\\n 13 As observers have cautioned, unfettered Pearson discretion contributes to\\n\\n“constitutional stagnation” by impeding the development of precedent. Aaron L. Nielson &\\nChristopher J. Walker, The New Qualified Immunity, 89 S. CAL. L. REV. 1, 23–24 (2015).\\n\\n\\n 51\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nbenefit (due to the “clearly established law” prong), this would provide moving-\\nforward guidance as to what the law prescribes and proscribes. Short of that,\\nthe Court could require lower courts to explain why they are side-stepping the\\nconstitutional merits question. 14 Or the Court could confront the widespread\\ninter-circuit confusion on what constitutes “clearly established law.” 15 One\\nconcrete proposal: clarifying the degree of factual similarity required in cases\\ninvolving split-second decisions versus cases involving less-exigent situations.\\nThe Court could also, short of undoing Harlow and reinstating the bad-faith\\nprong, permit plaintiffs to overcome immunity by presenting objective evidence\\nof an official’s bad faith. 16 Not subjective evidence of bad faith, which Harlow,\\nworried about “peculiarly disruptive” and “broad-ranging discovery,” forbids. 17\\nAnd not unadorned allegations of bad faith. But objective evidence that the\\nofficial actually realized that he was violating the Constitution.\\n Prudent refinements abound. But until then, as Judge Jones explains in\\ntoday’s principal dissent, the Supreme Court’s unflinching, increasingly\\nemphatic application of “clearly established law” compels dismissal.\\n III\\n I remain convinced that contemporary immunity jurisprudence merits\\n“a refined procedural approach that more smartly—and fairly—serves its\\n\\n\\n\\n\\n 14 Id. at 7.\\n 15 See, e.g., RICHARD FALLON, JR., ET AL., HART AND WECHSLER’S THE FEDERAL\\nCOURTS AND THE FEDERAL SYSTEM 1047–50 (7th ed. 2015) (noting the difficulties of applying\\nthe clearly-established-law test); Karen M. Blum, Section 1983 Litigation: The Maze, the\\nMud, and the Madness, 23 WM. & MARY BILL RTS. J. 913, 925 n.68 (2015) (“[W]hether a right\\nis found to be ‘clearly established’ is very much a function of which circuit (and I would add,\\nwhich judge) is asking the question, and how that question is framed.”).\\n 16 Harlow v. Fitzgerald prevents plaintiffs from relying on subjective evidence of bad\\n\\nfaith. 457 U.S. 800, 815–16 (1982).\\n 17 Id. at 817.\\n\\n\\n\\n\\n 52\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nintended objectives.” 18 Yet I also remain convinced that a majority of the\\nSupreme Court disagrees. My misgivings, I believe, are well advised. But we\\nwould be ill advised to treat the reform of immunity doctrine as something for\\nthis court rather than that Court. 19\\n For these reasons, I respectfully dissent.\\n\\n\\n\\n\\n 18 Zadeh, 928 F.3d at 481 (Willett, J., concurring in part, dissenting in part).\\n 19 As for the sidelong critique of me in the dissenting opinion of Judges Ho and\\nOldham, it is, respectfully, a pyromaniac in a field of straw men. I have not raised originalist\\nconcerns with qualified immunity. My concerns, repeated today, are doctrinal, procedural,\\nand pragmatic in nature. Nor has my unease with modern immunity practice led me to wage\\n“war with the Supreme Court’s qualified-immunity jurisprudence.” I am a fellow dissenter\\ntoday, notwithstanding my unease, precisely because I believe the Court’s precedent compels\\nit. In short, I have not urged that qualified immunity be repealed. I have urged that it be\\nrethought. Justice Thomas—no “halfway originalist”—has done the same. Ziglar, 137 S. Ct.\\nat 1872 (Thomas, J., concurring in part and concurring in the judgment) (“In an appropriate\\ncase, we should reconsider our qualified immunity jurisprudence.”).\\n\\n 53\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nJAMES C. HO and ANDREW S. OLDHAM, Circuit Judges, joined by JERRY\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431895/\", \"author_raw\": \"DON R. WILLETT, Circuit Judge, dissenting\"}, {\"author\": \"E. SMITH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"E. SMITH, Circuit Judge, dissenting:\\n\\n Apparently SUMREVs mean nothing.\\n In Luna v. Mullenix, 773 F.3d 712 (5th Cir. 2014), we sent a state trooper\\nto a jury “in defiance” of “the concept and precedents of qualified immunity.”\\n777 F.3d 221, 222 (5th Cir. 2014) (Jolly, J., dissenting from denial of rehearing\\nen banc). The Supreme Court summarily reversed us. Mullenix v. Luna, 136\\nS. Ct. 305 (2015) (per curiam). Then they GVR’d us in this case and ordered\\nus to reconsider our obvious error in light of Mullenix.\\n The en banc majority instead doubles down. That is wrong for all the\\nreasons Judge Jones gives in her powerful dissent, which we join in full. We\\nwrite to emphasize the en banc majority’s unmistakable message: Four years\\nafter Mullenix, nothing has changed in our circuit.\\n I.\\n The Supreme Court has not hesitated to redress similar intransigence\\nfrom our sister circuits—often through the “extraordinary remedy of a\\nsummary reversal.” Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor,\\nJ., dissenting) (quotation omitted). See, e.g., City of Escondido v. Emmons, 139\\nS. Ct. 500 (2019) (per curiam) (summarily reversing the Ninth Circuit); Kisela,\\n138 S. Ct. 1148 (per curiam) (same); District of Columbia v. Wesby, 138 S. Ct.\\n577 (2018) (reversing the D.C. Circuit); White v. Pauly, 137 S. Ct. 548 (2017)\\n(per curiam) (summarily reversing the Tenth Circuit); City and County of San\\nFrancisco v. Sheehan, 135 S. Ct. 1765 (2015) (reversing the Ninth Circuit);\\nCarroll v. Carman, 574 U.S. 13 (2014) (per curiam) (summarily reversing the\\nThird Circuit); Wood v. Moss, 572 U.S. 744 (2014) (reversing the Ninth Circuit);\\nPlumhoff v. Rickard, 572 U.S. 765 (2014) (reversing the Sixth Circuit); Stanton\\nv. Sims, 571 U.S. 3 (2013) (per curiam) (summarily reversing the Ninth\\nCircuit); Reichle v. Howards, 566 U.S. 658 (2012) (reversing the Tenth Circuit);\\n\\n 54\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nRyburn v. Huff, 565 U.S. 469 (2012) (per curiam) (summarily reversing the\\nNinth Circuit); Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (same); Brosseau v.\\nHaugen, 543 U.S. 194 (2004) (per curiam) (same).\\n In each of these cases, the Supreme Court reminded lower courts that\\nqualified immunity requires us not only to identify a clearly established rule\\nof law, but to do so with great specificity. Everyone agrees, of course, that Ryan\\nCole has a constitutional right not to be seized unreasonably. But “that is not\\nenough” to subject a police officer to the burdens of our civil litigation system.\\nSaucier v. Katz, 533 U.S. 194, 202 (2001). The Supreme Court has “repeatedly\\ntold courts . . . not to define clearly established law at [that] high level of\\ngenerality.” al-Kidd, 563 U.S. at 742. Rather, “[t]he dispositive question is\\nwhether the violative nature of particular conduct is clearly established.”\\nMullenix, 136 S. Ct. at 308 (citation omitted).\\n Only by identifying a specific and clearly established rule of law do we\\nensure that the officer had “fair notice”—“in light of the specific context of the\\ncase, not as a broad general proposition”—that his or her particular conduct\\nwas unlawful. Brosseau, 543 U.S. at 198 (citation omitted). See also, e.g.,\\nSheehan, 135 S. Ct. at 1776 (“Qualified immunity is no immunity at all if\\n‘clearly established’ law can simply be defined as the right to be free from\\nunreasonable searches and seizures.”); Wilson v. Layne, 526 U.S. 603, 615\\n(1999) (same); Anderson v. Creighton, 483 U.S. 635, 640 (1987) (same).\\n So where is our clearly established law at issue here? Unbelievably, the\\nen banc majority says we don’t need any. That’s so, they say, because “[t]his is\\nan obvious case.” Ante, at 16. That’s obviously wrong for three reasons.\\n First, the Supreme Court to date has never identified an “obvious” case\\nin the excessive force context. And the majority thinks this is the first? A case\\nwhere a mentally disturbed teenager—who has a loaded gun in his hand with\\n\\n\\n 55\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nhis finger on the trigger; who has repeatedly refused to be disarmed; who has\\nthreatened to kill anyone who tries to disarm him; who poses such a deadly\\nthreat that police have been deployed to protect innocent students and teachers\\nat his nearby high school—turns toward the officers just ten to twenty feet\\naway, giving them only seconds to decide what to do in response. Really?\\n Second, the Supreme Court has granted qualified immunity in much\\ntougher cases than this one. In Plumhoff, for example, officers fired 15 shots\\nand killed two unarmed men who fled a traffic stop. In Brosseau, an officer\\nshot an unarmed man who refused to open his truck window. In Kisela, officers\\nshot a woman who was hacking a tree with a kitchen knife. In Sheehan,\\nofficers shot an old woman holding a kitchen knife in an assisted-living facility.\\nIn all of these cases, the Court held the officers were entitled to qualified\\nimmunity.\\n Third, this is Mullenix all over again. There our court relied on clearly\\nestablished law as articulated in Tennessee v. Garner, 471 U.S. 1 (1985).\\nGarner involved an unarmed man who fled from police after stealing $10. An\\nofficer fatally shot Garner in the back of the head as he attempted to climb a\\nfence. Our court then extended Garner to Mullenix’s case—which involved a\\nman who led police on a high-speed car chase after violating his probation. A\\nstate trooper attempted to end the chase by shooting the speeding car’s engine\\nblock—but he missed the engine, hit the driver in the face, and killed him. See\\nLuna, 773 F.3d at 719–20 (discussing Garner). The Supreme Court summarily\\nreversed us because—as should be painfully obvious from the Court’s serial\\nreversals in this area—that’s not how qualified immunity works. See Mullenix,\\n136 S. Ct. at 308–09 (holding our court erred in our extrapolation of Garner to\\n\\n\\n\\n\\n 56\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nnew facts). And they GVR’d us in this very case to fix our mistakes in light of\\nMullenix. The Supreme Court’s message could not be clearer. 1\\n Still, somehow, today’s majority does not get it. Here, as in Mullenix, the\\nmajority attempts to rely on Garner to establish the governing rule of law.\\nFrom Garner, the majority somehow divines a rule that an officer cannot shoot\\na mentally disturbed teenager holding a gun near his school. This is\\ndemonstrably erroneous. In fact, one thing that unites the Supreme Court’s\\nrecent reversals in cases involving qualified immunity and excessive force is\\nthe attempt by lower courts to extrapolate Garner to new facts. See Mullenix,\\n136 S. Ct. at 308–09; Scott v. Harris, 550 U.S. 372, 381–82 (2007) (same); Allen\\nv. City of West Memphis, 509 F. App’x 388, 392 (6th Cir. 2012) (extrapolating\\nGarner), rev’d by Plumhoff, supra.\\n Moreover, there are additional parallels between Mullenix and this case.\\nConsider the supposed requirement that an officer take some sort of non-lethal\\nmeasure before using lethal force. In Mullenix, our court used the power of 20-\\n20 hindsight to say that a reasonable officer should have used spike strips to\\n\\n\\n\\n\\n 1 The Supreme Court issues GVRs when, as here, legal error infects the judgment\\nbelow. See, e.g., Hicks v. United States, 137 S. Ct. 2000, 2000–01 (2017) (Gorsuch, J.,\\nconcurring) (defending GVR because “[a] plain legal error infects this judgment” and because\\npetitioner “enjoys a reasonable probability of success” in getting judgment reversed on the\\nmerits); id. at 2002 (Roberts, C.J., dissenting) (“[W]ithout a determination from this Court\\nthat the judgment below was wrong or at least a concession from the Government to that\\neffect, we should not, in my view, vacate the Fifth Circuit’s judgment.”). As the cert petition\\nexplained, our panel denied qualified immunity “based on the same rationale” on “which this\\nCourt reversed in Mullenix.” Pet. at i, 2016 WL 4987324. We think it obvious the Supreme\\nCourt GVR’d because it agreed. And tellingly, the majority does not offer an alternative\\ntheory to explain the GVR. We ignore the Court’s message at our peril. See, e.g., Smith v.\\nMitchell, 437 F.3d 884 (9th Cir. 2006) (granting habeas relief to a state prisoner because the\\nevidence was insufficient to prove she shook her grandbaby to death); Patrick v. Smith, 550\\nU.S. 915 (2007) (GVR’ing i/l/o Carey v. Musladin, 549 U.S. 70 (2006)); Smith v. Patrick, 519\\nF.3d 900 (9th Cir. 2008) (again granting habeas relief); Patrick v. Smith, 558 U.S. 1143 (2010)\\n(GVR’ing i/l/o McDaniel v. Brown, 558 U.S. 120 (2010)); Smith v. Mitchell, 624 F.3d 1235 (9th\\nCir. 2010) (again granting habeas relief); Cavazos v. Smith, 565 U.S. 1 (2011) (SUMREV’ing).\\n\\n 57\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nstop the chase. See 773 F.3d at 720–21. The Supreme Court emphatically\\nrebuked us. See 136 S. Ct. at 310. They told us that an officer does not have\\nto expose himself or other officers to harm when the suspect has already\\nrefused to be disarmed. That meant Trooper Mullenix did not have to wait to\\nsee if the fleeing felon would shoot or run over the officer manning the spike\\nstrips. See id. at 310–11.\\n So too here. In this case, the majority complains that the officers did not\\nprovide sufficient warning. But there was no clearly established law requiring\\nOfficers Cassidy and Hunter to announce themselves—while caught in an open\\nand defenseless position—and hope not to get shot. That is particularly true\\nhere because officers previously ordered Cole to put down his gun, he refused,\\nand he threatened to kill anyone who attempted to disarm him.\\n And in Mullenix, as here, we accused the police officers of being cowboys.\\nEarlier on the day of the shooting, Trooper Mullenix received a negative\\nperformance review for “not being proactive enough as a Trooper”; so in the\\naftermath of the shooting, Mullenix said to his supervisor, “How’s that for\\nproactive?” 773 F.3d at 717; see also 136 S. Ct. at 316 (Sotomayor, J.,\\ndissenting). The panel opinions and en banc majority opinion in this case\\nlikewise seethe with innuendo that Officers Hunter and Cassidy were wannabe\\ncowboys looking for a gunfight. We are in no position to make such accusations.\\nNo member of this court has stared down a fleeing felon on the interstate or\\nconfronted a mentally disturbed teenager who is brandishing a loaded gun\\nnear his school. And the Mullenix Court held that the qualified-immunity\\nstandard gives us no basis for sneering at cops on the beat from the safety of\\nour chambers. See 136 S. Ct. at 310–11 (majority op.) (citing Brief for National\\nAssociation of Police Organizations et al. as Amici Curiae). Yet here we are.\\nAgain.\\n\\n\\n 58\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II.\\n The majority cannot dodge responsibility for today’s decision by pointing\\nto the limits of appellate jurisdiction. See ante, at 13–14 (majority op.); ante,\\nat 1 (Elrod, J., concurring). We obviously lack interlocutory appellate\\njurisdiction to review the genuineness of an officer’s fact dispute. See, e.g.,\\nJohnson v. Jones, 515 U.S. 304, 313–14 (1995); Kinney v. Weaver, 367 F.3d 337,\\n346–47 (5th Cir. 2004) (en banc) (applying Johnson v. Jones).\\n But that does nothing to defeat jurisdiction where, as here, the factual\\ndisputes are immaterial. That is why the Supreme Court repeatedly has\\nrejected such no-jurisdiction pleas from those who wish to deny qualified\\nimmunity. See, e.g., Plumhoff, 572 U.S. at 771–73; id. at 773 (noting existence\\nof genuine fact dispute did not defeat appellate jurisdiction in Scott v. Harris).\\n All the fact disputes in the world do nothing to insulate this legal\\nquestion: Is this an “obvious case” under Garner—notwithstanding a\\nmountain of SUMREVs, GVRs, and pointed admonitions from the Supreme\\nCourt? The majority says yes. Ante, at 16. They obviously must have\\njurisdiction to say so. With respect, it makes no sense to say we lack\\njurisdiction to disagree with them.\\n III.\\n What explains our circuit’s war with the Supreme Court’s qualified-\\nimmunity jurisprudence? Two themes appear to be at play.\\n First, the majority suggests we should be less than enthused about\\nSupreme Court precedent in this area, because it conflicts with plaintiffs’ jury\\nrights. To quote the panel: “Qualified immunity is a judicially created doctrine\\ncalculated to protect an officer from trial before a jury of his or her peers. At\\nbottom lies a perception that the jury brings a risk and cost that law-\\nenforcement officers should not face, that judges are preferred for the task—a\\n\\n\\n 59\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment made by appellate judges.” Cole v. Carson, 905 F.3d 334, 336 (5th\\nCir. 2018). Or in the words of today’s majority: “The Supreme Court over\\nseveral years has developed protection from civil liability for persons going\\nabout their tasks as government workers” (a rather curious way to describe the\\nmen and women who swear an oath to protect our lives and communities).\\nAnte, at 2. But “the worker’s defense” must yield, in cases like this, “in\\nobeisance to [the] constitutional mandate” of a jury trial. Id.\\n We appreciate the majority’s candor. But inferior court judges may not\\nprefer juries to the Justices.\\n Second, some have criticized the doctrine of qualified immunity as\\nahistorical and contrary to the Founders’ Constitution. Ante at 2 (suggesting\\ndenial of qualified immunity is commanded by “the Founders”); compare\\nWilliam Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45, 49–\\n61 (2018), with Aaron L. Nielson & Christopher J. Walker, A Qualified Defense\\nof Qualified Immunity, 93 NOTRE DAME L. REV. 1853, 1856–63 (2018); see also\\nZadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring\\ndubitante), revised on petition for reh’g en banc, 928 F.3d 457, 473 (5th Cir.\\n2019) (Willett, J., concurring in part and dissenting in part).\\n As originalists, we welcome the discussion. But separate and apart from\\nthe fact that we are bound as a lower court to follow Supreme Court precedent,\\na principled commitment to originalism provides no basis for subjecting these\\nofficers to trial.\\n The originalist debate over qualified immunity may seem fashionable to\\nsome today. But it is in fact an old debate. Over two decades ago, Justices\\nScalia and Thomas noted originalist concerns with qualified immunity. But\\nthey also explained how a principled originalist would re-evaluate established\\n\\n\\n\\n\\n 60\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ndoctrines. See Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998) (Scalia, J.,\\njoined by Thomas, J., dissenting).\\n A principled originalist would not cherry pick which rules to revisit based\\non popular whim. A principled originalist would fairly review decisions that\\nfavor plaintiffs as well as police officers. As Justice Scalia explained in a\\ndissent joined by Justice Thomas, a principled originalist would evenhandedly\\nexamine disputed precedents that expand, as well as limit, § 1983 liability:\\n [O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has\\n not purported to be faithful to the common-law immunities that\\n existed when § 1983 was enacted . . . . [But] [t]he § 1983 that the\\n Court created in 1961 bears scant resemblance to what Congress\\n enacted almost a century earlier. I refer, of course, to the holding\\n of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871\\n statute covering constitutional violations committed “under color\\n of any statute, ordinance, regulation, custom, or usage of any\\n State,” Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into\\n a statute covering constitutional violations committed without the\\n authority of any statute, ordinance, regulation, custom, or usage\\n of any State, and indeed even constitutional violations committed\\n in stark violation of state civil or criminal law.\\n\\n\\nId. at 611.\\n Justices Scalia and Thomas ultimately concluded that it is better to leave\\nthings alone than to reconfigure established law in a one-sided manner. If\\nwe’re not willing to re-evaluate all § 1983 precedents in a balanced and\\nprincipled way, then it “is perhaps just as well” that “[w]e find ourselves\\nengaged . . . in the essentially legislative activity of crafting a sensible scheme\\nof qualified immunities for the statute we have invented—rather than\\napplying the common law embodied in the statute that Congress wrote.” Id.\\nat 611–12.\\n Translation: If we’re not going to do it right, then perhaps we shouldn’t\\ndo it at all.\\n\\n 61\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Subjecting these officers to trial on originalist grounds is precisely the\\nunprincipled practice of originalism that Justices Scalia and Thomas railed\\nagainst. And not just for the procedural reasons they identified in Crawford-\\nEl. What about the original understanding of the Fourth Amendment, which\\nthe plaintiffs here invoke as their purported substantive theory of liability in\\nthis case? Does the majority seriously believe that it is an “unreasonable\\nseizure,” as those words were originally understood at the Founding, for a police\\nofficer to stop an armed and mentally unstable teenager from shooting\\ninnocent officers, students, and teachers?\\n And make no mistake: Principled originalism is not just a matter of\\nintellectual precision and purity. There are profound practical consequences\\nhere as well, given the important and delicate balance that qualified immunity\\nis supposed to strike. As the Supreme Court has explained, qualified immunity\\nensures that liability reaches only “the plainly incompetent or those who\\nknowingly violate the law.” Mullenix, 136 S. Ct. at 308 (quotation omitted).\\nAnd absent plain incompetence or intentional violations, qualified immunity\\nmust attach, because the “social costs” of any other rule are too high:\\n [I]t cannot be disputed seriously that claims frequently run\\n against the innocent as well as the guilty—at a cost not only to the\\n defendant officials, but to society as a whole. These social costs\\n include the expenses of litigation, the diversion of official energy\\n from pressing public issues, and the deterrence of able citizens\\n from acceptance of public office. Finally, there is the danger that\\n fear of being sued will dampen the ardor of all but the most\\n resolute, or the most irresponsible public officials, in the\\n unflinching discharge of their duties.\\n\\nHarlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (alterations and quotations\\nomitted); see also, e.g., Sheehan, 135 S. Ct. at 1774 n.3 (noting “the importance\\nof qualified immunity to society as a whole”).\\n\\n\\n\\n 62\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n For those who have expressed concerns about a “one-sided approach to\\nqualified immunity,” Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting); see\\nalso Zadeh, 902 F.3d at 499 & n.10 (Willett, J., concurring dubitante) (quoting\\nKisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)); 928 F.3d at 480 & n.61\\n(Willett, J., concurring in part and dissenting in part) (same), look no further\\nthan the majority opinion. The majority undoes the careful balance of interests\\nembodied in our doctrine of qualified immunity, stripping the officers’ defenses\\nwithout regard to the attendant social costs. 2\\n Now that is a one-sided approach to qualified immunity as a practical\\nmatter. And as Justices Scalia and Thomas have observed, it’s also a one-sided\\napproach to qualified immunity as an originalist matter: It abandons the\\ndefense without also reconsidering the source and scope of officers’ liability in\\nthe first place. See Crawford-El, 523 U.S. at 611–12 (Scalia, J., joined by\\nThomas, J., dissenting). To quote Justice Alito: “We will not engage in this\\nhalfway originalism.” Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,\\nCouncil 31, 138 S. Ct. 2448, 2470 (2018). See also id. (criticizing litigants for\\n“apply[ing] the Constitution’s supposed original meaning only when it suits\\nthem”); Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J.,\\n\\n\\n\\n\\n 2Those social costs are particularly stark today given widespread news of low officer\\nmorale and shortages in officer recruitment. See, e.g., Ashley Southall, When Officers Are\\nBeing Doused, Has Police Restraint Gone Too Far?, N.Y. TIMES, July 25, 2019, at A22; Martin\\nKaste & Lori Mack, Shortage of Officers Fuels Police Recruiting Crisis, NPR (Dec. 11, 2018,\\n5:05 AM), https://n.pr/2Qrbrnq; Jeremy Gorner, Morale, Policing Suffering in Hostile\\nClimate, Cops Say; ‘It’s Almost Like We’re the Bad Guys,’ Veteran City Officer Says, CHI. TRIB.,\\nNov. 27, 2016, at 1.\\n\\n\\n 63\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nconcurring in the judgment) (“[I]t would be freakish to single out the provision\\nat issue here for special treatment.”). 3\\n ***\\n Our circuit, like too many others, has been summarily reversed for\\nignoring the Supreme Court’s repeated admonitions regarding qualified\\nimmunity. There’s no excuse for ignoring the Supreme Court again today. And\\ncertainly none based on a principled commitment to originalism.\\n Originalism for plaintiffs, but not for police officers, is not principled\\njudging. Originalism for me, but not for thee, is not originalism at all. We\\nrespectfully dissent.\\n\\n\\n\\n\\n 3 In a footnote, Judge Willett notes that his criticism of the Supreme Court’s qualified\\nimmunity precedents is not based on originalist grounds. Ante, at 4 n.19. To our minds, that\\nmakes his criticism harder, not easier, to defend. If his concerns are based on practical and\\nnot originalist considerations, then he should address them to the Legislature, rather than\\nattack the Supreme Court as “one-sided.” Zadeh, 902 F.3d at 499 & n.10 (Willett, J.,\\nconcurring dubitante) (quoting Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting)). He\\nalso invokes Justice Thomas’s opinion in Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017). But\\nthat opinion cites Justice Scalia’s opinion in Crawford-El, which (as we explained above)\\nwarns qualified immunity skeptics not to engage in halfway originalism.\\n\\n 64\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nSTUART KYLE DUNCAN, Circuit Judge, joined by SMITH, OWEN, HO, and\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431895/\", \"author_raw\": \"E. SMITH, Circuit Judge, dissenting\"}, {\"author\": \"OLDHAM, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"OLDHAM, Circuit Judges, dissenting:\\n\\n The majority opinion overlooks or omits undisputed material facts\\nshowing that any reasonable officer would have viewed Ryan Cole as a severe\\nthreat. Before the shooting, the defendant officers: (1) were tracking a\\ndistraught suspect wandering through the woods armed with a loaded 9mm\\nsemi-automatic handgun; (2) who had earlier that morning off-loaded a cache\\nof weapons and ammunition at a friend’s house; (3) who had already refused to\\ngive up his pistol when confronted by the police; and (4) who had threatened to\\n“shoot anyone who came near him.” Cole did not dispute those facts and,\\nindeed, convinced the district court they were irrelevant. Joining Judge Jones’\\ndissent in full, I respectfully dissent on the additional grounds provided by\\nthese pre-encounter facts.\\n No one doubts some of the events on October 25, 2010—when the officers\\nviolently encountered Cole in the woods near Garland, Texas—are disputed.\\nThe question is whether those disputes are material. See, e.g., Bazan ex rel.\\nBazan v. Hidalgo Cty., 246 F.3d 481, 483 (5th Cir. 2001) (“threshold issue” on\\nqualified immunity appeal “is whether the facts the district judge concluded\\nare genuinely disputed are also material”). Judge Jones’ dissent compellingly\\nshows they are not: Resolving all disputes in Cole’s favor, the undisputed facts\\nstill show the officers violated no clearly established law. Jones Dissent at 2–\\n3, 11–22. The majority thus errs by concluding that “competing factual\\nnarratives” bar it from deciding qualified immunity. Maj. at 3.\\n I write separately to emphasize what led up to the shooting, and also to\\nexplain why those undisputed events provide further reasons to reverse. The\\nmajority and Judge Jones focus on the shooting itself, as did the district court.\\nBut the prelude to the shooting gives unavoidable context for evaluating the\\n\\n\\n\\n 65\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nofficers’ actions. 1 Surprisingly, the district court did not even analyze those\\nstage-setting facts, which it mistakenly deemed irrelevant. See Cole v. Hunter,\\nNo. 3:13-CV-02719-O, 2014 WL 266501, at *13 n.5 (N.D. Tex. Jan. 24, 2014);\\nCole v. Hunter, 68 F. Supp. 3d 628, 642–43 (N.D. Tex. 2014). So, to assess their\\nimpact, we must “undertake a cumbersome review of the record.” Johnson v.\\nJones, 515 U.S. 304, 319 (1995). That extra work is sometimes imperative, as\\nhere, “to ensure that the defendant’s right to an immediate appeal on the issue\\nof materiality is not defeated solely on account of the district court’s failure to\\narticulate its reasons for denying summary judgment.” Colston v. Barnhart,\\n146 F.3d 282, 285 (5th Cir. 1998), denying reh’g in 130 F.3d 96 (5th Cir. 1997).\\n This detailed record review (see Part I) compels two conclusions (see Part\\nII). First, the district court erred by excluding the undisputed events before the\\nshooting. That error—based on a misreading of our precedent—truncated the\\nqualified immunity analysis. That alone requires reversing the summary\\njudgment denial. Second, in light of those pre-encounter facts, the majority’s\\ninsistence that this is an “obvious case” collapses. Maj. at 16. Given what\\nconfronted the officers, the majority cannot say what they did was “obviously”\\nunlawful. The only thing obvious is that no case told the officers, clearly or\\notherwise, how to respond when they met Cole that morning, emerging from\\nthe woods with his finger on the trigger of a loaded gun.\\n By denying qualified immunity and making the officers run the gauntlet\\nof trial, the majority sets a precedent that “seriously undermines officers’\\nability to trust their judgment during those split seconds when they must\\n\\n\\n\\n\\n 1See, e.g., Kingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015) (courts “must judge\\nthe reasonableness of the force used from the perspective and with the knowledge of the\\ndefendant officer”); Tennessee v. Garner, 471 U.S. 1, 9 (1985) (whether a “particular” seizure\\nwas justified depends on “the totality of the circumstances”).\\n\\n 66\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ndecide whether to use lethal force.” Winzer v. Kaufman Cty., 916 F.3d 464, 482\\n(5th Cir. 2019) (Clement, J., dissenting).\\n I.\\n The majority begins “around 10:30 a.m.,” less than an hour before the\\nshooting. Maj. at 4. But events began to unfold much earlier. 2 Around 2 a.m.\\nthat morning, Cole knocked on the door of his friend, Eric Reed Jr., to show\\nhim “a 44 magnum revolver.” Awakened by the knocking, Eric Jr.’s father (Eric\\nSr.) left his room, saw Cole with the gun, and told him to leave. Eric Jr.\\nconvinced Cole to leave the revolver because “he [did not] need to be carrying\\na weapon around.”\\n Around 8 a.m., Eric Jr. gave his father Cole’s gun. Eric Sr., a retired\\nSachse police officer, then notified Officer Vernon Doggett, who came to the\\nReeds’. Eric Jr. told his father and Doggett that “[Cole] told him there were\\nmore guns on the side of the house.” There, they found “a double barrel shot\\ngun with some shot gun shells and what appeared to be a plastic bag with 9mm\\nbullets,” which Doggett secured. Eric Jr. also explained Cole “had broken up\\nwith his girlfriend and was going to kill himself and his girlfriend.”\\n Doggett was a resource officer for Sachse High School, where Cole and\\nhis girlfriend attended. He contacted Sergeant Garry Jordan, told him about\\nthe guns, and asked to meet at the school. Doggett reported that Cole “may be\\nat school with a 9mm handgun.” Another officer checked whether Cole was in\\nclass, and Jordan searched the parking areas for Cole.\\n\\n\\n\\n\\n 2 All of these facts come from reports and transcriptions of radio transmissions made\\nwithin a day or two of the incident. None come from affidavits submitted by the officers years\\nlater. And, as explained below, none of these pre-encounter facts was disputed by Cole or\\nanalyzed by the district court.\\n\\n\\n 67\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n Not finding him, Jordan went to Coles’ and spoke to his parents. He\\nlearned that, the previous evening, officers had responded to a disturbance\\nthere. Officers had found Cole’s father “holding Ryan down” because “he did\\nnot want [Cole] to leave the residence with the pocket knife that he had.” He\\nsaid “his son had a wild look in his eye and . . . had been smoking K2.” While\\nthe officers found there had been no assault, all agreed it was “a good idea for\\nCole to stay the night with a friend.” The Coles had not seen Ryan since then\\nbut reported he had “apparently returned home during the night and had\\nopened the gun safe, removed an unknown amount [sic] of weapons, and reset\\nthe combination.”\\n Meanwhile, Eric Jr. noticed Cole was back. He asked Cole if he was\\narmed and Cole showed him a “38 revolver” and a “9mm semiauto.” He\\nconvinced Cole to give him the revolver, but Cole told him he was not “getting\\nthe 9mm.” Cole also said that the 9mm was loaded and that he did not “wanna\\nuse it on [Eric Jr.]” Cole stated that “he would shoot anyone who came near\\nhim.” Cole left, and Eric Jr. called his father, who called the police.\\n Around 10:49 a.m., Officer Stephen Norris radioed “all available Sachse\\nofficers” to respond to the area of the Reed residence. He reported Cole was\\n“observed running south of the location with 3 weapons, one a loaded 9mm.”\\nHe also reported Cole was “irate and distraught and stated he would shoot\\nanyone who came near him.” Around the same time, Sachse Officer Michael\\nHunter was dispatched to assist Jordan at the Coles’, but on arrival he was\\ntold by Sachse Officer Carl Carson he was not needed. As Hunter was leaving,\\nhe heard Norris’ call advising Cole was “in the area . . . with a gun.” Hunter\\n\\n\\n\\n\\n 68\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nstated he “did not know the specifics of the call at this point,” but proceeded to\\nthe Reeds’ residence. In response to Norris’ call, Jordan also left the Coles’.\\n Sachse Officer Martin Cassidy also received Norris’ dispatch and went\\nto the area Norris indicated. He was given Cole’s description and advised that\\nCole was “armed with at least one handgun and possibly three.” Cassidy spoke\\nwith Norris on the phone about “the proximity of Armstrong Elementary\\nSchool to the location where [Cole] was last seen.” Cassidy therefore went to\\ncheck on the school and a nearby shopping center for any signs of Cole.\\n Meanwhile, Hunter arrived at the Reeds’, where he met Jordan and\\nCarson. Hunter overheard Eric Jr. say he had gotten “one gun” from Cole but\\nthat Cole had left “armed with a 9mm handgun.” “Hunter put [Cole’s]\\ndescription out to other officers,” and then he and Carson went to search for\\nCole. After speaking with the officers, Eric Jr. checked for more guns and found\\n“6 firearms around [his] house.”\\n Jordan then observed Officers Elliott and Sneed pass by in a patrol unit.\\nThose officers found Cole nearby. Elliott reported that “Sneed . . . advised\\n[Cole] to show his hands.” Instead, Cole “reached into his waist band and pulled\\na pistol and placed it to his head after about three steps and refused to obey\\nLt. Sneed[’s] commands.” When Jordan arrived, Sneed “drew his duty weapon\\nand yelled at [Cole] to drop the weapon,” but Cole refused. As Cole continued\\neastbound towards Highway 78, Sneed “warned [Cole] that [he] would shoot\\nhim in the back if he tried to get to the highway or walk toward any innocent\\nbystanders.” Cole “would occasionally turn his head and yell obscenities at\\n[Sneed].” Two other officers then parked “directly in front of [Cole’s] path.” To\\navoid them, Cole turned “northbound and began walking the railroad tracks.”\\nJordan was constantly updating dispatch about Cole’s movements. “Suddenly,\\n[Sneed] observed [Cole] cut eastbound and run up a hill and into the brush\\n\\n\\n 69\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ntowards Highway 78.” Dispatch reported that Cole was “off tracks coming\\nthrough tree lines towards [Highway] 78.”\\n Hunter, Carson, and Cassidy were monitoring Cole’s movements from\\nthe dispatches. They arrived separately at the part of Highway 78 where Cole\\nwas thought to be. Hunter noted “[Cole] appeared to be walking towards the\\nrailroad track,” and he advised Carson “[they] needed to go out to the highway\\nand intercept [him].” Cassidy advised Carson to get out his taser and follow\\nCassidy. Hunter “parked further south on Highway 78 as [he] figured [Cole]\\nwould be on the railroad track paralleling Highway 78 at about [his] location.”\\nHe guessed correctly. As Hunter “began to look for cover since [he] was out in\\nthe open,” Cole “walked out from the brush approximately 10 to 20 feet from\\n[Hunter].”\\n What followed was the shooting.\\n II.\\n Cole did not dispute these stage-setting events in opposing summary\\njudgment. To the contrary, he argued any “prior events” before the shooting\\nwere “irrelevant.” The district court agreed, excluding from its qualified\\nimmunity analysis the “events” from “earlier that morning,” Cole, 2014 WL\\n266501, at *13 n.5, and focusing solely on what happened “immediately before\\nand during the shooting.” Cole, 68 F. Supp. 3d at 644. That mistake skewed\\nthe district court’s analysis and provides yet another reason why we should\\nreverse.\\n First, the district court erred by excluding everything that happened\\nbefore the officers’ five-second encounter with Cole. That approach artificially\\ntruncates the qualified immunity analysis. In assessing qualified immunity,\\nwe “[c]onsider[ ] the specific situation confronting [officers],” City & Cty. of San\\nFrancisco v. Sheehan, 135 S. Ct. 1765, 1778 (2015), which “must be judged from\\n\\n\\n 70\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthe perspective of a reasonable officer on the scene[.]” Graham v. Connor, 490\\nU.S. 386, 396 (1989). A “reasonable officer” does not shape his decisions based\\nonly on the seconds when he confronts an armed suspect; instead, he acts based\\non all relevant circumstances, including the events leading up to the ultimate\\nencounter. See, e.g., Escobar v. Montee, 895 F.3d 387 (5th Cir. 2018) (courts\\nevaluate excessive force claims “from the perspective of a reasonable officer on\\nthe scene, paying ‘careful attention to the facts and circumstances of each\\nparticular case’”) (quoting Graham, 490 U.S. at 396). That is precisely how the\\nSupreme Court has instructed lower courts to assess whether force is\\nexcessive: The seminal case, Tennessee v. Garner, asks whether a seizure was\\njustified, based not only on the immediate seizure, but on “the totality of the\\ncircumstances” facing the officers. 471 U.S. 1, 9 (1985). And qualified immunity\\ncases, both from the Supreme Court and our court, routinely consider the\\nbackground facts that shaped an officer’s confrontation with a suspect in order\\nto evaluate the officer’s ultimate use of force. 3\\n The district court’s sole contrary authority was our statement in\\nRockwell v. Brown, 664 F.3d 985, 991 (5th Cir. 2011), that the excessive force\\ninquiry “is confined to whether the [officer or another person] was in danger at\\nthe moment of the threat.” But the district court overread Rockwell. We made\\nthat statement in Rockwell to reject the notion that officers’ negligence before\\n\\n\\n\\n\\n 3 See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 306 (2015) (assessing officer’s shooting of\\nsuspect during car chase beginning with events preceding the “18-minute chase”); Plumhoff\\nv. Rickard, 572 U.S. 765, 768–70 (2014) (assessing officer’s shooting of suspects in Memphis,\\nTennessee after lengthy car chase beginning with traffic stop in “West Memphis, Arkansas”);\\nBrosseau v. Haugen, 543 U.S. 194, 195 (2004) (evaluating officer’s shooting of fleeing suspect\\nbeginning with events “[o]n the day before the fracas”); Colston, 130 F.3d at 100 (determining\\nofficer’s failure to warn was not objectively unreasonable “[i]n light of the totality of the\\ncircumstances facing [the officer]”) (citing Garner, 471 U.S. at 10).\\n\\n\\n 71\\n\\n No. 14-10228 c/w No. 15-10045\\n\\na confrontation determines whether they properly used deadly force during the\\nconfrontation. See id. at 992–93 (rejecting argument that “circumstances\\nsurrounding a forced entry” bear on “the reasonableness of the officers’ use of\\ndeadly force”). The cases Rockwell cited say that plainly. See, e.g., Fraire v. City\\nof Arlington, 957 F.2d 1268, 1276 (5th Cir. 1992) (“[R]egardless of what had\\ntranspired up until the shooting itself, [the suspect’s] movements gave the\\nofficer reason to believe, at that moment, that there was a threat of physical\\nharm.”). 4 And the key case Rockwell quoted for the “moment-of-the-threat”\\npoint recognized that pre-confrontation events could “set the stage for what\\nfollowed in the field.” Bazan, 246 F.3d at 493.\\n By misreading our cases, the district court blinded itself to a rich vein of\\nfacts—facts Cole did not dispute below—that round out the picture of the\\nofficers’ violent encounter with Cole. At a minimum, that error alone requires\\nreversing the denial of summary judgment and remanding for reconsideration\\nof the officers’ actions in light of all relevant undisputed facts. See, e.g., White\\nv. Balderama, 153 F.3d 237, 242 (5th Cir. 1998) (concluding “limited remand”\\nwas appropriate given “lack of specificity in . . . district court’s order denying\\nsummary judgment on the basis of qualified immunity”).\\n Second, the undisputed pre-encounter events underscore why, contrary\\nto the majority’s view, this is far from an “obvious case.” Maj. at 16. An “obvious\\ncase,” the Supreme Court has explained, is one where an officer’s actions are\\n\\n\\n\\n\\n 4 Our cases continue to apply the Rockwell “moment-of-the-threat” principle in this\\nway. See, e.g., Shepherd v. City of Shreveport, 920 F.3d 278 (5th Cir. 2019) (explaining that,\\nbecause the excessive force inquiry is “confined to whether the officer was in danger at the\\nmoment of the threat[,] . . . [t]herefore, any of the officers’ actions leading up to the shooting\\nare not relevant”) (emphasis added) (internal quotes and citation omitted); Harris v. Serpas,\\n745 F.3d 767, 772–73 (5th Cir. 2014) (same) (discussing Rockwell).\\n\\n\\n 72\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nplainly unlawful under a generalized legal test, even if those actions do not\\ncontravene a “body of relevant case law.” Brosseau, 543 U.S. at 199 (citing Hope\\nv. Pelzer, 536 U.S. 730, 738 (2002)); see also, e.g., White v. Pauly, 137 S. Ct. 548,\\n552 (2017) (an “obvious case” means that “in the light of pre-existing law the\\nunlawfulness [of the officer’s actions] must be apparent”) (citing Anderson v.\\nCreighton, 483 U.S. 635, 640 (1987)) (cleaned up). As I understand the majority\\nopinion, it believes this is an obvious case because a jury could find that\\n(1) Cole “posed no threat” to the officers; (2) the officers fired “without\\nwarning”; and (3) the officers had “time and opportunity” to warn Cole, but did\\nnot. Maj. at 15. According to the majority, this scenario would plainly violate\\nGarner’s generalized test that an officer may not use deadly force to apprehend\\na suspect who “poses no immediate threat to the officer,” unless he warns the\\nsuspect “where feasible.” Id. (quoting Garner, 471 U.S. at 11–12).\\n Judge Jones’ dissent shows that, even resolving all disputed facts in\\nCole’s favor, the officers did not “obviously” violate Garner’s generalized test\\nduring the immediate shooting—that is, when in the space of five seconds at\\nmost, the officers met Cole at a distance of 10–20 feet as he backed out of the\\nwoods, still armed, and began to turn. Jones Dissent at 11–12. But if we include\\nthe undisputed facts leading up to the shooting, the notion that this is an\\n“obvious case” crumbles. To believe that, we would have to blind ourselves to\\nthe facts that (1) the officers were searching for an irate, distraught suspect;\\n(2) who was wandering through the woods armed with a loaded semi-automatic\\nhandgun; (3) who had refused police demands to turn over his weapon; (4) who\\nhad just that morning deposited a cache of weapons and ammunition at his\\nfriend’s house; and (5) who had threatened to “shoot anyone who came near\\nhim.” Those were the “totality of the circumstances” facing the officers, Colston,\\n130 F.3d at 100, and they were not disputed by Cole or the district court. Given\\n\\n\\n 73\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthose circumstances, the officers might have taken any number of actions when\\nthey met Cole in the woods that morning—they might have warned him, or\\nshot him, or shot in the air, or retreated, or remained frozen in place to see\\nwhat he would do. But to say it is “obvious” what they should have done is to\\ndenude the concept of an “obvious case” of any meaning.\\n Once stripped of the conceit that this is an “obvious case,” the majority\\nhas nothing left to justify its holding. The Supreme Court has bluntly told us\\nthat, outside the “obvious case” scenario, “Garner . . . do[es] not by [itself]\\ncreate clearly established law[.]” White v. Pauly, 137 S. Ct. at 552. And, of\\ncourse, the majority does not try to claim that the facts of Garner are anything\\nlike this case. In Garner, a police officer shot a fleeing, unarmed burglar in the\\nback of the head. The officer admitted he did not even suspect the burglar was\\narmed. See 471 U.S. at 3 (noting the officer “saw no sign of a weapon” at the\\ntime he shot and, afterwards, admitted “[he] was ‘reasonably sure’ and ‘figured’\\nthat [the suspect] was unarmed”). Apples and oranges does not capture the\\nchasm between that case and this one.\\n The majority does claim that our 1996 decision in Baker v. Putnal,\\n“clearly established” that the officers’ conduct here was unlawful. Maj. at 16\\n(citing 75 F.3d 190, 193 (5th Cir. 1996)). That is mistaken. In Baker, Officer\\nPutnal was patrolling a crowded beach area when gunfire erupted. Id.\\nWitnesses directed Putnal “toward a red car which they said contained the\\nshooters.” Id. He approached that car, but then saw two people sitting in\\nanother vehicle, a truck. Id. One of the truck’s passengers, Wendell Baker,\\n“turned in Putnal’s direction . . . [and] Putnal shot and killed [him].” Id. While\\na pistol was recovered from the truck, the plaintiffs denied Baker “was holding\\na pistol” when shot. Id. at 196. In other words, a jury could have found Baker\\nwas not holding a gun when Putnal killed him.\\n\\n\\n 74\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n It is not hard to grasp the key difference between Baker and this case.\\nWhen shot, Baker was possibly not even holding a gun. When shot, Cole was\\nundisputedly holding a gun. Imagine this conversation between a police officer\\nand the police department’s lawyer:\\n\\n OFFICER: I heard the Fifth Circuit just decided this Baker case. What\\n does it tell me I should or shouldn’t do in the field?\\n LAWYER: Well, Baker says you lose qualified immunity if you shoot\\n someone sitting in a car doing nothing more threatening\\n than just turning in your direction. In other words, someone\\n you don’t even see holding a weapon.\\n OFFICER: Makes sense. But tell me this. What if the person I approach\\n is holding a gun?\\n LAWYER: Well, Baker doesn’t speak clearly to that situation. I mean,\\n the jury in Baker could have found the guy didn’t even have\\n a gun in his hand when the officer shot him.\\n\\nIn other words, contrary to the majority’s view, Baker could not have\\n“established clearly that Cassidy’s and Hunter’s conduct . . . was unlawful”\\nwhen they shot Cole as he emerged from the woods with his finger on the\\ntrigger of a loaded gun. Maj. at 16. To guide officers in the field, a controlling\\nprecedent must be “sufficiently clear that every reasonable [officer] would have\\nunderstood that what he is doing violates” the Constitution. Mullenix, 136 S.\\nCt. at 308 (cleaned up). Baker does not come close.\\n The officers deserve qualified immunity on the excessive force claims. I\\nrespectfully dissent.\\n\\n\\n\\n\\n 75\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431895/\", \"author_raw\": \"OLDHAM, Circuit Judges, dissenting\"}]}"},"judge1":{"kind":"string","value":"STEWART"},"judge2":{"kind":"string","value":"HIGGINBOTHAM"},"judge3":{"kind":"string","value":"JONES"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"SMITH; DENNIS; CLEMENT; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM"},"judge_designations":{"kind":"string","value":"{\"STEWART\": \", Chief\", \"HIGGINBOTHAM\": \", Circuit\", \"JONES\": \", Circuit\", \"SMITH\": \", Circuit\", \"DENNIS\": \", Circuit\", \"CLEMENT\": \", Circuit\", \"OWEN\": \", Circuit\", \"ELROD\": \", Circuit\", \"SOUTHWICK\": \", Circuit\", \"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HIGGINSON\": \", Circuit\", \"COSTA\": \", Circuit\", \"WILLETT\": \", Circuit\", \"HO\": \", Circuit\", \"DUNCAN\": \", Circuit\", \"ENGELHARDT\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":8,"string":"8"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":6,"string":"6"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4654642/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Randy Cole v. Michael Hunter\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-21\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nREVISED August 21, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 14-10228 August 20, 2019\n Lyle W. Cayce\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\n\n\n Plaintiffs-Appellees\nv.\n\nCARL CARSON,\n\n Defendant-Appellant\n\n ****************\n\n\n No. 15-10045\n\n\nRANDY COLE; KAREN COLE; RYAN COLE,\n\n Plaintiffs-Appellees\nv.\n\nMICHAEL HUNTER; MARTIN CASSIDY,\n\n Defendants-Appellants\n\n\n Appeals from the United States District Court\n for the Northern District of Texas\n _______________________\n\n ON PETITION FOR REHEARING EN BANC FOLLOWING\n REMAND FROM THE UNITED STATES SUPREME COURT\n\n No. 14-10228 c/w No. 15-10045\n\n\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\nOLDHAM, Circuit Judges.\n\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\nJENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA\nHAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA,\nand KURT D. ENGELHARDT, Circuit Judges: 1\n\n The Supreme Court over several years has developed protection from\ncivil liability for persons going about their tasks as government workers in the\nform of immunity; not the absolute immunity enjoyed by prosecutors and\njudges, but a qualified immunity. Today we again repair to issues inherent in\nthe qualification. The doctrine protects at the earliest stage of litigation at\nwhich the defense’s application is determinable. To that end, courts have\ndeveloped procedures and pretrial practices, including appellate review of\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\nanswer under Rule 7(a) on order of the district court, particularized to address\nthe defense of immunity in a motion to dismiss or for summary judgment.\nWhen those processes do not yield pretrial resolution, as with competing\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\nfirst point at which its application is determinable. And in obeisance to\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\na jury—long a bastion interposed between the state and person, and assured\nby the Founders. And it signifies that today the district judge has multiple\n\n\n\n\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\nparticipating as members of the original panel.\n\n 2\n\n No. 14-10228 c/w No. 15-10045\n\nways to present fully the claims and defenses to a jury to ensure the\ngovernment worker a full draw upon his immunity defense, 2 including\nresolution of the competing factual narratives, one of which—or a meld of\nboth—may foreclose liability. 3\n In this case, police officers from Sachse, Texas argue that the district\ncourt should have sustained their defense of qualified immunity on their\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\nwhat happened. The officers filed dispositive pretrial motions in the district\ncourt, asserting the defense of qualified immunity. The district court denied\nthese motions, concluding that immunity could not be determined at this stage\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\n\n\n\n\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\n 3 In any treatment of the jury’s role in stepping between state-afforded process\n\nand an individual defendant, it bears emphasis that the district judge can impanel a\njury of at least six and as many as twelve members whose verdict, absent the parties’\nagreement otherwise, must be unanimous.\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\n\nHunter v. Cole, 137 S. Ct. 497 (2016).\n\n\n 3\n\n No. 14-10228 c/w No. 15-10045\n\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\nthe denial of summary judgment as to the excessive-force claim. Because the\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\nlight of Mullenix.\n We conclude that it will be for a jury, and not judges, to resolve the\ncompeting factual narratives as detailed in the district court opinion and the\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\nAmendment and Brady fabrication-of-evidence claims based on qualified\nimmunity; and return the case to the district court for trial and resolution of\nissues consistent with this opinion.\n I\n A.\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\nDepartment called available units to the neighboring town of Garland, Texas.\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\n\n\n\n\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\ncuriam)).\n\n 4\n\n No. 14-10228 c/w No. 15-10045\n\nreported to be walking in the neighborhood with a handgun. Officer Michael\nHunter responded by proceeding immediately to the Garland neighborhood. In\na statement given on the day of the incident, Hunter related that on arriving\nin the neighborhood, he overheard a civilian stating that Ryan had given up\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\nkeep his handgun. Hunter searched the area, and saw two officers following\nRyan, who was walking away from them holding his gun to his head,\napproaching a wooded area along Highway 78. Although told by officers that\nthings were under control, Hunter volunteered to go behind the wooded area\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\nalso present, join him.\n Four years later, after this litigation had commenced, Hunter for the first\ntime recalled that the civilian he had overheard had described an altercation\nwith Ryan in which Ryan had threatened him. He also then for the first time\nrecalled hearing police-radio transmissions indicating that officers were\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\na risk of serious harm to a great many innocent in the vicinity.” Hunter\notherwise learned nothing “that would cause [him] to believe [Ryan] was\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\nand, four years after the incident, he also raised the possibility that Ryan was\nusing suicide as a pretext to evade the police.\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\ninformation. On the day of the incident, Cassidy swore that he learned “this\n\n\n\n\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\n\n 5\n\n No. 14-10228 c/w No. 15-10045\n\nsubject had shown up at [a] residence with a handgun and had just recently\nbeen seen walking away.” But, four years later, after this litigation had\ncommenced, like Hunter, Cassidy remembered learning more, including that\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\nan order to drop his weapon; and might be headed for Sachse High School “to\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\nHighway 78.\n The three officers separately arrived at the side of Highway 78 at around\nthe same time. Hunter parked his motorbike and drew his duty weapon;\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\nThe officers started walking along the tree line. A steep embankment rose from\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\nembankment to approach the tree line. Cassidy and Hunter used both the edge\nof the embankment and the vegetation to conceal themselves as they walked.\nHunter also removed his white motorcycle helmet in order to be less\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\nascending to the tree line. Hunter heard movement in the brush, and signaled\nto his colleagues.\n What occurred next is disputed. Viewing the summary judgment\nevidence and drawing reasonable inferences in the light most favorable to the\nnon-movant Coles, the district court determined that a reasonable jury could\nfind the following: Ryan backed out from the tree line in front of Hunter and\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\n\n\n\n\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\nin a light most favorable to the Coles, the district court relied on the physical and\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\n\n\n 6\n\n No. 14-10228 c/w No. 15-10045\n\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\nat the Officers,” 9 and “never made a threatening or provocative gesture\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\nnot know that.\n Following the shooting, the three officers remained together at the scene.\nThe Coles allege that during this time the officers conspired to insulate Cassidy\nand Hunter from liability with a fabricated narrative in which Ryan was facing\nHunter and pointed his weapon at the officer, at which point Cassidy and\n\n\n\n\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\nhave been aware of the presence of the police officers prior to the time he was shot.”\n 8 Cole, 68 F. Supp. 3d at 644.\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\n\nargument that Cole did not know of the Officers’ presence.”).\n 10 Cole, 68 F. Supp. 3d at 645–46.\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\n\nduring which they could have called out to Cole, sufficient time to make a warning\naccording to Cole’s expert.\n 12 Cole, 68 F. Supp. 3d at 645.\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\n 14 Id. at 644.\n 15 Cole, 68 F. Supp. 3d at 644.\n 16 Id.\n\n\n 7\n\n No. 14-10228 c/w No. 15-10045\n\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\nDepartment arrived and took control of the scene, but did not follow the\nstandard procedure of separating witnesses to ensure independent\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\npolice station together. Later that day, the officers provided statements to\ninvestigators. Hunter stated that he had no chance to issue a command to\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\nstated that Ryan then turned towards Hunter and pointed his handgun at\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\ndefensively. 17\n The Dallas County District Attorney presented the officers’ narrative to\na grand jury, which no-billed the officers and charged Ryan with felony\naggravated assault of a public servant. As a result of the charge, Ryan,\nincapacitated in intensive care, was placed under house arrest. About a month\nafter the indictment, investigators received a ballistics report from the crime\nlab. The ballistics analysis, taken together with stippling observed around\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\n Ryan suffered permanent injuries, including cognitive impairment,\npartial paralysis, and other serious mental and physical disabilities.\n\n\n\n\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\nhis line of sight.\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\n\nreleased immediately around a discharging firearm.\n\n 8\n\n No. 14-10228 c/w No. 15-10045\n\n B.\n The Coles brought, inter alia, four Section 1983 claims against the\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\nagainst the use of excessive force arising from the shooting. Second, the Coles\nallege a violation of Ryan’s Fourteenth Amendment right against the\nimposition of false charges arising from the fabrication of evidence. Third, they\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\nviolation arising from the fabrication of evidence. The officers filed a motion to\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\ndefenses. The district court denied the motion in a January 2014 Memorandum\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\nqualified immunity defenses to the excessive-force claim. With that discovery\ncomplete, the two officers moved for summary judgment, rearguing qualified\nimmunity. The district court denied their motion and Cassidy and Hunter\nappealed.\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\ncourt affirmed the district court’s denial of summary judgment on the Coles’\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\n\n\n\n\n 19 The Coles filed an initial complaint in September 2012. The officers moved\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\nreply to the immunity defense. The district court then afforded the Coles opportunity\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\nThe officers then filed a second motion to dismiss.\n\n 9\n\n No. 14-10228 c/w No. 15-10045\n\nFourteenth Amendment false-charge claim, and reversed the denial as to the\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\nthe qualified immunity defense applicable for these claims. The officers\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\nSupreme Court granted certiorari, vacated the panel’s judgment, and\nremanded the case for further consideration in light of Mullenix v. Luna, 20\ndecided in the intervening time. 21\n On remand from the Supreme Court, recognizing that its jurisdiction\nwas limited to determining the materiality of factual disputes that the district\ncourt determined were genuine, the panel once again held that the\napplicability of qualified immunity for Cassidy and Hunter could not be\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\nremand order reached no further, the panel reinstated the Cole I opinion on\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\nrehearing en banc, which we granted. 24\n\n\n\n\n 20 136 S. Ct. 305 (2015).\n 21 As this court and others have acknowledged, when the Supreme Court\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\n\n378, 379 (5th Cir. 2019).\n 23 Id. at 341–42.\n 24 Cole, 915 F.3d at 379.\n\n\n\n\n 10\n\n No. 14-10228 c/w No. 15-10045\n\n II\n A.\n We hear this case on remand from the Court for further consideration in\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\nimposition of false charges. 26 Second, finding qualified immunity applicable,\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\nqualified immunity applicable, we reverse the denial of the motion to dismiss\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\nviolation. 28\n\n\n\n\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\ndetention can violate the Fourth Amendment not only when it precedes, but also\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\n“Manuel does not address the availability of due process challenges after a legal\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\n 26 See Cole I, 802 F.3d at 766–74.\n 27 See id. at 764–65.\n 28 See id. at 765.\n\n\n\n\n 11\n\n No. 14-10228 c/w No. 15-10045\n\n B.\n The qualified immunity inquiry includes two parts. In the first we ask\nwhether the officer’s alleged conduct has violated a federal right; in the second\nwe ask whether the right in question was “clearly established” at the time of\nthe alleged violation, such that the officer was on notice of the unlawfulness of\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\nviolation, or if the conduct did not violate law clearly established at the time. 30\n On an appeal of a denial of summary judgment on the basis of qualified\nimmunity, our jurisdiction is limited to examining the materiality of factual\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\nappeal we cannot challenge the district court’s assessments regarding the\nsufficiency of the evidence—that is, the question whether there is enough\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\nlack jurisdiction to resolve the genuineness of any factual disputes” and\n“consider only whether the district court erred in assessing the legal\nsignificance of the conduct that the district court deemed sufficiently supported\nfor purposes of summary judgment.” 33 Like the district court, we must view\nthe facts and draw reasonable inferences in the light most favorable to the\nplaintiff and ask whether the defendant would be entitled to qualified\n\n\n\n\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\n 30 Id.\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\n\nthe determination of qualified immunity would require the resolution of a genuinely\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\n\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\n 33 Id. (internal quotations omitted).\n\n\n\n\n 12\n\n No. 14-10228 c/w No. 15-10045\n\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\ncourt for failing to take the evidence and draw factual inferences in the non-\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\nemphasized that the requirement is no less binding “even when . . . a court\ndecides only the clearly-established prong of the standard.” 36 Within the\nlimited scope of our inquiry, review is de novo. 37\n As instructed, we turn to the guidance provided by the Supreme Court\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\nan officer who had shot and killed a fugitive in a car chase. This court had\ndecided that the officer violated the clearly established rule that deadly force\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\nsome threat of harm, but we had held the threat was not “sufficient.” The\nSupreme Court reversed our decision. It found that the rule we articulated\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\nnot reasonably derive an applicable rule to govern his or her conduct in the\nsituation. 41 Finding that we had defined the applicable rule with too much\n\n\n\n\n 34 Lytle, 560 F.3d at 409.\n 35 Tolan, 572 U.S. at 660.\n 36 Id. at 657.\n 37 Trent, 776 F.3d at 376.\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\n 39 Id. at 309.\n 40 Id. at 309–10.\n 41 Id.\n\n\n\n\n 13\n\n No. 14-10228 c/w No. 15-10045\n\n“generality,” 42 the Court reversed our holding that the officer had violated\nclearly established law. 43\n Under Mullenix, application of clearly established law is undertaken\nwith close attention to the relevant legal rule and the particular facts of the\ncase. Here, based on the facts taken in the light most favorable to the non-\nmovant Coles, and with reasonable inferences drawn in their favor, the district\ncourt determined there were genuine factual disputes as to Ryan’s and the\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\npose an immediate threat to the officers” when they opened fire. 44 It held that\n“on October 25, 2010, the date of the shooting, the law was clearly established”\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\nentire time at his own head and facing away from the officer, in an open\noutdoor area, and who was unaware of the officer’s presence because no\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\ndetail, the officers ask us to consider a different set of facts, but we cannot do\nso. We lack jurisdiction to reconsider the district court’s factual determinations\non an appeal from denial of summary judgment on qualified immunity.\n Tennessee v. Garner announced the principle that the use of deadly force\nis permitted only to protect the life of the shooting officer or others: “Where the\nsuspect poses no immediate threat to the officer and no threat to others, the\nharm resulting from failing to apprehend him does not justify the use of deadly\n\n\n\n\n 42 Id. at 311.\n 43 Id. at 312.\n 44 Cole, 68 F. Supp. 3d at 645.\n 45 Id. at 643.\n\n\n\n\n 14\n\n No. 14-10228 c/w No. 15-10045\n\nforce to do so.” 46 Garner also requires a warning before deadly force is used\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\nobvious cases, and this court has applied it in such cases, without dependence\non the fact patterns of other cases. 48\n The summary judgment facts, as determined by the district court, are\nthat Ryan posed no threat to the officers or others to support firing without\nwarning. The “Officers had the time and opportunity to give a warning and yet\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\nbeen facing him and pointing a gun at him.\n This case is obvious when we accept the facts as we must. It is also\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\nthis stage—was unlawful. For in Baker, members of the public told Officer\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\nduring spring break, that “someone had entered the crowd with a pistol-\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\n\n\n\n\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\n\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\n2012).\n 49 Cole, 68 F. Supp. 3d at 645.\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\n\n\n\n\n 15\n\n No. 14-10228 c/w No. 15-10045\n\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\npeople directed the officer to a car in which the gunman was supposedly\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\n[Baker] took no threatening action . . . as the officer approached the truck,”\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\nparties did not dispute that Putnal had been searching for a gunman, and that\na gun had been recovered from Baker’s seat, although they disputed whether\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\nIt was also undisputed that Baker was turning to face Putnal from his seat,\nalthough medical reports indicated from “the nature of the wounds . . . that\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\nThe district court granted Putnal qualified immunity, crediting his account\n\n\n\n\n 51 Id.\n 52 Id. at 198.\n 53 Id. at 193.\n 54 Id.\n 55 Id. at 198.\n 56 Id.\n 57 Id.\n 58 Id.\n 59 Id. at 193.\n\n\n\n\n 16\n\n No. 14-10228 c/w No. 15-10045\n\nthat he had fired in response to Baker turning and aiming the gun at him. 60\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\nposition of Baker’s gun, we found “simply too many factual issues to permit the\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\nreasons to find that [the officer’s] use of force was not excessive as a matter of\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\nto the nonmoving party,” we held that “[t]he number of shots and the nature\nof the wounds raise . . . more of a question of fact than a court may dispose of\non summary judgment.” 64\n The Supreme Court’s more recent qualified immunity decisions do not\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\nresponded to a call that a woman was behaving erratically with a knife and\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\napproached to within “striking distance” of a bystander in the driveway. 66 One\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\n\n\n\n\n 60 Id. at 197.\n 61 Id. at 198.\n 62 Id.\n 63 Id.\n 64 Id. at 198–99.\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\n 66 Id.; id. at 1154.\n\n\n\n\n 17\n\n No. 14-10228 c/w No. 15-10045\n\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\nHughes brought a Section 1983 excessive force claim against Kisela. 69\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\nrefusal to follow his repeated commands to drop the knife while within striking\ndistance of the bystander—obstinance that heightened the risk of immediate\nharm to another—the law did not clearly establish that the officer’s resort to\ndeadly force was unlawful. 70\n In this case, Officers Cassidy and Hunter found themselves in a search\nfor a suicidal teenager who they knew had already encountered fellow officers\nand walked away from them with his gun to his head, non-responsive, but\nwithout aggressive action. The circumstances of the officers’ encounter with\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\nthe officers, whether and how he turned and aimed his gun, and whether\nHunter warned Ryan to disarm himself. The district court here defined the\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\nviewing these disputes in a light most favorable to the Coles, concluded that a\nreasonable jury could find that Ryan made no threatening or provocative\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\nthe district court concluded that a reasonable jury could find Cassidy and\n\n\n\n\n 67 Id. at 1151.\n 68 Id.\n 69 Id.\n 70 Id. at 1153.\n\n\n 18\n\n No. 14-10228 c/w No. 15-10045\n\nHunter opened fire upon Ryan without warning, even though it was feasible.\nOn these facts, the officers’ conduct violates clearly established law.\n Rather than engage on the facts as we must take them at the summary\njudgment stage, the officers repeatedly argue from a different set of facts.\nWhile the district court found that Ryan was initially facing away from the\nofficers when they fired the first shot, the officers now describe his “armed turn\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\naimed at his own head and never pointed it at the officers, the officers now\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\nthen only momentarily turned back towards Ryan’s head at the moment he\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\npointed toward him—a story prosecutors accepted until a ballistics report\nexposed its impossibility). And although the district court found that Ryan was\nnot given an opportunity to disarm himself, the officers contend that he was\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\nargument to us as a full court, and in the teeth of those found by the district\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\nestablished law in 2010 put the officers’ response of firing in self-defense\nbeyond the law.\n The Coles and amicus Cato Institute are correct that it is beyond our\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\n“[I]f an excessive force claim turns on which of two conflicting stories best\ncaptures what happened on the street,” the caselaw “will not permit summary\n\n\n\n\n 19\n\n No. 14-10228 c/w No. 15-10045\n\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\nWhereas the officers will have a chance to present their factual narrative—and\nto question the Coles’—at trial, they cannot contest the facts in the current\nappeal. 72\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Randy Cole v. Michael Hunter\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-21\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nREVISED August 21, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 14-10228 August 20, 2019\\n Lyle W. Cayce\\nRANDY COLE; KAREN COLE; RYAN COLE, Clerk\\n\\n\\n Plaintiffs-Appellees\\nv.\\n\\nCARL CARSON,\\n\\n Defendant-Appellant\\n\\n ****************\\n\\n\\n No. 15-10045\\n\\n\\nRANDY COLE; KAREN COLE; RYAN COLE,\\n\\n Plaintiffs-Appellees\\nv.\\n\\nMICHAEL HUNTER; MARTIN CASSIDY,\\n\\n Defendants-Appellants\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n _______________________\\n\\n ON PETITION FOR REHEARING EN BANC FOLLOWING\\n REMAND FROM THE UNITED STATES SUPREME COURT\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n\\nBefore STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,\\nDENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES,\\nHIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and\\nOLDHAM, Circuit Judges.\\n\\nPATRICK E. HIGGINBOTHAM, Circuit Judge, joined by CARL E. STEWART,\\nChief Judge, and JAMES L. DENNIS, EDITH BROWN CLEMENT,\\nJENNIFER WALKER ELROD, LESLIE H. SOUTHWICK, CATHARINA\\nHAYNES, JAMES E. GRAVES, STEPHEN A. HIGGINSON, GREGG COSTA,\\nand KURT D. ENGELHARDT, Circuit Judges: 1\\n\\n The Supreme Court over several years has developed protection from\\ncivil liability for persons going about their tasks as government workers in the\\nform of immunity; not the absolute immunity enjoyed by prosecutors and\\njudges, but a qualified immunity. Today we again repair to issues inherent in\\nthe qualification. The doctrine protects at the earliest stage of litigation at\\nwhich the defense’s application is determinable. To that end, courts have\\ndeveloped procedures and pretrial practices, including appellate review of\\npretrial denials, otherwise interlocutory and unappealable, and a reply to an\\nanswer under Rule 7(a) on order of the district court, particularized to address\\nthe defense of immunity in a motion to dismiss or for summary judgment.\\nWhen those processes do not yield pretrial resolution, as with competing\\nfactual narratives, the full reach of qualified immunity gives way to a trial, the\\nfirst point at which its application is determinable. And in obeisance to\\nconstitutional mandate, the worker’s defense enjoys a right to the protection of\\na jury—long a bastion interposed between the state and person, and assured\\nby the Founders. And it signifies that today the district judge has multiple\\n\\n\\n\\n\\n 1 Judges Higginbotham and Clement, now Senior Judges of this court, are\\nparticipating as members of the original panel.\\n\\n 2\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nways to present fully the claims and defenses to a jury to ensure the\\ngovernment worker a full draw upon his immunity defense, 2 including\\nresolution of the competing factual narratives, one of which—or a meld of\\nboth—may foreclose liability. 3\\n In this case, police officers from Sachse, Texas argue that the district\\ncourt should have sustained their defense of qualified immunity on their\\npretrial motions to dismiss and for summary judgment. Ryan Cole and his\\nparents Karen and Randy (collectively “the Coles”) sue Officer Carl Carson,\\nLieutenant Martin Cassidy, and Officer Michael Hunter of the Sachse Police\\nDepartment under 42 U.S.C. § 1983. The Coles allege that the officers violated\\nRyan Cole’s Fourth and Fourteenth Amendment rights during an incident in\\nwhich Cassidy and Hunter shot Ryan without warning, and then lied about\\nwhat happened. The officers filed dispositive pretrial motions in the district\\ncourt, asserting the defense of qualified immunity. The district court denied\\nthese motions, concluding that immunity could not be determined at this stage\\nof the proceeding. In Cole I, a panel of our court affirmed the denial of summary\\njudgment as to the Coles’ Fourth Amendment excessive-force claim and the\\ndenial of the motion to dismiss the Coles’ Fourteenth Amendment false-charge\\nclaim, but reversed denials of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady claims attacking the alleged fabrication of evidence. 4\\n\\n\\n\\n\\n 2 See FED. R. CIV. P. 49; Fifth Circuit Civil Pattern Jury Instructions 10.3. See\\nalso McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000).\\n 3 In any treatment of the jury’s role in stepping between state-afforded process\\n\\nand an individual defendant, it bears emphasis that the district judge can impanel a\\njury of at least six and as many as twelve members whose verdict, absent the parties’\\nagreement otherwise, must be unanimous.\\n 4 Cole v. Carson (“Cole I”), 802 F.3d 752 (5th Cir. 2015), vacated sub nom.\\n\\nHunter v. Cole, 137 S. Ct. 497 (2016).\\n\\n\\n 3\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nThe Supreme Court vacated Cole I, and remanded for consideration in light of\\nits intervening decision in Mullenix v. Luna. 5 On remand, the panel affirmed\\nthe denial of summary judgment as to the excessive-force claim. Because the\\nColes’ other claims were unaffected by the reasoning of Mullenix, the panel\\nreinstated Cole I’s holdings on the fabrication-of-evidence claims. We reheard\\nthis case en banc to reconsider disposition of the Coles’ excessive-force claim in\\nlight of Mullenix.\\n We conclude that it will be for a jury, and not judges, to resolve the\\ncompeting factual narratives as detailed in the district court opinion and the\\nrecord as to the Coles’ excessive-force claim. Limited by our jurisdiction to the\\nmateriality of factual disputes, we AFFIRM the denial of summary judgment\\non this claim and DISMISS Cassidy and Hunter’s appeal. The Coles’ remaining\\nclaims are unaffected by the reasoning of Mullenix, and so, as in Cole I, we\\nAFFIRM denial of the motion to dismiss the Coles’ Fourteenth Amendment\\nfalse-charge claim; REVERSE denial of the motion to dismiss the Coles’ Fourth\\nAmendment and Brady fabrication-of-evidence claims based on qualified\\nimmunity; and return the case to the district court for trial and resolution of\\nissues consistent with this opinion.\\n I\\n A.\\n On October 25, 2010, at around 10:30 a.m., the Sachse Police\\nDepartment called available units to the neighboring town of Garland, Texas.\\nThere police were searching for Ryan Cole, a seventeen-year-old white male,\\n\\n\\n\\n\\n 5 Hunter v. Cole, 137 S. Ct. 497 (2016) (granting certiorari, vacating, and\\nremanding for consideration in light of Mullenix v. Luna, 136 S. Ct. 205 (2015) (per\\ncuriam)).\\n\\n 4\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nreported to be walking in the neighborhood with a handgun. Officer Michael\\nHunter responded by proceeding immediately to the Garland neighborhood. In\\na statement given on the day of the incident, Hunter related that on arriving\\nin the neighborhood, he overheard a civilian stating that Ryan had given up\\none of his guns, and that he had unsuccessfully tried to persuade Ryan to not\\nkeep his handgun. Hunter searched the area, and saw two officers following\\nRyan, who was walking away from them holding his gun to his head,\\napproaching a wooded area along Highway 78. Although told by officers that\\nthings were under control, Hunter volunteered to go behind the wooded area\\nand possibly intercept Ryan, and suggested that Officer Carl Carson, who was\\nalso present, join him.\\n Four years later, after this litigation had commenced, Hunter for the first\\ntime recalled that the civilian he had overheard had described an altercation\\nwith Ryan in which Ryan had threatened him. He also then for the first time\\nrecalled hearing police-radio transmissions indicating that officers were\\nprotecting nearby schools because of “[Ryan]’s dangerous conduct which posed\\na risk of serious harm to a great many innocent in the vicinity.” Hunter\\notherwise learned nothing “that would cause [him] to believe [Ryan] was\\nviolent or wanted to hurt anyone.” 6 Hunter understood that Ryan was suicidal,\\nand, four years after the incident, he also raised the possibility that Ryan was\\nusing suicide as a pretext to evade the police.\\n Meanwhile, Lieutenant Martin Cassidy had also heard the original\\ndispatcher’s summons. Cassidy called the Sachse Police Department for more\\ninformation. On the day of the incident, Cassidy swore that he learned “this\\n\\n\\n\\n\\n 6 In a 2014 declaration, Hunter stated that Cole refused a police officer’s order\\nto surrender his weapon. Hunter did not testify that he knew this fact at the time.\\n\\n 5\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nsubject had shown up at [a] residence with a handgun and had just recently\\nbeen seen walking away.” But, four years later, after this litigation had\\ncommenced, like Hunter, Cassidy remembered learning more, including that\\nRyan “had threatened to shoot anyone who tried to take his gun”; had refused\\nan order to drop his weapon; and might be headed for Sachse High School “to\\npossibly engage in violence.” Cassidy also decided to intercept Ryan on\\nHighway 78.\\n The three officers separately arrived at the side of Highway 78 at around\\nthe same time. Hunter parked his motorbike and drew his duty weapon;\\nCassidy also drew his firearm and advised Carson to be ready to use his taser.\\nThe officers started walking along the tree line. A steep embankment rose from\\nrailroad tracks to the area along Highway 78. Ryan would have to climb this\\nembankment to approach the tree line. Cassidy and Hunter used both the edge\\nof the embankment and the vegetation to conceal themselves as they walked.\\nHunter also removed his white motorcycle helmet in order to be less\\nconspicuous. Cassidy soon heard a message over the police radio: Ryan was\\nascending to the tree line. Hunter heard movement in the brush, and signaled\\nto his colleagues.\\n What occurred next is disputed. Viewing the summary judgment\\nevidence and drawing reasonable inferences in the light most favorable to the\\nnon-movant Coles, the district court determined that a reasonable jury could\\nfind the following: Ryan backed out from the tree line in front of Hunter and\\nCassidy, “unaware of the Officers’ presence.” 7 Ryan was holding his handgun\\n\\n\\n\\n\\n 7 Cole v. Hunter, 68 F. Supp. 3d 628, 645 (N.D. Tex. 2014). Viewing the evidence\\nin a light most favorable to the Coles, the district court relied on the physical and\\naudio evidence as interpreted by the Coles’ expert crime-scene reconstructionist\\n\\n\\n 6\\n\\n No. 14-10228 c/w No. 15-10045\\n\\npointed to his own head, where it remained. 8 “[Ryan] never pointed a weapon\\nat the Officers,” 9 and “never made a threatening or provocative gesture\\ntowards [the] Officers.” 10 “Officers [Cassidy and Hunter] had the time and\\nopportunity to give a warning” for Ryan to disarm himself. 11 However, the\\nofficers provided “no warning . . . that granted [Ryan] a sufficient time to\\nrespond,” 12 such that Ryan “was not given an opportunity to disarm himself\\nbefore he was shot.” 13 Hunter and Cassidy then shot Ryan multiple times.\\nOfficer Hunter’s first shot struck Ryan as he was oriented away from the\\nofficers at a 90-degree angle—that is, he was not facing Officer Hunter. 14\\nFollowing impact of the first shot, as Ryan’s body turned or fell towards\\nHunter, he shot him a second time. 15 As an involuntary reflex to being shot,\\nRyan pulled the trigger, shooting himself in his temple. 16 But the officers did\\nnot know that.\\n Following the shooting, the three officers remained together at the scene.\\nThe Coles allege that during this time the officers conspired to insulate Cassidy\\nand Hunter from liability with a fabricated narrative in which Ryan was facing\\nHunter and pointed his weapon at the officer, at which point Cassidy and\\n\\n\\n\\n\\nThomas Bevel who opined that “no evidence . . . would indicate Mr. Cole was or could\\nhave been aware of the presence of the police officers prior to the time he was shot.”\\n 8 Cole, 68 F. Supp. 3d at 644.\\n 9 Cole, 68 F. Supp. 3d at 644; id. at 645 (“[T]he evidence supports Plaintiffs’\\n\\nargument that Cole did not know of the Officers’ presence.”).\\n 10 Cole, 68 F. Supp. 3d at 645–46.\\n 11 Id. at 645. A reasonable jury could find the officers had up to five seconds\\n\\nduring which they could have called out to Cole, sufficient time to make a warning\\naccording to Cole’s expert.\\n 12 Cole, 68 F. Supp. 3d at 645.\\n 13 Id. 644–45 (“Cole was shot before he had an opportunity to disarm himself.”).\\n 14 Id. at 644.\\n 15 Cole, 68 F. Supp. 3d at 644.\\n 16 Id.\\n\\n\\n 7\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter fired on Ryan in defense. Eventually, members of the Garland Police\\nDepartment arrived and took control of the scene, but did not follow the\\nstandard procedure of separating witnesses to ensure independent\\nrecollections. Instead, Cassidy and Hunter were allowed to return to their\\npolice station together. Later that day, the officers provided statements to\\ninvestigators. Hunter stated that he had no chance to issue a command to\\nRyan. Cassidy and Carson, however, swore that, when Ryan backed out from\\nthe brush, they heard Hunter shout a warning to him. Hunter and Cassidy\\nstated that Ryan then turned towards Hunter and pointed his handgun at\\nHunter, at which point both officers—fearing for Hunter’s life—opened fire\\ndefensively. 17\\n The Dallas County District Attorney presented the officers’ narrative to\\na grand jury, which no-billed the officers and charged Ryan with felony\\naggravated assault of a public servant. As a result of the charge, Ryan,\\nincapacitated in intensive care, was placed under house arrest. About a month\\nafter the indictment, investigators received a ballistics report from the crime\\nlab. The ballistics analysis, taken together with stippling observed around\\nRyan’s head wound, made clear that Ryan had shot himself in the temple,\\nconfounding the officers’ account. 18 Dallas County prosecutors then dropped\\nthe aggravated assault charge, accepting Ryan’s plea to misdemeanor unlawful\\ncarry of a weapon, a $500 fine, and forfeiture of his handgun.\\n Ryan suffered permanent injuries, including cognitive impairment,\\npartial paralysis, and other serious mental and physical disabilities.\\n\\n\\n\\n\\n 17 Carson stated he could not see Cole’s movement because Hunter obstructed\\nhis line of sight.\\n 18 Stippling refers to a discoloration of the skin caused by hot gases and residue\\n\\nreleased immediately around a discharging firearm.\\n\\n 8\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The Coles brought, inter alia, four Section 1983 claims against the\\nofficers. First, they allege a violation of Ryan’s Fourth Amendment right\\nagainst the use of excessive force arising from the shooting. Second, the Coles\\nallege a violation of Ryan’s Fourteenth Amendment right against the\\nimposition of false charges arising from the fabrication of evidence. Third, they\\nallege a violation of Ryan’s Fourth Amendment right against unreasonable\\nseizures arising from the fabrication of evidence. Fourth, they allege a Brady\\nviolation arising from the fabrication of evidence. The officers filed a motion to\\ndismiss these claims under Rule 12(b)(6), asserting qualified immunity\\ndefenses. The district court denied the motion in a January 2014 Memorandum\\nOpinion and Order. 19 Carson alone appealed the denial of the motion to dismiss\\nthe Coles’ three fabrication-of-evidence claims based on qualified immunity.\\nThe district court stayed these fabrication-of-evidence claims pending Carson’s\\nappeal, allowing the Coles limited discovery against Cassidy and Hunter’s\\nqualified immunity defenses to the excessive-force claim. With that discovery\\ncomplete, the two officers moved for summary judgment, rearguing qualified\\nimmunity. The district court denied their motion and Cassidy and Hunter\\nappealed.\\n The officers’ appeals were consolidated. In 2015, in Cole I, a panel of this\\ncourt affirmed the district court’s denial of summary judgment on the Coles’\\nexcessive-force claim, affirmed denial of the motion to dismiss the Coles’\\n\\n\\n\\n\\n 19 The Coles filed an initial complaint in September 2012. The officers moved\\nto dismiss or in the alternative requested that the district court order a Rule 7(a)\\nreply to the immunity defense. The district court then afforded the Coles opportunity\\nto file a Rule 7 reply or amended complaint. The Coles filed an amended complaint.\\nThe officers then filed a second motion to dismiss.\\n\\n 9\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nFourteenth Amendment false-charge claim, and reversed the denial as to the\\nColes’ Fourth Amendment and Brady fabrication-of-evidence claims, finding\\nthe qualified immunity defense applicable for these claims. The officers\\npetitioned the Supreme Court for a writ of certiorari. In November 2016, the\\nSupreme Court granted certiorari, vacated the panel’s judgment, and\\nremanded the case for further consideration in light of Mullenix v. Luna, 20\\ndecided in the intervening time. 21\\n On remand from the Supreme Court, recognizing that its jurisdiction\\nwas limited to determining the materiality of factual disputes that the district\\ncourt determined were genuine, the panel once again held that the\\napplicability of qualified immunity for Cassidy and Hunter could not be\\ndetermined at the summary judgment stage. 22 Finding the Supreme Court’s\\nremand order reached no further, the panel reinstated the Cole I opinion on\\nthe Coles’ three fabrication-of-evidence claims. 23 The officers moved for\\nrehearing en banc, which we granted. 24\\n\\n\\n\\n\\n 20 136 S. Ct. 305 (2015).\\n 21 As this court and others have acknowledged, when the Supreme Court\\ngrants, vacates, and remands (“GVRs”) a case, it does not make a decision on the\\nmerits of the case nor dictate a particular outcome. See Diaz v. Stephens, 731 F.3d\\n370, 378 (5th Cir. 2013); Kenemore v. Roy, 690 F.3d 639, 641–42 (5th Cir. 2012); see\\nalso Texas v. United States, 798 F.3d 1108, 1116 (D.C. Cir. 2015); In re Whirlpool\\nCorp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013);\\nGonzalez v. Justices of Mun. Court of Bos., 420 F.3d 5, 7 (1st Cir. 2005).\\n 22 Cole v. Carson, 905 F.3d 334, 347 (5th Cir. 2018), reh’g granted, 915 F.3d\\n\\n378, 379 (5th Cir. 2019).\\n 23 Id. at 341–42.\\n 24 Cole, 915 F.3d at 379.\\n\\n\\n\\n\\n 10\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n II\\n A.\\n We hear this case on remand from the Court for further consideration in\\nlight of Mullenix. We do not reach issues unaddressed by the mandate on\\nremand, 25 and so we hold as in Cole I with respect to the Coles’ three\\nfabrication-of-evidence claims. First, we affirm the district court’s denial of the\\nmotion to dismiss the Coles’ Fourteenth Amendment claim regarding the\\nimposition of false charges. 26 Second, finding qualified immunity applicable,\\nwe reverse the denial of the motion to dismiss the Coles’ claim that the alleged\\nfabrication of evidence violated the Fourth Amendment. 27 Lastly, finding\\nqualified immunity applicable, we reverse the denial of the motion to dismiss\\nthe Coles’ claim that the alleged fabrication of evidence entailed a Brady\\nviolation. 28\\n\\n\\n\\n\\n 25 Appellants argue that the Supreme Court’s 2017 decision in Manuel v. City\\nof Joliet, 137 S. Ct. 911 (2017), changes the legal landscape and justifies revisiting\\nthe Coles’ Fourteenth Amendment false-charge claim. Manuel holds that “pretrial\\ndetention can violate the Fourth Amendment not only when it precedes, but also\\nwhen it follows, the start of legal process in a criminal case,” and, therefore, that the\\nplaintiff in that case “stated a Fourth Amendment claim when he sought relief not\\nmerely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial\\ndetention.” Manuel, 137 S. Ct. at 918–19. It does not hold that the Fourth Amendment\\nprovides the exclusive basis for a claim asserting pre-trial deprivations based on\\nfabricated evidence. We have already so determined in Jauch v. Choctaw County:\\n“Manuel does not address the availability of due process challenges after a legal\\nseizure, and it cannot be read to mean, as Defendants contend, that only the Fourth\\nAmendment is available to pre-trial detainees.” Jauch v. Choctaw Cty., 874 F.3d 425,\\n429 (5th Cir. 2017), cert. denied sub nom. Choctaw Cty. v. Jauch, 139 S. Ct. 638 (2018).\\n 26 See Cole I, 802 F.3d at 766–74.\\n 27 See id. at 764–65.\\n 28 See id. at 765.\\n\\n\\n\\n\\n 11\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n B.\\n The qualified immunity inquiry includes two parts. In the first we ask\\nwhether the officer’s alleged conduct has violated a federal right; in the second\\nwe ask whether the right in question was “clearly established” at the time of\\nthe alleged violation, such that the officer was on notice of the unlawfulness of\\nhis or her conduct. 29 The officer is entitled to qualified immunity if there is no\\nviolation, or if the conduct did not violate law clearly established at the time. 30\\n On an appeal of a denial of summary judgment on the basis of qualified\\nimmunity, our jurisdiction is limited to examining the materiality of factual\\ndisputes the district court determined were genuine. 31 “[I]n an interlocutory\\nappeal we cannot challenge the district court’s assessments regarding the\\nsufficiency of the evidence—that is, the question whether there is enough\\nevidence in the record for a jury to conclude that certain facts are true.” 32 “[W]e\\nlack jurisdiction to resolve the genuineness of any factual disputes” and\\n“consider only whether the district court erred in assessing the legal\\nsignificance of the conduct that the district court deemed sufficiently supported\\nfor purposes of summary judgment.” 33 Like the district court, we must view\\nthe facts and draw reasonable inferences in the light most favorable to the\\nplaintiff and ask whether the defendant would be entitled to qualified\\n\\n\\n\\n\\n 29 Tolan v. Cotton, 572 U.S. 650, 655–56 (2014) (per curiam).\\n 30 Id.\\n 31 Lytle v. Bexar Cty., Tex., 560 F.3d 404, 408 (5th Cir. 2009); see also id. (“If\\n\\nthe determination of qualified immunity would require the resolution of a genuinely\\ndisputed fact, then that fact is material and we lack jurisdiction over the appeal.”).\\n 32 Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Kinney v. Weaver,\\n\\n367 F.3d 337, 347 (5th Cir. 2004) (en banc)).\\n 33 Id. (internal quotations omitted).\\n\\n\\n\\n\\n 12\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nimmunity on those facts. 34 The Supreme Court has summarily reversed this\\ncourt for failing to take the evidence and draw factual inferences in the non-\\nmovants’ favor at the summary judgment stage. 35 In doing so, the Court\\nemphasized that the requirement is no less binding “even when . . . a court\\ndecides only the clearly-established prong of the standard.” 36 Within the\\nlimited scope of our inquiry, review is de novo. 37\\n As instructed, we turn to the guidance provided by the Supreme Court\\nin Mullenix. In that case, the Court reviewed a denial of qualified immunity to\\nan officer who had shot and killed a fugitive in a car chase. This court had\\ndecided that the officer violated the clearly established rule that deadly force\\nwas prohibited “against a fleeing felon who does not pose a sufficient threat of\\nharm to the officer or others.” 38 The officer in Mullenix reasonably perceived\\nsome threat of harm, but we had held the threat was not “sufficient.” The\\nSupreme Court reversed our decision. It found that the rule we articulated\\nlacked a referent to define the “sufficiency” of threats. 39 Precedents provided a\\n“hazy legal backdrop,” at best. 40 Given these deficient sources, an officer could\\nnot reasonably derive an applicable rule to govern his or her conduct in the\\nsituation. 41 Finding that we had defined the applicable rule with too much\\n\\n\\n\\n\\n 34 Lytle, 560 F.3d at 409.\\n 35 Tolan, 572 U.S. at 660.\\n 36 Id. at 657.\\n 37 Trent, 776 F.3d at 376.\\n 38 Mullenix, 136 S. Ct. at 308–09 (internal quotation marks omitted).\\n 39 Id. at 309.\\n 40 Id. at 309–10.\\n 41 Id.\\n\\n\\n\\n\\n 13\\n\\n No. 14-10228 c/w No. 15-10045\\n\\n“generality,” 42 the Court reversed our holding that the officer had violated\\nclearly established law. 43\\n Under Mullenix, application of clearly established law is undertaken\\nwith close attention to the relevant legal rule and the particular facts of the\\ncase. Here, based on the facts taken in the light most favorable to the non-\\nmovant Coles, and with reasonable inferences drawn in their favor, the district\\ncourt determined there were genuine factual disputes as to Ryan’s and the\\nofficers’ conduct, upon which a reasonable jury could find “[Ryan] . . . did not\\npose an immediate threat to the officers” when they opened fire. 44 It held that\\n“on October 25, 2010, the date of the shooting, the law was clearly established”\\nthat “shooting a mentally disturbed teenager, who was pointing a gun the\\nentire time at his own head and facing away from the officer, in an open\\noutdoor area, and who was unaware of the officer’s presence because no\\nwarning was given prior to the officer opening fire, was unlawful.” 45 As we will\\ndetail, the officers ask us to consider a different set of facts, but we cannot do\\nso. We lack jurisdiction to reconsider the district court’s factual determinations\\non an appeal from denial of summary judgment on qualified immunity.\\n Tennessee v. Garner announced the principle that the use of deadly force\\nis permitted only to protect the life of the shooting officer or others: “Where the\\nsuspect poses no immediate threat to the officer and no threat to others, the\\nharm resulting from failing to apprehend him does not justify the use of deadly\\n\\n\\n\\n\\n 42 Id. at 311.\\n 43 Id. at 312.\\n 44 Cole, 68 F. Supp. 3d at 645.\\n 45 Id. at 643.\\n\\n\\n\\n\\n 14\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nforce to do so.” 46 Garner also requires a warning before deadly force is used\\n“where feasible,” 47 a critical component of risk assessment and de-escalation.\\nThe Supreme Court has repeatedly stated that this rule can be sufficient in\\nobvious cases, and this court has applied it in such cases, without dependence\\non the fact patterns of other cases. 48\\n The summary judgment facts, as determined by the district court, are\\nthat Ryan posed no threat to the officers or others to support firing without\\nwarning. The “Officers had the time and opportunity to give a warning and yet\\nchose to shoot first instead.” 49 This is an obvious case. Indeed, Officer Hunter\\nconceded that he would have had no basis to fire upon Ryan unless Ryan had\\nbeen facing him and pointing a gun at him.\\n This case is obvious when we accept the facts as we must. It is also\\ninformed by our precedent. Before 2010, Baker v. Putnal established clearly\\nthat Cassidy’s and Hunter’s conduct—on the facts as we must take them at\\nthis stage—was unlawful. For in Baker, members of the public told Officer\\nMichael Putnal, a police officer patrolling a crowded Galveston beach area\\nduring spring break, that “someone had entered the crowd with a pistol-\\ngripped shotgun.” 50 Minutes later, Officer Putnal heard gunfire and saw the\\n\\n\\n\\n\\n 46 Tennessee v. Garner, 471 U.S. 1, 11 (1985).\\n 47 Id. at 11–12; see also Colston v. Barnhart, 130 F.3d 96, 100 (5th Cir. 1997).\\n 48 See White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Mason v.\\n\\nLafayette City-Parish Consol. Gov’t, 806 F.3d 268, 277–78 (5th Cir. 2015); cf. Hope v.\\nPelzer, 536 U.S. 730, 741 (2002); Newman v. Guedry, 703 F.3d 757, 764 (5th Cir.\\n2012).\\n 49 Cole, 68 F. Supp. 3d at 645.\\n 50 Baker v. Putnal, 75 F.3d 190, 193 (5th Cir. 1996).\\n\\n\\n\\n\\n 15\\n\\n No. 14-10228 c/w No. 15-10045\\n\\ncrowd scurrying. 51 There was “a good deal of confusion on the beach.” 52 Two\\npeople directed the officer to a car in which the gunman was supposedly\\nsitting. 53 Putnal then saw Wendell Baker Jr. and another man sitting in a\\ntruck parked on the beach. 54 The parties disputed what happened next. Putnal\\nstated he saw Baker loading a magazine into a handgun, that he warned Baker\\nto freeze or drop the gun, that Baker instead turned the gun upon Putnal, at\\nwhich point Putnal fired, killing Baker. 55 However, witnesses “state[d] that\\n[Baker] took no threatening action . . . as the officer approached the truck,”\\nthat Putnal issued no warning to Baker, and that “Baker . . . may have barely\\nhad an opportunity to see Putnal before [the officer] fired his gun.” 56 The\\nparties did not dispute that Putnal had been searching for a gunman, and that\\na gun had been recovered from Baker’s seat, although they disputed whether\\nand how Baker had been holding it, that is, whether he pointed it at Putnal. 57\\nIt was also undisputed that Baker was turning to face Putnal from his seat,\\nalthough medical reports indicated from “the nature of the wounds . . . that\\nBaker . . . was not facing Putnal when he was shot.” 58 Baker’s survivors sued\\nthe officer, bringing, inter alia, a Fourth Amendment excessive-force claim. 59\\nThe district court granted Putnal qualified immunity, crediting his account\\n\\n\\n\\n\\n 51 Id.\\n 52 Id. at 198.\\n 53 Id. at 193.\\n 54 Id.\\n 55 Id. at 198.\\n 56 Id.\\n 57 Id.\\n 58 Id.\\n 59 Id. at 193.\\n\\n\\n\\n\\n 16\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nthat he had fired in response to Baker turning and aiming the gun at him. 60\\nOn appeal, we reversed and remanded the excessive-force claim for trial. 61\\nRecognizing the dispute as to the officer’s warning, Baker’s turn, and the\\nposition of Baker’s gun, we found “simply too many factual issues to permit the\\nBakers’ § 1983 claims to be disposed of on summary judgment.” 62 “Chaos on\\nthe beach and Baker[’s] mere motion to turn and face Putnal are not compelling\\nreasons to find that [the officer’s] use of force was not excessive as a matter of\\nlaw.” 63 Viewing the facts and drawing inferences “in the light most favorable\\nto the nonmoving party,” we held that “[t]he number of shots and the nature\\nof the wounds raise . . . more of a question of fact than a court may dispose of\\non summary judgment.” 64\\n The Supreme Court’s more recent qualified immunity decisions do not\\nshift this analysis. In Kisela v. Hughes, police officers in Tucson, Arizona\\nresponded to a call that a woman was behaving erratically with a knife and\\nthat she had been hacking at a tree. 65 When officers arrived on scene, the\\nsuspect, Amy Hughes, emerged from a house holding a large kitchen knife, and\\napproached to within “striking distance” of a bystander in the driveway. 66 One\\nof the officers, Andrew Kisela, whose further approach was impeded by a chain-\\nlink fence, repeatedly ordered Hughes to drop the knife, but Hughes did not\\n\\n\\n\\n\\n 60 Id. at 197.\\n 61 Id. at 198.\\n 62 Id.\\n 63 Id.\\n 64 Id. at 198–99.\\n 65 Kisela v. Hughes, 138 S. Ct. 1148, 1151 (2018) (per curiam).\\n 66 Id.; id. at 1154.\\n\\n\\n\\n\\n 17\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nfollow his commands. 67 Kisela then fired on Hughes through the fence. 68\\nHughes brought a Section 1983 excessive force claim against Kisela. 69\\nReviewing a denial of qualified immunity to Kisela, the Supreme Court held\\nthat, in light of the officer’s limited knowledge of the situation and Hughes’s\\nrefusal to follow his repeated commands to drop the knife while within striking\\ndistance of the bystander—obstinance that heightened the risk of immediate\\nharm to another—the law did not clearly establish that the officer’s resort to\\ndeadly force was unlawful. 70\\n In this case, Officers Cassidy and Hunter found themselves in a search\\nfor a suicidal teenager who they knew had already encountered fellow officers\\nand walked away from them with his gun to his head, non-responsive, but\\nwithout aggressive action. The circumstances of the officers’ encounter with\\nRyan, as in Baker, remain heavily disputed: as to whether Ryan was aware of\\nthe officers, whether and how he turned and aimed his gun, and whether\\nHunter warned Ryan to disarm himself. The district court here defined the\\nfacts in a 21-page opinion, finding genuine disputes regarding these facts, and,\\nviewing these disputes in a light most favorable to the Coles, concluded that a\\nreasonable jury could find that Ryan made no threatening or provocative\\ngesture to the officers and posed no immediate threat to them. Unlike in Kisela,\\nwhere the officer repeatedly warned an armed suspect to disarm, yet that\\nsuspect, facing the officer and hearing his warnings, refused to disarm, here\\nthe district court concluded that a reasonable jury could find Cassidy and\\n\\n\\n\\n\\n 67 Id. at 1151.\\n 68 Id.\\n 69 Id.\\n 70 Id. at 1153.\\n\\n\\n 18\\n\\n No. 14-10228 c/w No. 15-10045\\n\\nHunter opened fire upon Ryan without warning, even though it was feasible.\\nOn these facts, the officers’ conduct violates clearly established law.\\n Rather than engage on the facts as we must take them at the summary\\njudgment stage, the officers repeatedly argue from a different set of facts.\\nWhile the district court found that Ryan was initially facing away from the\\nofficers when they fired the first shot, the officers now describe his “armed turn\\ntowards Officer Hunter.” While the district court found that Ryan kept his gun\\naimed at his own head and never pointed it at the officers, the officers now\\nsuggest that Ryan’s gun was “below his head,” moving towards Hunter, and\\nthen only momentarily turned back towards Ryan’s head at the moment he\\nfired (ignoring Hunter’s sworn statement that he fired only when the gun was\\npointed toward him—a story prosecutors accepted until a ballistics report\\nexposed its impossibility). And although the district court found that Ryan was\\nnot given an opportunity to disarm himself, the officers contend that he was\\nwarned to disarm before being shot. “Had the Officers delayed longer, reaction\\ntime lag would have precluded their ability to stop [Ryan] from shooting Officer\\nHunter,” they argue. Based on this alternative set of facts, echoed again in oral\\nargument to us as a full court, and in the teeth of those found by the district\\ncourt, the officers now contend Ryan posed a “deadly threat,” and no clearly\\nestablished law in 2010 put the officers’ response of firing in self-defense\\nbeyond the law.\\n The Coles and amicus Cato Institute are correct that it is beyond our\\njurisdiction to consider the officers’ set of facts, a narrative evolving over time.\\n“[I]f an excessive force claim turns on which of two conflicting stories best\\ncaptures what happened on the street,” the caselaw “will not permit summary\\n\\n\\n\\n\\n 19\\n\\n No. 14-10228 c/w No. 15-10045\\n\\njudgment in favor of the defendant official. . . . [A] trial must be had.” 71\\nWhereas the officers will have a chance to present their factual narrative—and\\nto question the Coles’—at trial, they cannot contest the facts in the current\\nappeal. 72\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3686,"cells":{"id":{"kind":"number","value":4654643,"string":"4,654,643"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Jeffery Stallworth v. Dewey Bryant"},"decision_date":{"kind":"string","value":"2019-08-21"},"docket_number":{"kind":"string","value":"18-60487"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-60487 Document: 00515086236 Page: 1 Date Filed: 08/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-60487\\n FILED\\n August 21, 2019\\n Lyle W. Cayce\\n Clerk\\n\\nJEFFERY A. STALLWORTH,\\n\\n Plaintiff,\\n\\nversus\\n\\nGOVERNOR DEWEY PHILLIP \\\"PHIL\\\" BRYANT; et al.,\\n\\n Defendants,\\n\\nversus\\n\\nJOSH HARKINS; DEAN KIRBY; PHILLIP MORAN; CHRIS CAUGHMAN;\\nNICKEY BROWNING; JOHN A. POLK; MARK BAKER; ALEX MONSOUR,\\n\\n Respondents–Appellants,\\n\\nversus\\n\\nJACKSON MUNICIPAL AIRPORT AUTHORITY;\\nBOARD OF COMMISSIONERS OF THE JACKSON MUNICIPAL AIRPORT\\nAUTHORITY, each in his or her official capacity as a Commissioner on the\\nBoard of Commissioners of the Jackson Municipal Airport Authority;\\nDOCTOR ROSIE L. T. PRIDGEN, in her official capacity as a Commissioner\\non the Board of Commissioners of the Jackson Municipal Airport Authority;\\nREVEREND JAMES L. HENLEY, JR., in his official capacity as a\\nCommissioner on the Board of Commissioners of the Jackson Municipal\\nAirport Authority;\\nLAWANDA D. HARRIS, in her official capacity as a Commissioner on the\\nBoard of Commissioners of the Jackson Municipal Airport Authority;\\nVERNON W. HARTLEY, SR., in his official capacity as a Commissioner on\\nthe Board of Commissioners of the Jackson Municipal Airport Authority;\\n\\n Case: 18-60487 Document: 00515086236 Page: 2 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nEVELYN O. REED, in her official capacity as a Commissioner on the Board\\nof Commissioners of the Jackson Municipal Airport Authority;\\nDOCTOR ROSIE L. T. PRIDGEN, individually as citizens of the City of\\nJackson, MS, on behalf of themselves and all others similarly situated;\\nLAWANDA D. HARRIS, individually as citizens of the City of Jackson, MS,\\non behalf of themselves and all others similarly situated;\\nVERNON W. HARTLEY, SR., individually as citizens of the City of Jackson,\\nMS, on behalf of themselves and all others similarly situated;\\nEVELYN O. REED, individually as citizens of the City of Jackson, MS, on\\nbehalf of themselves and all others similarly situated;\\nJAMES L. HENLEY, JR., individually as citizens of the City of Jackson, MS,\\non behalf of themselves and all others similarly situated,\\n\\n Intervenors–Appellees.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n This is a discovery dispute stemming from a challenge to recent changes\\nto the governance of the Jackson-Medgar Wiley Evers International Airport\\n(“airport”) via Mississippi Senate Bill 2162 (“S.B. 2162”). The Jackson Munici-\\npal Airport Authority (“JMAA”), the Board of Commissioners of JMAA\\n(“Board”), and each member of the Board, in their official and individual capac-\\nities, sued the Governor, Lieutenant Governor, and the two counties in which\\nthe airport is located, claiming that S.B. 2162 violates, inter alia, the Four-\\nteenth Amendment’s Equal Protection Clause and the equal protection com-\\nponent of the Mississippi Constitution.\\n 2\\n\\n Case: 18-60487 Document: 00515086236 Page: 3 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\n Plaintiffs served document subpoenas on eight state legislators (the\\n“Legislators”) who are not parties to the case, seeking communications between\\nthe Legislators “and any person, including members of the Mississippi legis-\\nlature and any governmental agency, body or its representative(s)” about\\nS.B. 2162 or the airport. Claiming legislative privilege, the Legislators refused\\nto comply. The magistrate judge (“MJ”) granted in part the plaintiffs’ motion\\nto enforce the subpoenas, ordering the Legislators to produce a privilege log\\nand any relevant information previously shared with third parties. The dis-\\ntrict court affirmed. Because the plaintiffs lack standing, we vacate and\\nremand with instruction to dismiss the equal protection claim.\\n\\n I.\\n A.\\n In April 2016, the Mississippi Legislature enacted S.B. 2162, 1 amending\\nthe Airport Authorities Law, MISS. CODE ANN. §§ 61-3-1 et seq., and trans-\\nferring control of the airport from the five-member JMAA to a new nine-\\nmember board, the Jackson Metropolitan Area Airport Authority. 2 Under the\\nnew arrangement, Jackson officials appoint only two commissioners; the other\\nseven are appointed by state officials and officials from neighboring counties. 3\\nThat structure is unique: Mississippi law grants every other municipality\\n\\n\\n\\n 1 S.B. 2162 was introduced by five of the appellants—Senators Josh Harkins, Dean\\nKirby, Philip Moran, Chris Caughman, and Nickey Browning. It was referred to a committee\\nchaired by another appellant, Senator John A. Polk, and then to committees chaired by\\nappellants Mark Baker and Alex Monsour in the Mississippi House of Representatives.\\n 2 The City of Jackson owns the land on which the Airport is located.\\n 3 The nine commissioners on the new board are the Adjutant General of the Mis-\\nsissippi National Guard; the Executive Director of the Mississippi Development Authority;\\none commissioner each appointed by the Jackson Mayor, the Jackson City Council, the Board\\nof Supervisors of Madison County, the Board of Supervisors of Rankin County, and the Lieu-\\ntenant Governor of Mississippi; and two commissioners appointed by the Governor of Mis-\\nsissippi and who must reside in Jackson. MISS. CODE ANN. § 61-3-6.\\n 3\\n\\n Case: 18-60487 Document: 00515086236 Page: 4 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nexclusive authority to create an airport authority and appoint its commis-\\nsioners. 4 Defendant Governor Bryant signed S.B. 2162 on May 4, 2016.\\n\\n Shortly before the bill took effect, JMAA, its Board, the JMAA Commis-\\nsioners, the Jackson Mayor, and the Jackson City Council intervened in a suit\\nfiled by a Jackson resident to enjoin enforcement of S.B. 2162. The only per-\\ntinent count of the intervenor complaint is Count VII, in which the members\\nof the JMAA Board—suing in their individual capacities “on behalf of them-\\nselves and all others similarly situated”—assert that S.B. 2162 violates the\\nFourteenth Amendment’s Equal Protection Clause and the equal protection\\ncomponent of the Mississippi Constitution’s Due Process Clause. 5\\n\\n Urging that S.B. 2162 effects “an illegal dilution of voting and other\\nrights of the citizens of Jackson, Mississippi,” the plaintiffs claim a represen-\\ntational injury. They posit that Jackson “officials, including the Mayor and the\\nCity Council, currently select the JMAA Board,” but “[S.B.] 2162 strips those\\nofficials of control” of their airport, leaving “the City’s Mayor and Council . . .\\nwith a single appointee each to the new, nine[-]person board.” The plaintiffs\\n\\n\\n\\n 4 Compare MISS. CODE ANN. § 61-3-5 (“Any municipality . . . by resolution, may create\\na public body, corporate and politic, to be known as a municipal airport authority . . . . Upon\\nthe adoption of a resolution creating a municipal airport authority, the governing body of the\\nmunicipality . . . shall appoint five (5) persons as commissioners of the authority.”), with id.\\n§ 61-3-6 (“The Jackson Metropolitan Area Airport Authority is created . . . to manage, control\\nand enforce all necessary and beneficial matters pertaining to the operation of Jackson-\\nMedgar Wiley Evers International Airport and Hawkins Field Airport. The authority shall\\nhave the same powers and duties as a municipal airport authority under this chapter . . . .\\nThe Jackson Metropolitan Area Airport Authority shall consist of the following nine (9)\\ncommissioners . . . .”).\\n 5 Though the Mississippi Constitution has no equal protection clause, “Mississippi\\nfinds an equal protection component in its Due Process Clause, MISS. CONST. art. III, § 14.”\\nJeffrey Jackson et al., 3 ENCYCLOPEDIA MISS. LAW § 19:49 (2d ed. 2016); see also, e.g.,\\nMcGowan v. State, 185 So. 826, 829 (Miss. 1939) (“Equal protection, under the law, is one of\\nthe corner stones of the American system of government, and experience admonishes us that\\nthese constitutional rights should be graven with a pen of iron upon the rock forever.”\\n(internal quotation marks omitted)).\\n 4\\n\\n Case: 18-60487 Document: 00515086236 Page: 5 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nopine that “every other municipality in the State of Mississippi” retains the\\nexclusive “discretion to create a municipal airport authority to manage, con-\\ntrol, and operate any airports owned by those municipalities.” In other words,\\nJackson’s “governing officials have less opportunity and ability as compared to\\nthe other appointing officials to exercise discretion in matters of appointing an\\nairport authority.” The plaintiffs conclude that S.B. 2162 “has the practical\\neffect of foreclosing the City’s electorate from exercising their right to elect\\ngoverning officials with unencumbered discretion to create a municipal airport\\nauthority and appoint commissioners to manage, control and operate [it].”\\n\\n The plaintiffs further contend that S.B. 2162 altered governance of the\\nairport for race-based reasons. Before S.B. 2162, all five commissioners were\\nblack, which, the plaintiffs aver, made the airport “the only airport in the State\\nof Mississippi managed and operated by a Board comprised solely of African\\nAmericans.” They further allege that the City of Jackson is approximately 79%\\nblack and 18% Caucasian, which roughly matched the racial composition of\\nJackson officials when S.B. 2162 was enacted. 6 The State of Mississippi,\\nhowever, is 37% black and 59% Caucasian. 7 Under the new arrangement, the\\nGovernor and Lieutenant Governor select five of the nine commissioners. Two\\nmore are selected by Madison County and Rankin County officials, and both of\\nthose counties are majority Caucasian. 8 Taking control of the airport away\\nfrom Jackson, the intervenors conclude, “demonstrates the City and its citizens\\nand taxpayers have been invidiously excluded because of race, in whole or in\\n\\n\\n 6 See U.S. DEP’T COMMERCE, Mississippi: 2010—Census of Population and Housing 90\\n(Sept. 2012), available at https://www.census.gov/prod/cen2010/cph-1-26.pdf. The plaintiffs\\nassert that Jackson was governed by “five African Americans and two Caucasians” when S.B.\\n2162 was enacted.\\n 7 Id. at 84.\\n 8 Madison County is 57% Caucasian and 38% black, and Rankin County is 77% Cau-\\ncasian and 19% black. Id.\\n 5\\n\\n Case: 18-60487 Document: 00515086236 Page: 6 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\npart, from any control of its Airport by [S.B.] 2162.”\\n\\n B.\\n During discovery, the JMAA and its five commissioners, suing in their\\nofficial capacities (“JMAA plaintiffs”), served document subpoenas on the eight\\nLegislators. Additionally, four of the five commissioners suing in their indi-\\nvidual capacities (“individual plaintiffs”) served identical subpoenas on four of\\nthe same Legislators. 9 The subpoenas requested, in relevant part, communi-\\ncations between the Legislators “and any person, including members of the\\nMississippi legislature and any governmental agency, body or its represen-\\ntative(s)” about S.B. 2162 or the Airport. 10 The plaintiffs averred that the sub-\\npoenas sought information relevant to “establishing an equal protection viola-\\ntion under federal law.”\\n\\n The Legislators refused to comply, specifically objecting to Request 3.\\nThey first asserted that any responsive information would be relevant only to\\nthe equal protection claim brought by the individual plaintiffs and not to the\\nJMAA plaintiffs’ claims. The Legislators secondly maintained the requested\\n“communications between members of the Mississippi Legislature and govern-\\nment officials regarding [S.B.] 2162’s consideration and passage . . . per-\\ntain[ing] to the Legislators’ thought processes or the communications they\\n\\n\\n 9Those Legislators include Representative Baker and Senators Kirby, Caughman,\\nand Harkins. The relevant board members are Pridgen, Harris, Hartley, and Reed.\\n 10 Request 3 reads in full as follows:\\n 3. Any and all documents, including but not limited to, email communications\\n and text messages and any documents attached thereto (stored or otherwise)\\n exchanged by (sent to and/or from) you and any person, including members of\\n the Mississippi legislature and any governmental agency, body or its represen-\\n tative(s) regarding Senate Bill 2162 and/ or [sic] the Jackson-Medgar Evers\\n International Airport from January 1, 2014 to present. The responsive infor-\\n mation is requested to be produced on a disk, in single page Tiff files, a sum-\\n mation load file, and OCR.\\n 6\\n\\n Case: 18-60487 Document: 00515086236 Page: 7 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nhad”—would be protected by the legislative privilege.\\n\\n The JMAA plaintiffs and the individual plaintiffs moved to enforce the\\nsubpoenas, and the MJ partially granted the motion. Observing that “motiva-\\ntions behind [an] allegedly discriminatory law are relevant in determining\\nwhether an [equal protection] violation has occurred,” the MJ found that\\nRequest 3 “appears reasonably tailored to seek documents which may shed\\nlight on the Legislators’ motivations in drafting and passing [S.B.] 2162.” The\\nMJ did not distinguish between the relevance of the information sought by the\\nJMAA plaintiffs’ and the individual plaintiffs’ subpoenas.\\n\\n Regarding the privilege claim, the MJ determined that any applicable\\nprivilege was waived for “documents or information otherwise protected by the\\nlegislative privilege . . . shared with third parties” and ordered the Legislators\\nto produce such materials. The MJ also faulted the Legislators for invoking\\nlegislative privilege “without producing an accompanying privilege log,” as\\nFederal Rule of Civil Procedure 26(b)(5)(A)(ii) requires. He ordered them to\\n“produce a privilege log identifying” documents responsive to Request 3 but\\nwithheld under a claim of privilege so that the plaintiffs could challenge privi-\\nlege claims over particular documents. The district court upheld the discovery\\norder 11 but, predicting this interlocutory appeal, ruled that “the [L]egislators\\nwill not have to comply with the [MJ’s] opinion until the mandate issues from\\nNew Orleans or Washington, D.C.”\\n\\n II.\\n We generally review a subpoena enforcement order for abuse of discre-\\ntion. United States v. Zadeh, 820 F.3d 746, 750 (5th Cir. 2016). We review\\n\\n\\n\\n The district court did not distinguish between the eight subpoenas issued by the\\n 11\\n\\nJMAA plaintiffs and the four subpoenas issued by the individual plaintiffs.\\n 7\\n\\n Case: 18-60487 Document: 00515086236 Page: 8 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nde novo a district court’s determination of controlling law, In re Avantel, S.A.,\\n343 F.3d 311, 318 (5th Cir. 2003), as well as questions of subject-matter jur-\\nisdiction, Houston Ref., L.P. v. United Steel, Paper & Forestry, Rubber, Mfg.,\\n765 F.3d 396, 400 (5th Cir. 2014).\\n\\n III.\\n The parties agree that the subpoenas seek information relating to the\\nequal protection claim brought as Count VII. As we have explained, that count\\nwas brought by only the individual plaintiffs—that is, the JMAA board mem-\\nbers suing in their individual capacities. Thus, to the extent the order required\\nthe Legislators to comply with Request 3 in the subpoenas issued by the JMAA\\nplaintiffs, the district court abused its discretion in ordering the Legislators to\\ncomply with a production order unrelated to those plaintiffs’ claims.\\n\\n That leaves the four subpoenas issued on behalf of plaintiffs Pridgen,\\nHarris, Hartley, and Reed—suing “in their individual capacities and as citizens\\nand taxpayers of the City of Jackson and the State of Mississippi”—and served\\non Representative Baker and Senators Kirby, Caughman, and Harkins. The\\nLegislators contend that because the individual plaintiffs were without stand-\\ning to pursue the equal protection claim, the district court lacked jurisdiction\\nto enforce their subpoenas. We agree.\\n\\n A.\\n “[F]ederal courts are confined to adjudicating actual ‘cases’ and ‘contro-\\nversies.’” Henderson v. Stalder, 287 F.3d 374, 378 (5th Cir. 2002) (quoting U.S.\\nCONST. art. III, § 2, cl. 1). “One element of the case-or-controversy requirement\\nis that [plaintiffs], based on their complaint, must establish that they have\\nstanding to sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997). “The Judicial\\nBranch may not ‘accept for adjudication claims of constitutional violation . . .\\n\\n 8\\n\\n Case: 18-60487 Document: 00515086236 Page: 9 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nwhere the claimant has not suffered cognizable injury.” 12\\n\\n To have standing, “the plaintiff[s] must have suffered an injury in fact”—\\n“an invasion of a legally protected interest” 13—that is “concrete, particularized,\\nand actual or imminent; fairly traceable to the challenged action; and\\nredressable by a favorable ruling.” 14 “Since they are not mere pleading require-\\nments but rather an indispensable part of the plaintiff’s case, each element\\nmust be supported . . . with the manner and degree of evidence required at the\\nsuccessive stages of litigation.” Barber, 860 F.3d at 352 (citation omitted).\\n\\n “At the pleading stage, general factual allegations of injury resulting\\nfrom the defendant’s conduct may suffice” to establish standing. Defs. of Wild-\\nlife, 504 U.S. at 561. “Thus, we will not dismiss for lack of standing if we rea-\\nsonably can infer from the plaintiffs’ general allegations” that they have\\nstanding. Hotze v. Burwell, 784 F.3d 984, 992 (5th Cir. 2015). But the “infer-\\nence must be reasonable . . . .” Id. “A federal court is powerless to create its\\nown jurisdiction by embellishing otherwise deficient allegations of standing.”\\nId. at 993 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155–56 (1990)). It\\nfollows that “if the plaintiff does not carry his burden clearly to allege facts\\ndemonstrating that he is a proper party to invoke judicial resolution of the\\ndispute, then dismissal for lack of standing is appropriate.” Id. (internal\\nquotation marks and citation omitted).\\n\\n Because whether the plaintiffs have standing implicates whether the\\n\\n\\n\\n 12 Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017) (quoting Valley Forge Christian\\nColl. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)).\\n 13 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks\\nomitted).\\n 14Texas v. United States, 809 F.3d 134, 150 (5th Cir. 2015) (quoting Clapper v.\\nAmnesty Int’l USA, 568 U.S. 398, 409 (2013)), aff’d by an equally divided court, 136 S. Ct.\\n2271 (2016) (mem.).\\n 9\\n\\n Case: 18-60487 Document: 00515086236 Page: 10 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\ncourt has jurisdiction, even nonparty witnesses refusing to comply with a dis-\\ncovery order may challenge standing. 15 That is because “the subpoena power\\nof a court cannot be more extensive than its jurisdiction.” U.S. Catholic\\nConference, 487 U.S. at 76. Thus, “if a district court does not have subject-\\nmatter jurisdiction over the underlying action, and the process was not issued\\nin aid of determining that jurisdiction, then the process is void.” 16\\n\\n B.\\n The Legislators claim that the individual plaintiffs lack standing be-\\ncause they have not “establish[ed] that effective and meaningful participation\\nin the affairs of the airport constitutes a legally protected interest.” The Leg-\\nislators maintain that the district court lacked subject matter jurisdiction over\\nthe equal protection claim and thus had no authority to act on the document\\nsubpoenas. The plaintiffs respond that the collateral order doctrine is too nar-\\nrow to allow the Legislators “to raise, for the first time, arguments for dismissal\\nof claims advanced against the parties in the underlying case,” a retort that is\\ninconsistent with United States Catholic Conference, 478 U.S. at 76.\\n\\n The individual plaintiffs lack standing to bring their equal protection\\nclaim because they have failed to demonstrate injury to a legally protected\\ninterest. They assert that S.B. 2162 transgresses the “right” of Jackson voters\\n“to elect governing officials with unencumbered discretion to create a\\n\\n\\n\\n 15 See U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76\\n(1988) (“hold[ing] that a nonparty witness can challenge the court’s lack of subject-matter\\njurisdiction in defense of a civil contempt citation, notwithstanding the absence of a final\\njudgment in the underlying action”).\\n 16Id.; see also Port Drum Co. v. Umphrey, 852 F.2d 148, 150 n.2 (5th Cir. 1988) (ob-\\nserving that “[i]n some instances, such as an appeal from a civil contempt order, non-parties\\nand former parties may utilize the rules to challenge on-going proceedings . . . because non-\\nparties cannot seek to challenge the proceedings once the original suit is at an end” (citing\\nU.S. Catholic Conference, 487 U.S. 72)).\\n 10\\n\\n Case: 18-60487 Document: 00515086236 Page: 11 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nmunicipal airport authority and appoint commissioners to manage, control and\\noperate [it].” Put differently, they allege that SB 2162’s “selection scheme . . .\\ndeprives the Individual Plaintiffs and the citizens of the City of Jackson of\\neffective and meaningful participation in the affairs of [the airport.]”\\n\\n The plaintiffs cite no precedent supporting their theory that Jackson\\nvoters have a right to elect officials with the exclusive authority to select muni-\\ncipal airport commissioners. Though voters may have standing to challenge\\nstate action that effectively dilutes their ability to select their representa-\\ntives, 17 that is not the injury the individual plaintiffs press here. Their theory,\\ninstead, is that S.B. 2162 withdraws the ability of their elected officials to\\ncontrol, exclusively, the composition of the airport’s governing board.\\n\\n That Jackson “has been singled out by [S.B.] 2162” does not establish\\nthat a legally protected interest of the individual plaintiffs has been violated.\\nCities are creatures of states, and though their authority to do so is not un-\\nlimited, 18 states may, under some circumstances, treat different cities dif-\\nferently. 19 That the State of Mississippi has enacted a different method for the\\nappointment of certain municipal airport commissioners and not others does\\nnot mean that plaintiffs, as residents and taxpayers of Jackson, have suffered\\na concrete and particularized, actual and imminent injury to interests\\n\\n\\n\\n\\n 17See, e.g., Baker v. Carr, 369 U.S. 186, 207–08 (1962) (holding that plaintiffs had\\nstanding to challenge state redistricting maps as diluting the efficacy of their votes).\\n 18 Gomillion v. Lightfoot, 364 U.S. 339, 342–44 (1960) (acknowledging “the breadth\\nand importance of . . . the State’s political power” over “its political subdivisions” but noting\\nthat a state does not have “plenary power to manipulate in every conceivable way, for every\\nconceivable purpose, the affairs of its municipal corporations”).\\n 19 See, e.g., White v. Gautier Util. Dist. Jackson Cty. (In re Validation of $7,800,000\\nCombined Util. Sys. Revenue Bond), 465 So.2d 1003, 1016–17 (Miss. 1985) (explaining that\\ncertain laws applicable to only one local political unit can be consistent with the Mississippi\\nConstitution).\\n 11\\n\\n Case: 18-60487 Document: 00515086236 Page: 12 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nprotected by the Equal Protection Clause. 20\\n\\n C.\\n During oral argument, the individual plaintiffs pressed an alternative\\nsupposed injury: That they will lose their positions as volunteer JMAA com-\\nmissioners if S.B. 2162 is implemented. They insist that volunteers are treated\\nas public employees under some aspects of Mississippi law and that other\\ncourts of appeals have generally found standing where a government volun-\\nteer’s position is threatened by government action. 21\\n\\n Although, at this stage of litigation, we may draw reasonable inferences\\nfrom the pleadings to decide standing, the plaintiffs ask us to infer an injury\\nwell beyond the facts pleaded. They sued in their individual capacities as citi-\\nzens of Jackson and as purported class representatives. In Count VII, they\\npleaded only one injury: That S.B. 2162 violates the Equal Protection Clause\\nbecause it “singles out and excludes [Jackson] and its governing officials from\\n\\n\\n 20Nothing in this opinion should be construed to assess the merits of Count V of the\\nintervenors’ complaint, which alleges that S.B. 2162 is a local law that violates Article 4, § 87\\nof the Mississippi Constitution. Because the subpoenas concern only Count VII, the equal\\nprotection claim, Count V is not before us on this interlocutory appeal.\\n 21Plaintiffs pointed to Hyland v. Wonder, 972 F.2d 1129 (9th Cir. 1992), and Barton\\nv. Clancey, 632 F.3d 9 (1st Cir. 2011), during oral argument. Hyland held that a volunteer\\nat a municipal juvenile probation department could bring a First Amendment retaliation\\nclaim and “that a volunteer position, like other governmental benefits and privileges, can\\nonly be denied in a manner that comports with the First Amendment.” Hyland, 972 F.2d\\nat 1136. In Barton, the court surveyed law from multiple circuits addressing whether depri-\\nvation of a position as a government volunteer triggers First Amendment scrutiny. See\\nBarton, 632 F.3d at 24–26 (noting that the Second, Third, Seventh, Ninth, and Tenth Circuits\\nhave indicated that in some circumstances, a volunteer position may be a valuable govern-\\nment benefit protected by the First Amendment).\\n Neither Hyland nor Barton shores up the intervenors’ failure to plead any facts\\ndemonstrating that S.B. 2162 violates the Equal Protection Clause by jeopardizing the indi-\\nvidual plaintiffs’ positions as volunteer JMAA commissioners. And, in any event, “Equal\\nProtection and [First Amendment] cases call for different injury-in-fact analyses because the\\ninjuries protected . . . are different.” Barber, 860 F.3d at 356 (internal quotation marks and\\ncitation omitted).\\n 12\\n\\n Case: 18-60487 Document: 00515086236 Page: 13 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nexercising the right . . . to determine how the City’s airport will be managed\\nand operated.”\\n\\n The complaint never suggests—as counsel did during oral argument—\\nthat the individual commissioners are volunteers reimbursed for some\\nexpenses, that Mississippi law recognizes volunteers as public employees in\\nsome contexts, and that the combination might give them standing to challenge\\nS.B. 2162 as a violation of the Equal Protection Clause. “Because we also can-\\nnot create our own jurisdiction by embellishing otherwise deficient allegations\\nof standing,” Hotze, 784 F.3d at 996 (cleaned up), the individual plaintiffs lack\\nstanding to bring Count VII. Accordingly, the district court had neither subject\\nmatter jurisdiction over the individual plaintiffs’ equal protection claim nor\\nauthority to order compliance with the document subpoenas seeking informa-\\ntion about that claim.\\n\\n It follows that the order requiring the Legislators to comply with the\\nsubpoenas issued on behalf of both the JMAA plaintiffs and the individual\\nplaintiffs by producing a privilege log and communications with third parties\\nis VACATED. This matter is REMANDED with instruction to DISMISS with-\\nout prejudice, for want of subject-matter jurisdiction, Count VII of the inter-\\nvenors’ complaint.\\n\\n\\n\\n\\n 13\\n\\n Case: 18-60487 Document: 00515086236 Page: 14 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431896/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}, {\"author\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:\\n I concur in the opinion but with the understanding that we do not today\\nreach the question of whether the commissioners’ loss of their jobs at the hand\\nof alleged racial discrimination inevitably fails the critical threshold of\\nstanding.\\n We decide only that these commissioners proceeding in their individual\\ncapacity fail to meet the initial thresholding of standing for want of pleading.\\nIt is evident from the record that under Mississippi law, five commissioners\\noversee Jackson-Medgar Evans International, which generates millions of\\ndollars of revenue each year and is one of the state’s principal airports. 1 The\\ncommissioners are appointed by the Mayor of Jackson City and serve five year\\nterms. 2 They define the airport’s strategic goals, as well as hire and supervise\\na chief executive officer to achieve those goals. 3 As a result, the commissioners\\nwield substantial power over the airport of the state’s capital and are afforded\\nsignificant stature within their communities. This position of status and\\nauthority may be a sufficient injury for their standing, an issue we do not\\nreach.\\n\\n\\n\\n\\n 1 Mississippi Code §§ 61-3-5 (2019); see ROA.565 ¶ 54.\\n 2 Id.\\n 3 See ROA.563–64 ¶¶ 46–48.\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431896/\", \"author_raw\": \"PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"SMITH"},"judge3":{"kind":"string","value":"SOUTHWICK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HIGGINBOTHAM\": \", Circuit\", \"SMITH\": \", Circuit\", \"SOUTHWICK\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4654643/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jeffery Stallworth v. Dewey Bryant\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-21\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-60487 Document: 00515086236 Page: 1 Date Filed: 08/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 18-60487\n FILED\n August 21, 2019\n Lyle W. Cayce\n Clerk\n\nJEFFERY A. STALLWORTH,\n\n Plaintiff,\n\nversus\n\nGOVERNOR DEWEY PHILLIP \"PHIL\" BRYANT; et al.,\n\n Defendants,\n\nversus\n\nJOSH HARKINS; DEAN KIRBY; PHILLIP MORAN; CHRIS CAUGHMAN;\nNICKEY BROWNING; JOHN A. POLK; MARK BAKER; ALEX MONSOUR,\n\n Respondents–Appellants,\n\nversus\n\nJACKSON MUNICIPAL AIRPORT AUTHORITY;\nBOARD OF COMMISSIONERS OF THE JACKSON MUNICIPAL AIRPORT\nAUTHORITY, each in his or her official capacity as a Commissioner on the\nBoard of Commissioners of the Jackson Municipal Airport Authority;\nDOCTOR ROSIE L. T. PRIDGEN, in her official capacity as a Commissioner\non the Board of Commissioners of the Jackson Municipal Airport Authority;\nREVEREND JAMES L. HENLEY, JR., in his official capacity as a\nCommissioner on the Board of Commissioners of the Jackson Municipal\nAirport Authority;\nLAWANDA D. HARRIS, in her official capacity as a Commissioner on the\nBoard of Commissioners of the Jackson Municipal Airport Authority;\nVERNON W. HARTLEY, SR., in his official capacity as a Commissioner on\nthe Board of Commissioners of the Jackson Municipal Airport Authority;\n\n Case: 18-60487 Document: 00515086236 Page: 2 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\nEVELYN O. REED, in her official capacity as a Commissioner on the Board\nof Commissioners of the Jackson Municipal Airport Authority;\nDOCTOR ROSIE L. T. PRIDGEN, individually as citizens of the City of\nJackson, MS, on behalf of themselves and all others similarly situated;\nLAWANDA D. HARRIS, individually as citizens of the City of Jackson, MS,\non behalf of themselves and all others similarly situated;\nVERNON W. HARTLEY, SR., individually as citizens of the City of Jackson,\nMS, on behalf of themselves and all others similarly situated;\nEVELYN O. REED, individually as citizens of the City of Jackson, MS, on\nbehalf of themselves and all others similarly situated;\nJAMES L. HENLEY, JR., individually as citizens of the City of Jackson, MS,\non behalf of themselves and all others similarly situated,\n\n Intervenors–Appellees.\n\n\n\n\n Appeal from the United States District Court\n for the Southern District of Mississippi\n\n\n\n\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n This is a discovery dispute stemming from a challenge to recent changes\nto the governance of the Jackson-Medgar Wiley Evers International Airport\n(“airport”) via Mississippi Senate Bill 2162 (“S.B. 2162”). The Jackson Munici-\npal Airport Authority (“JMAA”), the Board of Commissioners of JMAA\n(“Board”), and each member of the Board, in their official and individual capac-\nities, sued the Governor, Lieutenant Governor, and the two counties in which\nthe airport is located, claiming that S.B. 2162 violates, inter alia, the Four-\nteenth Amendment’s Equal Protection Clause and the equal protection com-\nponent of the Mississippi Constitution.\n 2\n\n Case: 18-60487 Document: 00515086236 Page: 3 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\n Plaintiffs served document subpoenas on eight state legislators (the\n“Legislators”) who are not parties to the case, seeking communications between\nthe Legislators “and any person, including members of the Mississippi legis-\nlature and any governmental agency, body or its representative(s)” about\nS.B. 2162 or the airport. Claiming legislative privilege, the Legislators refused\nto comply. The magistrate judge (“MJ”) granted in part the plaintiffs’ motion\nto enforce the subpoenas, ordering the Legislators to produce a privilege log\nand any relevant information previously shared with third parties. The dis-\ntrict court affirmed. Because the plaintiffs lack standing, we vacate and\nremand with instruction to dismiss the equal protection claim.\n\n I.\n A.\n In April 2016, the Mississippi Legislature enacted S.B. 2162, 1 amending\nthe Airport Authorities Law, MISS. CODE ANN. §§ 61-3-1 et seq., and trans-\nferring control of the airport from the five-member JMAA to a new nine-\nmember board, the Jackson Metropolitan Area Airport Authority. 2 Under the\nnew arrangement, Jackson officials appoint only two commissioners; the other\nseven are appointed by state officials and officials from neighboring counties. 3\nThat structure is unique: Mississippi law grants every other municipality\n\n\n\n 1 S.B. 2162 was introduced by five of the appellants—Senators Josh Harkins, Dean\nKirby, Philip Moran, Chris Caughman, and Nickey Browning. It was referred to a committee\nchaired by another appellant, Senator John A. Polk, and then to committees chaired by\nappellants Mark Baker and Alex Monsour in the Mississippi House of Representatives.\n 2 The City of Jackson owns the land on which the Airport is located.\n 3 The nine commissioners on the new board are the Adjutant General of the Mis-\nsissippi National Guard; the Executive Director of the Mississippi Development Authority;\none commissioner each appointed by the Jackson Mayor, the Jackson City Council, the Board\nof Supervisors of Madison County, the Board of Supervisors of Rankin County, and the Lieu-\ntenant Governor of Mississippi; and two commissioners appointed by the Governor of Mis-\nsissippi and who must reside in Jackson. MISS. CODE ANN. § 61-3-6.\n 3\n\n Case: 18-60487 Document: 00515086236 Page: 4 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\nexclusive authority to create an airport authority and appoint its commis-\nsioners. 4 Defendant Governor Bryant signed S.B. 2162 on May 4, 2016.\n\n Shortly before the bill took effect, JMAA, its Board, the JMAA Commis-\nsioners, the Jackson Mayor, and the Jackson City Council intervened in a suit\nfiled by a Jackson resident to enjoin enforcement of S.B. 2162. The only per-\ntinent count of the intervenor complaint is Count VII, in which the members\nof the JMAA Board—suing in their individual capacities “on behalf of them-\nselves and all others similarly situated”—assert that S.B. 2162 violates the\nFourteenth Amendment’s Equal Protection Clause and the equal protection\ncomponent of the Mississippi Constitution’s Due Process Clause. 5\n\n Urging that S.B. 2162 effects “an illegal dilution of voting and other\nrights of the citizens of Jackson, Mississippi,” the plaintiffs claim a represen-\ntational injury. They posit that Jackson “officials, including the Mayor and the\nCity Council, currently select the JMAA Board,” but “[S.B.] 2162 strips those\nofficials of control” of their airport, leaving “the City’s Mayor and Council . . .\nwith a single appointee each to the new, nine[-]person board.” The plaintiffs\n\n\n\n 4 Compare MISS. CODE ANN. § 61-3-5 (“Any municipality . . . by resolution, may create\na public body, corporate and politic, to be known as a municipal airport authority . . . . Upon\nthe adoption of a resolution creating a municipal airport authority, the governing body of the\nmunicipality . . . shall appoint five (5) persons as commissioners of the authority.”), with id.\n§ 61-3-6 (“The Jackson Metropolitan Area Airport Authority is created . . . to manage, control\nand enforce all necessary and beneficial matters pertaining to the operation of Jackson-\nMedgar Wiley Evers International Airport and Hawkins Field Airport. The authority shall\nhave the same powers and duties as a municipal airport authority under this chapter . . . .\nThe Jackson Metropolitan Area Airport Authority shall consist of the following nine (9)\ncommissioners . . . .”).\n 5 Though the Mississippi Constitution has no equal protection clause, “Mississippi\nfinds an equal protection component in its Due Process Clause, MISS. CONST. art. III, § 14.”\nJeffrey Jackson et al., 3 ENCYCLOPEDIA MISS. LAW § 19:49 (2d ed. 2016); see also, e.g.,\nMcGowan v. State, 185 So. 826, 829 (Miss. 1939) (“Equal protection, under the law, is one of\nthe corner stones of the American system of government, and experience admonishes us that\nthese constitutional rights should be graven with a pen of iron upon the rock forever.”\n(internal quotation marks omitted)).\n 4\n\n Case: 18-60487 Document: 00515086236 Page: 5 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\nopine that “every other municipality in the State of Mississippi” retains the\nexclusive “discretion to create a municipal airport authority to manage, con-\ntrol, and operate any airports owned by those municipalities.” In other words,\nJackson’s “governing officials have less opportunity and ability as compared to\nthe other appointing officials to exercise discretion in matters of appointing an\nairport authority.” The plaintiffs conclude that S.B. 2162 “has the practical\neffect of foreclosing the City’s electorate from exercising their right to elect\ngoverning officials with unencumbered discretion to create a municipal airport\nauthority and appoint commissioners to manage, control and operate [it].”\n\n The plaintiffs further contend that S.B. 2162 altered governance of the\nairport for race-based reasons. Before S.B. 2162, all five commissioners were\nblack, which, the plaintiffs aver, made the airport “the only airport in the State\nof Mississippi managed and operated by a Board comprised solely of African\nAmericans.” They further allege that the City of Jackson is approximately 79%\nblack and 18% Caucasian, which roughly matched the racial composition of\nJackson officials when S.B. 2162 was enacted. 6 The State of Mississippi,\nhowever, is 37% black and 59% Caucasian. 7 Under the new arrangement, the\nGovernor and Lieutenant Governor select five of the nine commissioners. Two\nmore are selected by Madison County and Rankin County officials, and both of\nthose counties are majority Caucasian. 8 Taking control of the airport away\nfrom Jackson, the intervenors conclude, “demonstrates the City and its citizens\nand taxpayers have been invidiously excluded because of race, in whole or in\n\n\n 6 See U.S. DEP’T COMMERCE, Mississippi: 2010—Census of Population and Housing 90\n(Sept. 2012), available at https://www.census.gov/prod/cen2010/cph-1-26.pdf. The plaintiffs\nassert that Jackson was governed by “five African Americans and two Caucasians” when S.B.\n2162 was enacted.\n 7 Id. at 84.\n 8 Madison County is 57% Caucasian and 38% black, and Rankin County is 77% Cau-\ncasian and 19% black. Id.\n 5\n\n Case: 18-60487 Document: 00515086236 Page: 6 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\npart, from any control of its Airport by [S.B.] 2162.”\n\n B.\n During discovery, the JMAA and its five commissioners, suing in their\nofficial capacities (“JMAA plaintiffs”), served document subpoenas on the eight\nLegislators. Additionally, four of the five commissioners suing in their indi-\nvidual capacities (“individual plaintiffs”) served identical subpoenas on four of\nthe same Legislators. 9 The subpoenas requested, in relevant part, communi-\ncations between the Legislators “and any person, including members of the\nMississippi legislature and any governmental agency, body or its represen-\ntative(s)” about S.B. 2162 or the Airport. 10 The plaintiffs averred that the sub-\npoenas sought information relevant to “establishing an equal protection viola-\ntion under federal law.”\n\n The Legislators refused to comply, specifically objecting to Request 3.\nThey first asserted that any responsive information would be relevant only to\nthe equal protection claim brought by the individual plaintiffs and not to the\nJMAA plaintiffs’ claims. The Legislators secondly maintained the requested\n“communications between members of the Mississippi Legislature and govern-\nment officials regarding [S.B.] 2162’s consideration and passage . . . per-\ntain[ing] to the Legislators’ thought processes or the communications they\n\n\n 9Those Legislators include Representative Baker and Senators Kirby, Caughman,\nand Harkins. The relevant board members are Pridgen, Harris, Hartley, and Reed.\n 10 Request 3 reads in full as follows:\n 3. Any and all documents, including but not limited to, email communications\n and text messages and any documents attached thereto (stored or otherwise)\n exchanged by (sent to and/or from) you and any person, including members of\n the Mississippi legislature and any governmental agency, body or its represen-\n tative(s) regarding Senate Bill 2162 and/ or [sic] the Jackson-Medgar Evers\n International Airport from January 1, 2014 to present. The responsive infor-\n mation is requested to be produced on a disk, in single page Tiff files, a sum-\n mation load file, and OCR.\n 6\n\n Case: 18-60487 Document: 00515086236 Page: 7 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\nhad”—would be protected by the legislative privilege.\n\n The JMAA plaintiffs and the individual plaintiffs moved to enforce the\nsubpoenas, and the MJ partially granted the motion. Observing that “motiva-\ntions behind [an] allegedly discriminatory law are relevant in determining\nwhether an [equal protection] violation has occurred,” the MJ found that\nRequest 3 “appears reasonably tailored to seek documents which may shed\nlight on the Legislators’ motivations in drafting and passing [S.B.] 2162.” The\nMJ did not distinguish between the relevance of the information sought by the\nJMAA plaintiffs’ and the individual plaintiffs’ subpoenas.\n\n Regarding the privilege claim, the MJ determined that any applicable\nprivilege was waived for “documents or information otherwise protected by the\nlegislative privilege . . . shared with third parties” and ordered the Legislators\nto produce such materials. The MJ also faulted the Legislators for invoking\nlegislative privilege “without producing an accompanying privilege log,” as\nFederal Rule of Civil Procedure 26(b)(5)(A)(ii) requires. He ordered them to\n“produce a privilege log identifying” documents responsive to Request 3 but\nwithheld under a claim of privilege so that the plaintiffs could challenge privi-\nlege claims over particular documents. The district court upheld the discovery\norder 11 but, predicting this interlocutory appeal, ruled that “the [L]egislators\nwill not have to comply with the [MJ’s] opinion until the mandate issues from\nNew Orleans or Washington, D.C.”\n\n II.\n We generally review a subpoena enforcement order for abuse of discre-\ntion. United States v. Zadeh, 820 F.3d 746, 750 (5th Cir. 2016). We review\n\n\n\n The district court did not distinguish between the eight subpoenas issued by the\n 11\n\nJMAA plaintiffs and the four subpoenas issued by the individual plaintiffs.\n 7\n\n Case: 18-60487 Document: 00515086236 Page: 8 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\nde novo a district court’s determination of controlling law, In re Avantel, S.A.,\n343 F.3d 311, 318 (5th Cir. 2003), as well as questions of subject-matter jur-\nisdiction, Houston Ref., L.P. v. United Steel, Paper & Forestry, Rubber, Mfg.,\n765 F.3d 396, 400 (5th Cir. 2014).\n\n III.\n The parties agree that the subpoenas seek information relating to the\nequal protection claim brought as Count VII. As we have explained, that count\nwas brought by only the individual plaintiffs—that is, the JMAA board mem-\nbers suing in their individual capacities. Thus, to the extent the order required\nthe Legislators to comply with Request 3 in the subpoenas issued by the JMAA\nplaintiffs, the district court abused its discretion in ordering the Legislators to\ncomply with a production order unrelated to those plaintiffs’ claims.\n\n That leaves the four subpoenas issued on behalf of plaintiffs Pridgen,\nHarris, Hartley, and Reed—suing “in their individual capacities and as citizens\nand taxpayers of the City of Jackson and the State of Mississippi”—and served\non Representative Baker and Senators Kirby, Caughman, and Harkins. The\nLegislators contend that because the individual plaintiffs were without stand-\ning to pursue the equal protection claim, the district court lacked jurisdiction\nto enforce their subpoenas. We agree.\n\n A.\n “[F]ederal courts are confined to adjudicating actual ‘cases’ and ‘contro-\nversies.’” Henderson v. Stalder, 287 F.3d 374, 378 (5th Cir. 2002) (quoting U.S.\nCONST. art. III, § 2, cl. 1). “One element of the case-or-controversy requirement\nis that [plaintiffs], based on their complaint, must establish that they have\nstanding to sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997). “The Judicial\nBranch may not ‘accept for adjudication claims of constitutional violation . . .\n\n 8\n\n Case: 18-60487 Document: 00515086236 Page: 9 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\nwhere the claimant has not suffered cognizable injury.” 12\n\n To have standing, “the plaintiff[s] must have suffered an injury in fact”—\n“an invasion of a legally protected interest” 13—that is “concrete, particularized,\nand actual or imminent; fairly traceable to the challenged action; and\nredressable by a favorable ruling.” 14 “Since they are not mere pleading require-\nments but rather an indispensable part of the plaintiff’s case, each element\nmust be supported . . . with the manner and degree of evidence required at the\nsuccessive stages of litigation.” Barber, 860 F.3d at 352 (citation omitted).\n\n “At the pleading stage, general factual allegations of injury resulting\nfrom the defendant’s conduct may suffice” to establish standing. Defs. of Wild-\nlife, 504 U.S. at 561. “Thus, we will not dismiss for lack of standing if we rea-\nsonably can infer from the plaintiffs’ general allegations” that they have\nstanding. Hotze v. Burwell, 784 F.3d 984, 992 (5th Cir. 2015). But the “infer-\nence must be reasonable . . . .” Id. “A federal court is powerless to create its\nown jurisdiction by embellishing otherwise deficient allegations of standing.”\nId. at 993 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155–56 (1990)). It\nfollows that “if the plaintiff does not carry his burden clearly to allege facts\ndemonstrating that he is a proper party to invoke judicial resolution of the\ndispute, then dismissal for lack of standing is appropriate.” Id. (internal\nquotation marks and citation omitted).\n\n Because whether the plaintiffs have standing implicates whether the\n\n\n\n 12 Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017) (quoting Valley Forge Christian\nColl. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)).\n 13 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks\nomitted).\n 14Texas v. United States, 809 F.3d 134, 150 (5th Cir. 2015) (quoting Clapper v.\nAmnesty Int’l USA, 568 U.S. 398, 409 (2013)), aff’d by an equally divided court, 136 S. Ct.\n2271 (2016) (mem.).\n 9\n\n Case: 18-60487 Document: 00515086236 Page: 10 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\ncourt has jurisdiction, even nonparty witnesses refusing to comply with a dis-\ncovery order may challenge standing. 15 That is because “the subpoena power\nof a court cannot be more extensive than its jurisdiction.” U.S. Catholic\nConference, 487 U.S. at 76. Thus, “if a district court does not have subject-\nmatter jurisdiction over the underlying action, and the process was not issued\nin aid of determining that jurisdiction, then the process is void.” 16\n\n B.\n The Legislators claim that the individual plaintiffs lack standing be-\ncause they have not “establish[ed] that effective and meaningful participation\nin the affairs of the airport constitutes a legally protected interest.” The Leg-\nislators maintain that the district court lacked subject matter jurisdiction over\nthe equal protection claim and thus had no authority to act on the document\nsubpoenas. The plaintiffs respond that the collateral order doctrine is too nar-\nrow to allow the Legislators “to raise, for the first time, arguments for dismissal\nof claims advanced against the parties in the underlying case,” a retort that is\ninconsistent with United States Catholic Conference, 478 U.S. at 76.\n\n The individual plaintiffs lack standing to bring their equal protection\nclaim because they have failed to demonstrate injury to a legally protected\ninterest. They assert that S.B. 2162 transgresses the “right” of Jackson voters\n“to elect governing officials with unencumbered discretion to create a\n\n\n\n 15 See U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76\n(1988) (“hold[ing] that a nonparty witness can challenge the court’s lack of subject-matter\njurisdiction in defense of a civil contempt citation, notwithstanding the absence of a final\njudgment in the underlying action”).\n 16Id.; see also Port Drum Co. v. Umphrey, 852 F.2d 148, 150 n.2 (5th Cir. 1988) (ob-\nserving that “[i]n some instances, such as an appeal from a civil contempt order, non-parties\nand former parties may utilize the rules to challenge on-going proceedings . . . because non-\nparties cannot seek to challenge the proceedings once the original suit is at an end” (citing\nU.S. Catholic Conference, 487 U.S. 72)).\n 10\n\n Case: 18-60487 Document: 00515086236 Page: 11 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\nmunicipal airport authority and appoint commissioners to manage, control and\noperate [it].” Put differently, they allege that SB 2162’s “selection scheme . . .\ndeprives the Individual Plaintiffs and the citizens of the City of Jackson of\neffective and meaningful participation in the affairs of [the airport.]”\n\n The plaintiffs cite no precedent supporting their theory that Jackson\nvoters have a right to elect officials with the exclusive authority to select muni-\ncipal airport commissioners. Though voters may have standing to challenge\nstate action that effectively dilutes their ability to select their representa-\ntives, 17 that is not the injury the individual plaintiffs press here. Their theory,\ninstead, is that S.B. 2162 withdraws the ability of their elected officials to\ncontrol, exclusively, the composition of the airport’s governing board.\n\n That Jackson “has been singled out by [S.B.] 2162” does not establish\nthat a legally protected interest of the individual plaintiffs has been violated.\nCities are creatures of states, and though their authority to do so is not un-\nlimited, 18 states may, under some circumstances, treat different cities dif-\nferently. 19 That the State of Mississippi has enacted a different method for the\nappointment of certain municipal airport commissioners and not others does\nnot mean that plaintiffs, as residents and taxpayers of Jackson, have suffered\na concrete and particularized, actual and imminent injury to interests\n\n\n\n\n 17See, e.g., Baker v. Carr, 369 U.S. 186, 207–08 (1962) (holding that plaintiffs had\nstanding to challenge state redistricting maps as diluting the efficacy of their votes).\n 18 Gomillion v. Lightfoot, 364 U.S. 339, 342–44 (1960) (acknowledging “the breadth\nand importance of . . . the State’s political power” over “its political subdivisions” but noting\nthat a state does not have “plenary power to manipulate in every conceivable way, for every\nconceivable purpose, the affairs of its municipal corporations”).\n 19 See, e.g., White v. Gautier Util. Dist. Jackson Cty. (In re Validation of $7,800,000\nCombined Util. Sys. Revenue Bond), 465 So.2d 1003, 1016–17 (Miss. 1985) (explaining that\ncertain laws applicable to only one local political unit can be consistent with the Mississippi\nConstitution).\n 11\n\n Case: 18-60487 Document: 00515086236 Page: 12 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\nprotected by the Equal Protection Clause. 20\n\n C.\n During oral argument, the individual plaintiffs pressed an alternative\nsupposed injury: That they will lose their positions as volunteer JMAA com-\nmissioners if S.B. 2162 is implemented. They insist that volunteers are treated\nas public employees under some aspects of Mississippi law and that other\ncourts of appeals have generally found standing where a government volun-\nteer’s position is threatened by government action. 21\n\n Although, at this stage of litigation, we may draw reasonable inferences\nfrom the pleadings to decide standing, the plaintiffs ask us to infer an injury\nwell beyond the facts pleaded. They sued in their individual capacities as citi-\nzens of Jackson and as purported class representatives. In Count VII, they\npleaded only one injury: That S.B. 2162 violates the Equal Protection Clause\nbecause it “singles out and excludes [Jackson] and its governing officials from\n\n\n 20Nothing in this opinion should be construed to assess the merits of Count V of the\nintervenors’ complaint, which alleges that S.B. 2162 is a local law that violates Article 4, § 87\nof the Mississippi Constitution. Because the subpoenas concern only Count VII, the equal\nprotection claim, Count V is not before us on this interlocutory appeal.\n 21Plaintiffs pointed to Hyland v. Wonder, 972 F.2d 1129 (9th Cir. 1992), and Barton\nv. Clancey, 632 F.3d 9 (1st Cir. 2011), during oral argument. Hyland held that a volunteer\nat a municipal juvenile probation department could bring a First Amendment retaliation\nclaim and “that a volunteer position, like other governmental benefits and privileges, can\nonly be denied in a manner that comports with the First Amendment.” Hyland, 972 F.2d\nat 1136. In Barton, the court surveyed law from multiple circuits addressing whether depri-\nvation of a position as a government volunteer triggers First Amendment scrutiny. See\nBarton, 632 F.3d at 24–26 (noting that the Second, Third, Seventh, Ninth, and Tenth Circuits\nhave indicated that in some circumstances, a volunteer position may be a valuable govern-\nment benefit protected by the First Amendment).\n Neither Hyland nor Barton shores up the intervenors’ failure to plead any facts\ndemonstrating that S.B. 2162 violates the Equal Protection Clause by jeopardizing the indi-\nvidual plaintiffs’ positions as volunteer JMAA commissioners. And, in any event, “Equal\nProtection and [First Amendment] cases call for different injury-in-fact analyses because the\ninjuries protected . . . are different.” Barber, 860 F.3d at 356 (internal quotation marks and\ncitation omitted).\n 12\n\n Case: 18-60487 Document: 00515086236 Page: 13 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\nexercising the right . . . to determine how the City’s airport will be managed\nand operated.”\n\n The complaint never suggests—as counsel did during oral argument—\nthat the individual commissioners are volunteers reimbursed for some\nexpenses, that Mississippi law recognizes volunteers as public employees in\nsome contexts, and that the combination might give them standing to challenge\nS.B. 2162 as a violation of the Equal Protection Clause. “Because we also can-\nnot create our own jurisdiction by embellishing otherwise deficient allegations\nof standing,” Hotze, 784 F.3d at 996 (cleaned up), the individual plaintiffs lack\nstanding to bring Count VII. Accordingly, the district court had neither subject\nmatter jurisdiction over the individual plaintiffs’ equal protection claim nor\nauthority to order compliance with the document subpoenas seeking informa-\ntion about that claim.\n\n It follows that the order requiring the Legislators to comply with the\nsubpoenas issued on behalf of both the JMAA plaintiffs and the individual\nplaintiffs by producing a privilege log and communications with third parties\nis VACATED. This matter is REMANDED with instruction to DISMISS with-\nout prejudice, for want of subject-matter jurisdiction, Count VII of the inter-\nvenors’ complaint.\n\n\n\n\n 13\n\n Case: 18-60487 Document: 00515086236 Page: 14 Date Filed: 08/21/2019\n\n\n\n No. 18-60487\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jeffery Stallworth v. Dewey Bryant\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-21\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-60487 Document: 00515086236 Page: 1 Date Filed: 08/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 18-60487\\n FILED\\n August 21, 2019\\n Lyle W. Cayce\\n Clerk\\n\\nJEFFERY A. STALLWORTH,\\n\\n Plaintiff,\\n\\nversus\\n\\nGOVERNOR DEWEY PHILLIP \\\"PHIL\\\" BRYANT; et al.,\\n\\n Defendants,\\n\\nversus\\n\\nJOSH HARKINS; DEAN KIRBY; PHILLIP MORAN; CHRIS CAUGHMAN;\\nNICKEY BROWNING; JOHN A. POLK; MARK BAKER; ALEX MONSOUR,\\n\\n Respondents–Appellants,\\n\\nversus\\n\\nJACKSON MUNICIPAL AIRPORT AUTHORITY;\\nBOARD OF COMMISSIONERS OF THE JACKSON MUNICIPAL AIRPORT\\nAUTHORITY, each in his or her official capacity as a Commissioner on the\\nBoard of Commissioners of the Jackson Municipal Airport Authority;\\nDOCTOR ROSIE L. T. PRIDGEN, in her official capacity as a Commissioner\\non the Board of Commissioners of the Jackson Municipal Airport Authority;\\nREVEREND JAMES L. HENLEY, JR., in his official capacity as a\\nCommissioner on the Board of Commissioners of the Jackson Municipal\\nAirport Authority;\\nLAWANDA D. HARRIS, in her official capacity as a Commissioner on the\\nBoard of Commissioners of the Jackson Municipal Airport Authority;\\nVERNON W. HARTLEY, SR., in his official capacity as a Commissioner on\\nthe Board of Commissioners of the Jackson Municipal Airport Authority;\\n\\n Case: 18-60487 Document: 00515086236 Page: 2 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nEVELYN O. REED, in her official capacity as a Commissioner on the Board\\nof Commissioners of the Jackson Municipal Airport Authority;\\nDOCTOR ROSIE L. T. PRIDGEN, individually as citizens of the City of\\nJackson, MS, on behalf of themselves and all others similarly situated;\\nLAWANDA D. HARRIS, individually as citizens of the City of Jackson, MS,\\non behalf of themselves and all others similarly situated;\\nVERNON W. HARTLEY, SR., individually as citizens of the City of Jackson,\\nMS, on behalf of themselves and all others similarly situated;\\nEVELYN O. REED, individually as citizens of the City of Jackson, MS, on\\nbehalf of themselves and all others similarly situated;\\nJAMES L. HENLEY, JR., individually as citizens of the City of Jackson, MS,\\non behalf of themselves and all others similarly situated,\\n\\n Intervenors–Appellees.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Mississippi\\n\\n\\n\\n\\nBefore HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n This is a discovery dispute stemming from a challenge to recent changes\\nto the governance of the Jackson-Medgar Wiley Evers International Airport\\n(“airport”) via Mississippi Senate Bill 2162 (“S.B. 2162”). The Jackson Munici-\\npal Airport Authority (“JMAA”), the Board of Commissioners of JMAA\\n(“Board”), and each member of the Board, in their official and individual capac-\\nities, sued the Governor, Lieutenant Governor, and the two counties in which\\nthe airport is located, claiming that S.B. 2162 violates, inter alia, the Four-\\nteenth Amendment’s Equal Protection Clause and the equal protection com-\\nponent of the Mississippi Constitution.\\n 2\\n\\n Case: 18-60487 Document: 00515086236 Page: 3 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\n Plaintiffs served document subpoenas on eight state legislators (the\\n“Legislators”) who are not parties to the case, seeking communications between\\nthe Legislators “and any person, including members of the Mississippi legis-\\nlature and any governmental agency, body or its representative(s)” about\\nS.B. 2162 or the airport. Claiming legislative privilege, the Legislators refused\\nto comply. The magistrate judge (“MJ”) granted in part the plaintiffs’ motion\\nto enforce the subpoenas, ordering the Legislators to produce a privilege log\\nand any relevant information previously shared with third parties. The dis-\\ntrict court affirmed. Because the plaintiffs lack standing, we vacate and\\nremand with instruction to dismiss the equal protection claim.\\n\\n I.\\n A.\\n In April 2016, the Mississippi Legislature enacted S.B. 2162, 1 amending\\nthe Airport Authorities Law, MISS. CODE ANN. §§ 61-3-1 et seq., and trans-\\nferring control of the airport from the five-member JMAA to a new nine-\\nmember board, the Jackson Metropolitan Area Airport Authority. 2 Under the\\nnew arrangement, Jackson officials appoint only two commissioners; the other\\nseven are appointed by state officials and officials from neighboring counties. 3\\nThat structure is unique: Mississippi law grants every other municipality\\n\\n\\n\\n 1 S.B. 2162 was introduced by five of the appellants—Senators Josh Harkins, Dean\\nKirby, Philip Moran, Chris Caughman, and Nickey Browning. It was referred to a committee\\nchaired by another appellant, Senator John A. Polk, and then to committees chaired by\\nappellants Mark Baker and Alex Monsour in the Mississippi House of Representatives.\\n 2 The City of Jackson owns the land on which the Airport is located.\\n 3 The nine commissioners on the new board are the Adjutant General of the Mis-\\nsissippi National Guard; the Executive Director of the Mississippi Development Authority;\\none commissioner each appointed by the Jackson Mayor, the Jackson City Council, the Board\\nof Supervisors of Madison County, the Board of Supervisors of Rankin County, and the Lieu-\\ntenant Governor of Mississippi; and two commissioners appointed by the Governor of Mis-\\nsissippi and who must reside in Jackson. MISS. CODE ANN. § 61-3-6.\\n 3\\n\\n Case: 18-60487 Document: 00515086236 Page: 4 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nexclusive authority to create an airport authority and appoint its commis-\\nsioners. 4 Defendant Governor Bryant signed S.B. 2162 on May 4, 2016.\\n\\n Shortly before the bill took effect, JMAA, its Board, the JMAA Commis-\\nsioners, the Jackson Mayor, and the Jackson City Council intervened in a suit\\nfiled by a Jackson resident to enjoin enforcement of S.B. 2162. The only per-\\ntinent count of the intervenor complaint is Count VII, in which the members\\nof the JMAA Board—suing in their individual capacities “on behalf of them-\\nselves and all others similarly situated”—assert that S.B. 2162 violates the\\nFourteenth Amendment’s Equal Protection Clause and the equal protection\\ncomponent of the Mississippi Constitution’s Due Process Clause. 5\\n\\n Urging that S.B. 2162 effects “an illegal dilution of voting and other\\nrights of the citizens of Jackson, Mississippi,” the plaintiffs claim a represen-\\ntational injury. They posit that Jackson “officials, including the Mayor and the\\nCity Council, currently select the JMAA Board,” but “[S.B.] 2162 strips those\\nofficials of control” of their airport, leaving “the City’s Mayor and Council . . .\\nwith a single appointee each to the new, nine[-]person board.” The plaintiffs\\n\\n\\n\\n 4 Compare MISS. CODE ANN. § 61-3-5 (“Any municipality . . . by resolution, may create\\na public body, corporate and politic, to be known as a municipal airport authority . . . . Upon\\nthe adoption of a resolution creating a municipal airport authority, the governing body of the\\nmunicipality . . . shall appoint five (5) persons as commissioners of the authority.”), with id.\\n§ 61-3-6 (“The Jackson Metropolitan Area Airport Authority is created . . . to manage, control\\nand enforce all necessary and beneficial matters pertaining to the operation of Jackson-\\nMedgar Wiley Evers International Airport and Hawkins Field Airport. The authority shall\\nhave the same powers and duties as a municipal airport authority under this chapter . . . .\\nThe Jackson Metropolitan Area Airport Authority shall consist of the following nine (9)\\ncommissioners . . . .”).\\n 5 Though the Mississippi Constitution has no equal protection clause, “Mississippi\\nfinds an equal protection component in its Due Process Clause, MISS. CONST. art. III, § 14.”\\nJeffrey Jackson et al., 3 ENCYCLOPEDIA MISS. LAW § 19:49 (2d ed. 2016); see also, e.g.,\\nMcGowan v. State, 185 So. 826, 829 (Miss. 1939) (“Equal protection, under the law, is one of\\nthe corner stones of the American system of government, and experience admonishes us that\\nthese constitutional rights should be graven with a pen of iron upon the rock forever.”\\n(internal quotation marks omitted)).\\n 4\\n\\n Case: 18-60487 Document: 00515086236 Page: 5 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nopine that “every other municipality in the State of Mississippi” retains the\\nexclusive “discretion to create a municipal airport authority to manage, con-\\ntrol, and operate any airports owned by those municipalities.” In other words,\\nJackson’s “governing officials have less opportunity and ability as compared to\\nthe other appointing officials to exercise discretion in matters of appointing an\\nairport authority.” The plaintiffs conclude that S.B. 2162 “has the practical\\neffect of foreclosing the City’s electorate from exercising their right to elect\\ngoverning officials with unencumbered discretion to create a municipal airport\\nauthority and appoint commissioners to manage, control and operate [it].”\\n\\n The plaintiffs further contend that S.B. 2162 altered governance of the\\nairport for race-based reasons. Before S.B. 2162, all five commissioners were\\nblack, which, the plaintiffs aver, made the airport “the only airport in the State\\nof Mississippi managed and operated by a Board comprised solely of African\\nAmericans.” They further allege that the City of Jackson is approximately 79%\\nblack and 18% Caucasian, which roughly matched the racial composition of\\nJackson officials when S.B. 2162 was enacted. 6 The State of Mississippi,\\nhowever, is 37% black and 59% Caucasian. 7 Under the new arrangement, the\\nGovernor and Lieutenant Governor select five of the nine commissioners. Two\\nmore are selected by Madison County and Rankin County officials, and both of\\nthose counties are majority Caucasian. 8 Taking control of the airport away\\nfrom Jackson, the intervenors conclude, “demonstrates the City and its citizens\\nand taxpayers have been invidiously excluded because of race, in whole or in\\n\\n\\n 6 See U.S. DEP’T COMMERCE, Mississippi: 2010—Census of Population and Housing 90\\n(Sept. 2012), available at https://www.census.gov/prod/cen2010/cph-1-26.pdf. The plaintiffs\\nassert that Jackson was governed by “five African Americans and two Caucasians” when S.B.\\n2162 was enacted.\\n 7 Id. at 84.\\n 8 Madison County is 57% Caucasian and 38% black, and Rankin County is 77% Cau-\\ncasian and 19% black. Id.\\n 5\\n\\n Case: 18-60487 Document: 00515086236 Page: 6 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\npart, from any control of its Airport by [S.B.] 2162.”\\n\\n B.\\n During discovery, the JMAA and its five commissioners, suing in their\\nofficial capacities (“JMAA plaintiffs”), served document subpoenas on the eight\\nLegislators. Additionally, four of the five commissioners suing in their indi-\\nvidual capacities (“individual plaintiffs”) served identical subpoenas on four of\\nthe same Legislators. 9 The subpoenas requested, in relevant part, communi-\\ncations between the Legislators “and any person, including members of the\\nMississippi legislature and any governmental agency, body or its represen-\\ntative(s)” about S.B. 2162 or the Airport. 10 The plaintiffs averred that the sub-\\npoenas sought information relevant to “establishing an equal protection viola-\\ntion under federal law.”\\n\\n The Legislators refused to comply, specifically objecting to Request 3.\\nThey first asserted that any responsive information would be relevant only to\\nthe equal protection claim brought by the individual plaintiffs and not to the\\nJMAA plaintiffs’ claims. The Legislators secondly maintained the requested\\n“communications between members of the Mississippi Legislature and govern-\\nment officials regarding [S.B.] 2162’s consideration and passage . . . per-\\ntain[ing] to the Legislators’ thought processes or the communications they\\n\\n\\n 9Those Legislators include Representative Baker and Senators Kirby, Caughman,\\nand Harkins. The relevant board members are Pridgen, Harris, Hartley, and Reed.\\n 10 Request 3 reads in full as follows:\\n 3. Any and all documents, including but not limited to, email communications\\n and text messages and any documents attached thereto (stored or otherwise)\\n exchanged by (sent to and/or from) you and any person, including members of\\n the Mississippi legislature and any governmental agency, body or its represen-\\n tative(s) regarding Senate Bill 2162 and/ or [sic] the Jackson-Medgar Evers\\n International Airport from January 1, 2014 to present. The responsive infor-\\n mation is requested to be produced on a disk, in single page Tiff files, a sum-\\n mation load file, and OCR.\\n 6\\n\\n Case: 18-60487 Document: 00515086236 Page: 7 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nhad”—would be protected by the legislative privilege.\\n\\n The JMAA plaintiffs and the individual plaintiffs moved to enforce the\\nsubpoenas, and the MJ partially granted the motion. Observing that “motiva-\\ntions behind [an] allegedly discriminatory law are relevant in determining\\nwhether an [equal protection] violation has occurred,” the MJ found that\\nRequest 3 “appears reasonably tailored to seek documents which may shed\\nlight on the Legislators’ motivations in drafting and passing [S.B.] 2162.” The\\nMJ did not distinguish between the relevance of the information sought by the\\nJMAA plaintiffs’ and the individual plaintiffs’ subpoenas.\\n\\n Regarding the privilege claim, the MJ determined that any applicable\\nprivilege was waived for “documents or information otherwise protected by the\\nlegislative privilege . . . shared with third parties” and ordered the Legislators\\nto produce such materials. The MJ also faulted the Legislators for invoking\\nlegislative privilege “without producing an accompanying privilege log,” as\\nFederal Rule of Civil Procedure 26(b)(5)(A)(ii) requires. He ordered them to\\n“produce a privilege log identifying” documents responsive to Request 3 but\\nwithheld under a claim of privilege so that the plaintiffs could challenge privi-\\nlege claims over particular documents. The district court upheld the discovery\\norder 11 but, predicting this interlocutory appeal, ruled that “the [L]egislators\\nwill not have to comply with the [MJ’s] opinion until the mandate issues from\\nNew Orleans or Washington, D.C.”\\n\\n II.\\n We generally review a subpoena enforcement order for abuse of discre-\\ntion. United States v. Zadeh, 820 F.3d 746, 750 (5th Cir. 2016). We review\\n\\n\\n\\n The district court did not distinguish between the eight subpoenas issued by the\\n 11\\n\\nJMAA plaintiffs and the four subpoenas issued by the individual plaintiffs.\\n 7\\n\\n Case: 18-60487 Document: 00515086236 Page: 8 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nde novo a district court’s determination of controlling law, In re Avantel, S.A.,\\n343 F.3d 311, 318 (5th Cir. 2003), as well as questions of subject-matter jur-\\nisdiction, Houston Ref., L.P. v. United Steel, Paper & Forestry, Rubber, Mfg.,\\n765 F.3d 396, 400 (5th Cir. 2014).\\n\\n III.\\n The parties agree that the subpoenas seek information relating to the\\nequal protection claim brought as Count VII. As we have explained, that count\\nwas brought by only the individual plaintiffs—that is, the JMAA board mem-\\nbers suing in their individual capacities. Thus, to the extent the order required\\nthe Legislators to comply with Request 3 in the subpoenas issued by the JMAA\\nplaintiffs, the district court abused its discretion in ordering the Legislators to\\ncomply with a production order unrelated to those plaintiffs’ claims.\\n\\n That leaves the four subpoenas issued on behalf of plaintiffs Pridgen,\\nHarris, Hartley, and Reed—suing “in their individual capacities and as citizens\\nand taxpayers of the City of Jackson and the State of Mississippi”—and served\\non Representative Baker and Senators Kirby, Caughman, and Harkins. The\\nLegislators contend that because the individual plaintiffs were without stand-\\ning to pursue the equal protection claim, the district court lacked jurisdiction\\nto enforce their subpoenas. We agree.\\n\\n A.\\n “[F]ederal courts are confined to adjudicating actual ‘cases’ and ‘contro-\\nversies.’” Henderson v. Stalder, 287 F.3d 374, 378 (5th Cir. 2002) (quoting U.S.\\nCONST. art. III, § 2, cl. 1). “One element of the case-or-controversy requirement\\nis that [plaintiffs], based on their complaint, must establish that they have\\nstanding to sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997). “The Judicial\\nBranch may not ‘accept for adjudication claims of constitutional violation . . .\\n\\n 8\\n\\n Case: 18-60487 Document: 00515086236 Page: 9 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nwhere the claimant has not suffered cognizable injury.” 12\\n\\n To have standing, “the plaintiff[s] must have suffered an injury in fact”—\\n“an invasion of a legally protected interest” 13—that is “concrete, particularized,\\nand actual or imminent; fairly traceable to the challenged action; and\\nredressable by a favorable ruling.” 14 “Since they are not mere pleading require-\\nments but rather an indispensable part of the plaintiff’s case, each element\\nmust be supported . . . with the manner and degree of evidence required at the\\nsuccessive stages of litigation.” Barber, 860 F.3d at 352 (citation omitted).\\n\\n “At the pleading stage, general factual allegations of injury resulting\\nfrom the defendant’s conduct may suffice” to establish standing. Defs. of Wild-\\nlife, 504 U.S. at 561. “Thus, we will not dismiss for lack of standing if we rea-\\nsonably can infer from the plaintiffs’ general allegations” that they have\\nstanding. Hotze v. Burwell, 784 F.3d 984, 992 (5th Cir. 2015). But the “infer-\\nence must be reasonable . . . .” Id. “A federal court is powerless to create its\\nown jurisdiction by embellishing otherwise deficient allegations of standing.”\\nId. at 993 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155–56 (1990)). It\\nfollows that “if the plaintiff does not carry his burden clearly to allege facts\\ndemonstrating that he is a proper party to invoke judicial resolution of the\\ndispute, then dismissal for lack of standing is appropriate.” Id. (internal\\nquotation marks and citation omitted).\\n\\n Because whether the plaintiffs have standing implicates whether the\\n\\n\\n\\n 12 Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017) (quoting Valley Forge Christian\\nColl. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)).\\n 13 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks\\nomitted).\\n 14Texas v. United States, 809 F.3d 134, 150 (5th Cir. 2015) (quoting Clapper v.\\nAmnesty Int’l USA, 568 U.S. 398, 409 (2013)), aff’d by an equally divided court, 136 S. Ct.\\n2271 (2016) (mem.).\\n 9\\n\\n Case: 18-60487 Document: 00515086236 Page: 10 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\ncourt has jurisdiction, even nonparty witnesses refusing to comply with a dis-\\ncovery order may challenge standing. 15 That is because “the subpoena power\\nof a court cannot be more extensive than its jurisdiction.” U.S. Catholic\\nConference, 487 U.S. at 76. Thus, “if a district court does not have subject-\\nmatter jurisdiction over the underlying action, and the process was not issued\\nin aid of determining that jurisdiction, then the process is void.” 16\\n\\n B.\\n The Legislators claim that the individual plaintiffs lack standing be-\\ncause they have not “establish[ed] that effective and meaningful participation\\nin the affairs of the airport constitutes a legally protected interest.” The Leg-\\nislators maintain that the district court lacked subject matter jurisdiction over\\nthe equal protection claim and thus had no authority to act on the document\\nsubpoenas. The plaintiffs respond that the collateral order doctrine is too nar-\\nrow to allow the Legislators “to raise, for the first time, arguments for dismissal\\nof claims advanced against the parties in the underlying case,” a retort that is\\ninconsistent with United States Catholic Conference, 478 U.S. at 76.\\n\\n The individual plaintiffs lack standing to bring their equal protection\\nclaim because they have failed to demonstrate injury to a legally protected\\ninterest. They assert that S.B. 2162 transgresses the “right” of Jackson voters\\n“to elect governing officials with unencumbered discretion to create a\\n\\n\\n\\n 15 See U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76\\n(1988) (“hold[ing] that a nonparty witness can challenge the court’s lack of subject-matter\\njurisdiction in defense of a civil contempt citation, notwithstanding the absence of a final\\njudgment in the underlying action”).\\n 16Id.; see also Port Drum Co. v. Umphrey, 852 F.2d 148, 150 n.2 (5th Cir. 1988) (ob-\\nserving that “[i]n some instances, such as an appeal from a civil contempt order, non-parties\\nand former parties may utilize the rules to challenge on-going proceedings . . . because non-\\nparties cannot seek to challenge the proceedings once the original suit is at an end” (citing\\nU.S. Catholic Conference, 487 U.S. 72)).\\n 10\\n\\n Case: 18-60487 Document: 00515086236 Page: 11 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nmunicipal airport authority and appoint commissioners to manage, control and\\noperate [it].” Put differently, they allege that SB 2162’s “selection scheme . . .\\ndeprives the Individual Plaintiffs and the citizens of the City of Jackson of\\neffective and meaningful participation in the affairs of [the airport.]”\\n\\n The plaintiffs cite no precedent supporting their theory that Jackson\\nvoters have a right to elect officials with the exclusive authority to select muni-\\ncipal airport commissioners. Though voters may have standing to challenge\\nstate action that effectively dilutes their ability to select their representa-\\ntives, 17 that is not the injury the individual plaintiffs press here. Their theory,\\ninstead, is that S.B. 2162 withdraws the ability of their elected officials to\\ncontrol, exclusively, the composition of the airport’s governing board.\\n\\n That Jackson “has been singled out by [S.B.] 2162” does not establish\\nthat a legally protected interest of the individual plaintiffs has been violated.\\nCities are creatures of states, and though their authority to do so is not un-\\nlimited, 18 states may, under some circumstances, treat different cities dif-\\nferently. 19 That the State of Mississippi has enacted a different method for the\\nappointment of certain municipal airport commissioners and not others does\\nnot mean that plaintiffs, as residents and taxpayers of Jackson, have suffered\\na concrete and particularized, actual and imminent injury to interests\\n\\n\\n\\n\\n 17See, e.g., Baker v. Carr, 369 U.S. 186, 207–08 (1962) (holding that plaintiffs had\\nstanding to challenge state redistricting maps as diluting the efficacy of their votes).\\n 18 Gomillion v. Lightfoot, 364 U.S. 339, 342–44 (1960) (acknowledging “the breadth\\nand importance of . . . the State’s political power” over “its political subdivisions” but noting\\nthat a state does not have “plenary power to manipulate in every conceivable way, for every\\nconceivable purpose, the affairs of its municipal corporations”).\\n 19 See, e.g., White v. Gautier Util. Dist. Jackson Cty. (In re Validation of $7,800,000\\nCombined Util. Sys. Revenue Bond), 465 So.2d 1003, 1016–17 (Miss. 1985) (explaining that\\ncertain laws applicable to only one local political unit can be consistent with the Mississippi\\nConstitution).\\n 11\\n\\n Case: 18-60487 Document: 00515086236 Page: 12 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nprotected by the Equal Protection Clause. 20\\n\\n C.\\n During oral argument, the individual plaintiffs pressed an alternative\\nsupposed injury: That they will lose their positions as volunteer JMAA com-\\nmissioners if S.B. 2162 is implemented. They insist that volunteers are treated\\nas public employees under some aspects of Mississippi law and that other\\ncourts of appeals have generally found standing where a government volun-\\nteer’s position is threatened by government action. 21\\n\\n Although, at this stage of litigation, we may draw reasonable inferences\\nfrom the pleadings to decide standing, the plaintiffs ask us to infer an injury\\nwell beyond the facts pleaded. They sued in their individual capacities as citi-\\nzens of Jackson and as purported class representatives. In Count VII, they\\npleaded only one injury: That S.B. 2162 violates the Equal Protection Clause\\nbecause it “singles out and excludes [Jackson] and its governing officials from\\n\\n\\n 20Nothing in this opinion should be construed to assess the merits of Count V of the\\nintervenors’ complaint, which alleges that S.B. 2162 is a local law that violates Article 4, § 87\\nof the Mississippi Constitution. Because the subpoenas concern only Count VII, the equal\\nprotection claim, Count V is not before us on this interlocutory appeal.\\n 21Plaintiffs pointed to Hyland v. Wonder, 972 F.2d 1129 (9th Cir. 1992), and Barton\\nv. Clancey, 632 F.3d 9 (1st Cir. 2011), during oral argument. Hyland held that a volunteer\\nat a municipal juvenile probation department could bring a First Amendment retaliation\\nclaim and “that a volunteer position, like other governmental benefits and privileges, can\\nonly be denied in a manner that comports with the First Amendment.” Hyland, 972 F.2d\\nat 1136. In Barton, the court surveyed law from multiple circuits addressing whether depri-\\nvation of a position as a government volunteer triggers First Amendment scrutiny. See\\nBarton, 632 F.3d at 24–26 (noting that the Second, Third, Seventh, Ninth, and Tenth Circuits\\nhave indicated that in some circumstances, a volunteer position may be a valuable govern-\\nment benefit protected by the First Amendment).\\n Neither Hyland nor Barton shores up the intervenors’ failure to plead any facts\\ndemonstrating that S.B. 2162 violates the Equal Protection Clause by jeopardizing the indi-\\nvidual plaintiffs’ positions as volunteer JMAA commissioners. And, in any event, “Equal\\nProtection and [First Amendment] cases call for different injury-in-fact analyses because the\\ninjuries protected . . . are different.” Barber, 860 F.3d at 356 (internal quotation marks and\\ncitation omitted).\\n 12\\n\\n Case: 18-60487 Document: 00515086236 Page: 13 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\nexercising the right . . . to determine how the City’s airport will be managed\\nand operated.”\\n\\n The complaint never suggests—as counsel did during oral argument—\\nthat the individual commissioners are volunteers reimbursed for some\\nexpenses, that Mississippi law recognizes volunteers as public employees in\\nsome contexts, and that the combination might give them standing to challenge\\nS.B. 2162 as a violation of the Equal Protection Clause. “Because we also can-\\nnot create our own jurisdiction by embellishing otherwise deficient allegations\\nof standing,” Hotze, 784 F.3d at 996 (cleaned up), the individual plaintiffs lack\\nstanding to bring Count VII. Accordingly, the district court had neither subject\\nmatter jurisdiction over the individual plaintiffs’ equal protection claim nor\\nauthority to order compliance with the document subpoenas seeking informa-\\ntion about that claim.\\n\\n It follows that the order requiring the Legislators to comply with the\\nsubpoenas issued on behalf of both the JMAA plaintiffs and the individual\\nplaintiffs by producing a privilege log and communications with third parties\\nis VACATED. This matter is REMANDED with instruction to DISMISS with-\\nout prejudice, for want of subject-matter jurisdiction, Count VII of the inter-\\nvenors’ complaint.\\n\\n\\n\\n\\n 13\\n\\n Case: 18-60487 Document: 00515086236 Page: 14 Date Filed: 08/21/2019\\n\\n\\n\\n No. 18-60487\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3687,"cells":{"id":{"kind":"number","value":4654644,"string":"4,654,644"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Jeff Faludi v. U.S. Shale Solutions, L.L.C."},"decision_date":{"kind":"string","value":"2019-08-21"},"docket_number":{"kind":"string","value":"17-20808"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JENNIFER WALKER ELROD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-20808 Document: 00515086670 Page: 1 Date Filed: 08/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-20808 FILED\\n August 21, 2019\\n Lyle W. Cayce\\nJEFF FALUDI, Clerk\\n\\n Plaintiff – Appellant / Cross-Appellee,\\n\\nv.\\n\\nU.S. SHALE SOLUTIONS, L.L.C.,\\n\\n Defendant – Appellee / Cross-Appellant.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\\nJENNIFER WALKER ELROD, Circuit Judge:\\n Appellant Jeff Faludi, a former practicing attorney, took a consulting job\\nat an oil and gas services company. When Faludi left the company, he filed\\nthis lawsuit under the Fair Labor Standards Act (FLSA), seeking to recover\\nunpaid overtime wages. Because Faludi was exempt from the FLSA, we\\nAFFIRM the district court’s summary judgment in favor of his former\\nemployer. However, because the district court did not state its reasons for\\ndeclining to award costs to the prevailing party, we VACATE the award of costs\\nand REMAND that issue to the district court.\\n\\n Case: 17-20808 Document: 00515086670 Page: 2 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n I.\\n Jeff Faludi became a licensed lawyer in 1998, and he practiced law for\\nsixteen years until he allowed his license to lapse. Around the same time, one\\nof his former colleagues offered him a consulting position at a newly-formed oil\\nand gas services company, U.S. Shale Solutions, L.L.C. Faludi accepted the\\nposition, and the parties signed an “Independent Contractor Master\\nConsulting Services Agreement” in November 2014.\\n Under the agreement, Faludi agreed to work for U.S. Shale for “an\\nindefinite period of time” at a rate of $1,000 per day for every day he worked\\nin Houston and $1,350 per day for every day he worked outside of Houston.\\nThe agreement required Faludi to submit invoices to U.S. Shale for payment\\ntwice a month. The agreement also contained a non-compete clause\\nprohibiting Faludi from working for U.S. Shale’s competitors while the\\nagreement was in effect and for one year after its termination.\\n During the approximately sixteen months that Faludi worked for U.S.\\nShale, he submitted invoices to U.S. Shale once or twice a month. Although\\nhis day rate applied regardless of how many hours he worked, he often billed\\nU.S. Shale for less than the day rate when he did not work a full day. Faludi\\ntestified that he did this voluntarily, and U.S. Shale paid the requested\\namounts without asking why Faludi had billed for less than his day rate. Even\\nwith these prorated invoices, Faludi was paid at least $1,000 for every week in\\nwhich he performed work for U.S. Shale, and his annual compensation was\\napproximately $260,000.\\n Faludi left U.S. Shale in March 2016 after an internal reorganization.\\nShortly thereafter, he filed this lawsuit against the company for unpaid\\novertime wages he claimed he was owed under the FLSA. U.S. Shale sought\\nsummary judgment in the district court, arguing that Faludi was an\\nindependent contractor and thus not subject to the FLSA, or alternatively that\\n 2\\n\\n Case: 17-20808 Document: 00515086670 Page: 3 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\nhe was an exempt employee under either the “practice of law” exemption or the\\n“highly compensated employee” exemption to the FLSA. Faludi also sought a\\npartial summary judgment on the ground that he was an employee under the\\nFLSA and did not fall under any exemption.\\n The district court determined that genuine issues of material fact existed\\nas to whether Faludi was an employee or an independent contractor and\\nwhether he fell within the FLSA’s practice of law exemption. However, the\\ndistrict court granted U.S. Shale’s summary judgment motion because it found\\nthat Faludi was exempt as a matter of law under the highly compensated\\nemployee exemption to the FLSA. Although U.S. Shale was the prevailing\\nparty, the district court did not award U.S. Shale costs, nor did it explain why\\nit declined to do so. Faludi appeals the adverse summary judgment, and U.S.\\nShale cross-appeals on the issue of costs.\\n II.\\n We review a district court’s grant of summary judgment de novo.\\nJohnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014).\\nWhere the parties filed cross-motions for summary judgment, “we review each\\nparty’s motion independently, viewing the evidence and inferences in the light\\nmost favorable to the nonmoving party.” Parrish v. Premier Directional\\nDrilling, L.P., 917 F.3d 369, 380 (5th Cir. 2019) (quoting Duval v. N. Assurance\\nCo. of Am., 722 F.3d 300, 303 (5th Cir. 2013)). Summary judgment is\\nappropriate when “the movant shows that there is no genuine dispute as to\\nany material fact and the movant is entitled to judgment as a matter of law.”\\nFed. R. Civ. P. 56(a). We review a district court’s award of costs for an abuse\\nof discretion. Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th\\nCir. 2010).\\n\\n\\n\\n\\n 3\\n\\n Case: 17-20808 Document: 00515086670 Page: 4 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n III.\\n Under the FLSA, an employer must pay overtime compensation to its\\nnon-exempt employees who work more than forty hours a week. Cleveland v.\\nCity of Elmendorf, 388 F.3d 522, 526 (5th Cir. 2004). In contrast, independent\\ncontractors are not entitled to overtime under the FLSA. See 29 U.S.C.\\n§ 207(a)(1) (“[N]o employer shall employ any of his employees . . . for a\\nworkweek longer than forty hours unless such employee receives [overtime]\\ncompensation[.]” (emphasis added)); Parrish, 917 F.3d at 379 (explaining that\\nto make a prima facie case for unpaid overtime, a plaintiff must prove, inter\\nalia, that “there existed an employer-employee relationship during the unpaid\\novertime periods claimed”). In addition, the FLSA describes various types of\\nexempt employees who are excluded from the overtime requirement. See 29\\nU.S.C. §§ 207, 213. Relevant here, “the FLSA excludes from this requirement\\nthose employees working in a bona fide executive, administrative or\\nprofessional capacity.” Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203\\nF.3d 326, 331 (5th Cir. 2000) (citing 29 U.S.C. § 213(a)(1)).\\n Faludi argues on appeal that he was an employee and that no FLSA\\nexemption applied to him, so U.S. Shale was required to pay him overtime\\nunder the statute. U.S. Shale counters that Faludi was either an independent\\ncontractor or, in the alternative, an exempt employee under the highly\\ncompensated employee and practice of law exemptions to the FLSA—both of\\nwhich are regulatory expansions on the “bona fide executive, administrative,\\nor professional” exemption in 29 U.S.C. § 213(a)(1). See 29 C.F.R. § 541.601\\n(highly compensated employee exemption); 29 C.F.R. § 541.304(a)(1) (practice\\nof law exemption). We agree with the conclusion reached by the district court:\\nFaludi was exempt from the FLSA as a highly compensated employee and was\\ntherefore not entitled to overtime as a matter of law.\\n\\n\\n 4\\n\\n Case: 17-20808 Document: 00515086670 Page: 5 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n “[T]he ultimate decision whether [an] employee is exempt from the\\nFLSA’s overtime compensation provisions is a question of law.” Lott, 203 F.3d\\nat 331. The employer has the burden of establishing that an exemption applies\\nby a preponderance of the evidence. Meza v. Intelligent Mexican Mktg., Inc.,\\n720 F.3d 577, 581 (5th Cir. 2013). Under the Supreme Court’s decision in\\nEncino Motorcars, we must give FLSA exemptions a “fair reading” rather than\\nnarrowly construing them against the employer. Encino Motorcars, LLC v.\\nNavarro, 138 S. Ct. 1134, 1142 (2018); see also Carley v. Crest Pumping Techs.,\\nL.L.C., 890 F.3d 575, 579 (5th Cir. 2018).\\n Under the version of the highly compensated employee exemption in\\neffect when Faludi worked for U.S. Shale, an employee is exempt from the\\nFLSA’s overtime requirements if (1) he receives “total annual compensation of\\nat least $100,000”; and (2) he “customarily and regularly performs any one or\\nmore of the exempt duties or responsibilities of an executive, administrative or\\nprofessional employee[.]” Highly Compensated Employees, 69 Fed. Reg.\\n22,122, 22,269 (April 23, 2004) (current version at 29 C.F.R. § 541.601(a)). The\\nemployee also “must be compensated on a salary basis at a rate of not less than\\n$455 per week[.]” 29 C.F.R. § 541.600(a). The parties agree that Faludi\\nreceived at least $100,000 in annual compensation and that he performed the\\nduties of an executive, administrative, or professional employee under the\\nregulation. Thus, the only remaining issue is whether Faludi was\\ncompensated on a “salary basis.” In relevant part, the regulations provide the\\nfollowing with regard to the salary basis requirement:\\n An employee will be considered to be paid on a “salary basis”\\n within the meaning of these regulations if the employee regularly\\n receives each pay period on a weekly, or less frequent basis, a\\n predetermined amount constituting all or part of the employee’s\\n compensation, which amount is not subject to reduction because of\\n variations in the quality or quantity of the work performed. . . .\\n [A]n exempt employee must receive the full salary for any week in\\n 5\\n\\n Case: 17-20808 Document: 00515086670 Page: 6 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n which the employee performs any work without regard to the\\n number of days or hours worked. Exempt employees need not be\\n paid for any workweek in which they perform no work.\\n\\n29 C.F.R. § 541.602(a).\\n Faludi contends that his day rate of $1,000 (or $1,350 for work outside\\nof Houston) did not satisfy the salary basis requirement because it was not\\ncalculated “on a weekly, or less frequent basis.” 29 C.F.R. § 541.602(a). U.S.\\nShale responds that Faludi was nonetheless compensated on a salary basis\\nbecause his day rate guaranteed him $1,000 for every day that he worked, so\\nhe would receive more than the minimum of $455 per week for any week in\\nwhich he performed work. The text of the regulation favors U.S. Shale.\\n Faludi’s $1,000 day rate plainly constituted “a rate of not less than $455\\nper week” under 29 C.F.R. § 541.600(a): If Faludi worked for even one hour in\\na given week, he was guaranteed $1,000, which exceeds the regulatory\\nminimum of $455. And although Faludi contends that 29 C.F.R. § 541.602(a)\\nrequired his compensation to be calculated “on a weekly, or less frequent\\nbasis,” the text of the regulation only provides that Faludi must have\\n“regularly receive[d] each pay period on a weekly, or less frequent basis, a\\npredetermined amount[.]” But see Hughes v. Gulf Interstate Field Servs., Inc.,\\n878 F.3d 183, 189 (6th Cir. 2017) (indicating without analysis that 29 C.F.R.\\n§ 541.602(a) contemplates that an employee’s salary will be “calculated on a\\nweekly, or less frequent basis” (internal quotation marks omitted)). Faludi’s\\nindependent contractor agreement set a predetermined amount of\\ncompensation he was to receive—$1,000 per day—and provided for the\\nsubmission and payment of invoices on a less-frequent-than-weekly basis—\\ntwice a month. Thus, Faludi regularly received a predetermined amount of\\ncompensation on a weekly or less frequent basis in accordance with 29 C.F.R.\\n§ 541.602(a).\\n\\n 6\\n\\n Case: 17-20808 Document: 00515086670 Page: 7 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n Faludi also argues that his compensation did not meet the salary basis\\nrequirement because it was “subject to reduction because of variations in\\nthe . . . quantity of the work performed.” 29 C.F.R. § 541.602(a). Specifically,\\nFaludi emphasizes that he often did not bill U.S. Shale for his full day rate\\nwhen he worked less than a day and that U.S. Shale approved and paid these\\nprorated invoices. We reject this argument. Faludi’s voluntary reductions to\\nhis own compensation did not render it “subject to reduction” under the\\nregulation. To hold otherwise would permit employees to preclude reliance on\\nthe FLSA’s “bona fide executive, administrative, or professional” exemption by\\nintentionally reducing their own pay.\\n Finally, Faludi suggests that the requirements in 29 C.F.R. § 541.604(b)\\nprevented him from qualifying as a highly compensated employee. That\\nregulation stipulates that:\\n An exempt employee’s earnings may be computed on an hourly, a\\n daily or a shift basis, without losing the exemption or violating the\\n salary basis requirement, if the employment arrangement also\\n includes a guarantee of at least the minimum weekly required\\n amount paid on a salary basis regardless of the number of hours,\\n days or shifts worked, and a reasonable relationship exists\\n between the guaranteed amount and the amount actually earned.\\n The reasonable relationship test will be met if the weekly\\n guarantee is roughly equivalent to the employee’s usual earnings\\n at the assigned hourly, daily or shift rate for the employee’s normal\\n scheduled workweek.\\n\\n29 C.F.R. § 541.604(b). Faludi points out that no reasonable relationship\\nexisted between his $1,000 day rate and the amount he actually earned each\\nweek, which was often four or five times his day rate. Faludi’s argument once\\nagain misses the mark: Whether his compensation satisfied the reasonable\\nrelationship test is irrelevant because 29 C.F.R. § 541.604(b) does not apply to\\nemployees who meet the requirements of the highly compensated employee\\nexemption set out in 29 C.F.R. §§ 541.600, 541.601, and 541.602. Anani v. CVS\\n 7\\n\\n Case: 17-20808 Document: 00515086670 Page: 8 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\nRX Servs., Inc., 730 F.3d 146, 149 (2d Cir. 2013); Litz v. Saint Consulting Grp.,\\nInc., 772 F.3d 1, 5 (1st Cir. 2014). Because Faludi met these requirements—\\nspecifically, because his $1,000 day rate guaranteed him at least $455 per week\\nand he regularly received that predetermined amount on a weekly or less\\nfrequent basis—he was exempt from the FLSA’s overtime requirements as a\\nhighly compensated employee.\\n We therefore hold that the district court correctly granted summary\\njudgment on the ground that Faludi fit within the highly compensated\\nemployee exemption to the FLSA. As a result, we need not determine whether\\nhe was an employee or independent contractor or whether he also fit within\\nthe practice of law exemption.\\n IV.\\n We next turn to the question of whether the district court erred in\\ndeclining to award U.S. Shale costs as the prevailing party. U.S. Shale\\ncontends that it was entitled to costs under Federal Rule of Civil Procedure\\n54(d) because “[t]he FLSA does not preclude an award of costs to a prevailing\\ndefendant.” As a result, U.S. Shale urges us to reverse and remand with an\\ninstruction to the district court to award U.S. Shale costs on remand. Faludi\\nconcedes that we must reverse and remand on the costs issue, but he asks us\\nto remand for the district court to consider whether U.S. Shale is entitled to\\ncosts, and if the district court again declines to award costs to U.S. Shale, to\\nexplain its reasons for doing so. We agree with Faludi.\\n Rule 54(d) provides that “[u]nless a federal statute, these rules, or a court\\norder provides otherwise, costs—other than attorney’s fees—should be allowed\\nto the prevailing party.” Fed. R. Civ. P. 54(d). Under the FLSA, “[t]he court . . .\\nshall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow\\na reasonable attorney’s fee to be paid by the defendant, and costs of the action.”\\n29 U.S.C. § 216(b) (emphasis added). As U.S. Shale observes and Faludi\\n 8\\n\\n Case: 17-20808 Document: 00515086670 Page: 9 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\nconcedes, this provision in the FLSA does not preclude an award of costs to a\\nprevailing defendant. And we have explained that “a court ‘may neither deny\\nnor reduce a prevailing party’s request for cost[s] without first articulating\\nsome good reason for doing so.’” Pacheco v. Mineta, 448 F.3d 783, 794 (5th Cir.\\n2006) (quoting Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)). While\\nthe district court’s decision not to award costs to U.S. Shale may have been\\nwell-reasoned, its final judgment does not reveal that reasoning. Accordingly,\\nwe must vacate the award of costs and remand the issue to the district court.\\nOn remand, the district court should award U.S. Shale its costs or, in the\\nalternative, provide its reasons for declining to do so. See id. at 795 (“[W]e\\nvacate the award of costs and remand for a re-determination of whether (or to\\nwhat extent) costs should be awarded to the prevailing party and, if not, the\\nreasons for that denial.”).\\n V.\\n The district court properly concluded that Faludi was not entitled to\\novertime compensation under the FLSA because he was exempt as a highly\\ncompensated employee. We therefore AFFIRM summary judgment in favor of\\nU.S. Shale. We VACATE the district court’s award of costs and REMAND that\\nissue, directing the district court to either award costs to U.S. Shale or state\\nits reasons for declining to do so.\\n\\n\\n\\n\\n 9\\n\\n Case: 17-20808 Document: 00515086670 Page: 10 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431897/\", \"author_raw\": \"JENNIFER WALKER ELROD, Circuit Judge:\"}, {\"author\": \"JAMES C. HO, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JAMES C. HO, Circuit Judge, dissenting:\\n If we were limited to the statutes enacted by Congress, as our Founders\\nunderstood the Constitution to require, I would have voted with the majority.\\nBut we are also bound by regulations issued by the Department of Labor, and\\nbecause I read those differently from the majority, I respectfully dissent.\\n The Constitution vests “[a]ll legislative powers herein granted” in\\nCongress. U.S. CONST. art. I, § 1. So the power to impose rules restricting\\nliberty rests exclusively in Congress. As Justice Gorsuch recently wrote, joined\\nby the Chief Justice and Justice Thomas: “The Constitution promises that only\\nthe people’s elected representatives may adopt new federal laws restricting\\nliberty,” and “[n]o one, not even Congress, ha[s] the right to alter that\\narrangement.” Gundy v. United States, 139 S. Ct. 2116, 2131, 2133 (2019)\\n(Gorsuch, J., dissenting) (emphasis added). Our Founders’ reasoning was\\nsimple: “They believed the new federal government’s most dangerous power\\nwas the power to enact laws restricting the people’s liberty. An ‘excess of law-\\nmaking’ was, in their words, one of ‘the diseases to which our governments are\\nmost liable.’” Id. at 2134 (quoting THE FEDERALIST No. 62 (James Madison)).\\n This understanding of the legislative power has lain dormant for nearly\\na century. But four members of the Supreme Court have recently expressed\\ninterest in breathing life back into the doctrine. See id. at 2130–31 (Alito, J.,\\nconcurring); id. at 2131–43 (Gorsuch, J., dissenting). See also Dep’t of Transp.\\nv. Ass’n of Am. Railroads, 135 S. Ct. 1225, 1242 (2015) (Thomas, J., concurring)\\n(“The function at issue here is the formulation of generally applicable rules of\\nprivate conduct. Under the original understanding of the Constitution, that\\nfunction requires the exercise of legislative power.”); Whitman v. Am. Trucking\\nAss’n, 531 U.S. 457, 487 (2001) (Thomas, J., concurring).\\n This case provides one modest illustration of how restoring the Founders’\\nvision can affect how we decide cases.\\n 10\\n\\n Case: 17-20808 Document: 00515086670 Page: 11 Date Filed: 08/21/2019\\n\\n\\n No. 17-20808\\n\\n If we were looking only at statutes enacted by Congress, I would join my\\ncolleagues in affirming the district court, because it seems obvious that Jeff\\nFaludi was “employed in a bona fide . . . professional capacity” and therefore\\nexempt from the overtime requirements of the Fair Labor Standards Act. 29\\nU.S.C. § 213(a)(1).\\n But Congress has delegated to the Secretary of Labor the power to both\\n“define[] and delimit[]” the scope of the professional exception, and thereby\\ndetermine who shall and shall not be subject to federal overtime rules. Id. And\\nunder my best reading of the relevant Labor Department regulations, I part\\ncompany with my colleagues.\\n That is because the method by which U.S. Shale compensates Faludi\\ndoes not satisfy the “salary-basis” test set forth by the Secretary:\\n An employee will be considered to be paid on a “salary basis”\\n within the meaning of these regulations if the employee regularly\\n receives each pay period on a weekly, or less frequent basis, a\\n predetermined amount constituting all or part of the employee’s\\n compensation, which amount is not subject to reduction because of\\n variations in the quality or quantity of the work performed.\\n Subject to the exceptions provided in paragraph (b) of this section,\\n an exempt employee must receive the full salary for any week in\\n which the employee performs any work without regard to the\\n number of days or hours worked.\\n\\n29 C.F.R. § 541.602(a) (emphases added).\\n As the majority correctly notes, U.S. Shale paid Faludi on a daily, not\\nweekly, rate. Faludi did not “regularly receive” a “predetermined amount” on\\na weekly basis. Instead, his pay depended on the number of days he worked.\\n U.S. Shale creatively argues that Faludi’s daily rate of $1,000 can be\\nrecharacterized as a weekly rate of at least $1,000, so long as he works at least\\none day a week. But that does not alter the fact that Faludi receives a\\n“predetermined amount” on a daily basis, and not “on a weekly, or less frequent\\nbasis.” Nor can I reconcile U.S. Shale’s theory with the requirement that “an\\n 11\\n\\n Case: 17-20808 Document: 00515086670 Page: 12 Date Filed: 08/21/2019\\n\\n\\n No. 17-20808\\n\\nexempt employee must receive the full salary for any week in which the\\nemployee performs any work without regard to the number of days or hours\\nworked.” Id. (emphases added).\\n Our reading of 29 C.F.R. § 541.602(a) is bolstered by 29 C.F.R.\\n§ 541.604(b), which provides:\\n An exempt employee’s earnings may be computed on . . . a daily. . .\\n basis, without . . . violating the salary basis requirement, if [1] the\\n employment arrangement also includes a guarantee of at least the\\n minimum weekly required amount paid on a salary basis\\n regardless of the number of hours, days or shifts worked, and [2] a\\n reasonable relationship exists between the guaranteed amount\\n and the amount actually earned.\\n\\n29 C.F.R. § 541.604(b). See also Hughes v. Gulf Interstate Field Servs, Inc., 878\\nF.3d 183, 189 (6th Cir. 2017) (relying on 29 C.F.R. § 541.604(b) because “[t]he\\ntext of § 541.602(a) does not tell us what to do when an employee’s salary is\\nnot clearly calculated ‘on a weekly, or less frequent basis’”).\\n According to U.S. Shale, the “guaranteed” “weekly required amount” is\\n$1,000. But that weekly guarantee does not have a “reasonable relationship”\\nwith Faludi’s total compensation of approximately $260,000, as the regulations\\nmake clear. See 29 C.F.R. § 541.604(b) (“The reasonable relationship test will\\nbe met if the weekly guarantee is roughly equivalent to the employee’s usual\\nearnings at the assigned hourly, daily or shift rate for the employee’s normal\\nscheduled workweek. Thus, for example, if the weekly salary level is $913, an\\nexempt employee guaranteed compensation of at least $1,000 for any week in\\nwhich the employee performs any work, and who normally works four or five\\nshifts each week, may be paid $300 per shift without violating the salary basis\\nrequirement.”).\\n Accordingly, I would reverse and remand for further proceedings, to\\nallow the district court to address in the first instance whether Faludi is an\\nindependent contractor and therefore not entitled to overtime.\\n 12\\n\\n Case: 17-20808 Document: 00515086670 Page: 13 Date Filed: 08/21/2019\\n\\n\\n No. 17-20808\\n\\n ***\\n Under the Constitution, the people have the right to fire those who make\\nthe law. “[B]y directing that legislating be done only by elected representatives\\nin a public process, the Constitution sought to ensure that the lines of\\naccountability would be clear: The sovereign people would know, without\\nambiguity, whom to hold accountable for the laws they would have to follow.”\\nGundy, 139 S. Ct. at 2134 (Gorsuch, J., dissenting) (citations omitted). See also\\nid. at 2133–34 (“‘[N]or can the people be bound by any laws but such as are\\nenacted by those whom they have chosen and authorised to make laws for\\nthem.’”) (quoting JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT\\nAND A LETTER CONCERNING TOLERATION § 141).\\n That vision is eviscerated when the legislative power is exercised, not by\\nduly elected members of Congress, but by Executive Branch officials who, once\\nappointed, are effectively untouchable by the people. 1\\n Perhaps the Supreme Court will someday revive the nondelegation\\ndoctrine and restore the Founders’ vision of the Constitution. 2 But until then,\\nI agree with the majority that we are duty-bound to follow Labor Department\\nregulations. We simply disagree on the best reading of those regulations. For\\nthat reason, I respectfully dissent.\\n\\n\\n\\n\\n 1 See also Voices for Int’l Bus. & Educ., Inc. v. NLRB, 905 F.3d 770, 781 (5th Cir. 2018)\\n(Ho, J., concurring) (“[I]f law is to be made or changed, it must be done as the Constitution\\ncommands—through Article I, Section 7, not Article II, Section 2.”).\\n 2 The Supreme Court is not the only branch of government that can play a role. In\\n\\nWest Virginia, for example, administrative agencies can promulgate regulations, but only if\\nthose regulations are first approved by the Legislature. See W. VA. CODE § 29A-3-11, 12.\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4431897/\", \"author_raw\": \"JAMES C. HO, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"HO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HIGGINBOTHAM\": \", Circuit\", \"ELROD\": \", Circuit\", \"HO\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4654644/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jeff Faludi v. U.S. Shale Solutions, L.L.C.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-21\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-20808 Document: 00515086670 Page: 1 Date Filed: 08/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-20808 FILED\n August 21, 2019\n Lyle W. Cayce\nJEFF FALUDI, Clerk\n\n Plaintiff – Appellant / Cross-Appellee,\n\nv.\n\nU.S. SHALE SOLUTIONS, L.L.C.,\n\n Defendant – Appellee / Cross-Appellant.\n\n\n\n\n Appeals from the United States District Court\n for the Southern District of Texas\n\n\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\nJENNIFER WALKER ELROD, Circuit Judge:\n Appellant Jeff Faludi, a former practicing attorney, took a consulting job\nat an oil and gas services company. When Faludi left the company, he filed\nthis lawsuit under the Fair Labor Standards Act (FLSA), seeking to recover\nunpaid overtime wages. Because Faludi was exempt from the FLSA, we\nAFFIRM the district court’s summary judgment in favor of his former\nemployer. However, because the district court did not state its reasons for\ndeclining to award costs to the prevailing party, we VACATE the award of costs\nand REMAND that issue to the district court.\n\n Case: 17-20808 Document: 00515086670 Page: 2 Date Filed: 08/21/2019\n\n\n\n No. 17-20808\n I.\n Jeff Faludi became a licensed lawyer in 1998, and he practiced law for\nsixteen years until he allowed his license to lapse. Around the same time, one\nof his former colleagues offered him a consulting position at a newly-formed oil\nand gas services company, U.S. Shale Solutions, L.L.C. Faludi accepted the\nposition, and the parties signed an “Independent Contractor Master\nConsulting Services Agreement” in November 2014.\n Under the agreement, Faludi agreed to work for U.S. Shale for “an\nindefinite period of time” at a rate of $1,000 per day for every day he worked\nin Houston and $1,350 per day for every day he worked outside of Houston.\nThe agreement required Faludi to submit invoices to U.S. Shale for payment\ntwice a month. The agreement also contained a non-compete clause\nprohibiting Faludi from working for U.S. Shale’s competitors while the\nagreement was in effect and for one year after its termination.\n During the approximately sixteen months that Faludi worked for U.S.\nShale, he submitted invoices to U.S. Shale once or twice a month. Although\nhis day rate applied regardless of how many hours he worked, he often billed\nU.S. Shale for less than the day rate when he did not work a full day. Faludi\ntestified that he did this voluntarily, and U.S. Shale paid the requested\namounts without asking why Faludi had billed for less than his day rate. Even\nwith these prorated invoices, Faludi was paid at least $1,000 for every week in\nwhich he performed work for U.S. Shale, and his annual compensation was\napproximately $260,000.\n Faludi left U.S. Shale in March 2016 after an internal reorganization.\nShortly thereafter, he filed this lawsuit against the company for unpaid\novertime wages he claimed he was owed under the FLSA. U.S. Shale sought\nsummary judgment in the district court, arguing that Faludi was an\nindependent contractor and thus not subject to the FLSA, or alternatively that\n 2\n\n Case: 17-20808 Document: 00515086670 Page: 3 Date Filed: 08/21/2019\n\n\n\n No. 17-20808\nhe was an exempt employee under either the “practice of law” exemption or the\n“highly compensated employee” exemption to the FLSA. Faludi also sought a\npartial summary judgment on the ground that he was an employee under the\nFLSA and did not fall under any exemption.\n The district court determined that genuine issues of material fact existed\nas to whether Faludi was an employee or an independent contractor and\nwhether he fell within the FLSA’s practice of law exemption. However, the\ndistrict court granted U.S. Shale’s summary judgment motion because it found\nthat Faludi was exempt as a matter of law under the highly compensated\nemployee exemption to the FLSA. Although U.S. Shale was the prevailing\nparty, the district court did not award U.S. Shale costs, nor did it explain why\nit declined to do so. Faludi appeals the adverse summary judgment, and U.S.\nShale cross-appeals on the issue of costs.\n II.\n We review a district court’s grant of summary judgment de novo.\nJohnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014).\nWhere the parties filed cross-motions for summary judgment, “we review each\nparty’s motion independently, viewing the evidence and inferences in the light\nmost favorable to the nonmoving party.” Parrish v. Premier Directional\nDrilling, L.P., 917 F.3d 369, 380 (5th Cir. 2019) (quoting Duval v. N. Assurance\nCo. of Am., 722 F.3d 300, 303 (5th Cir. 2013)). Summary judgment is\nappropriate when “the movant shows that there is no genuine dispute as to\nany material fact and the movant is entitled to judgment as a matter of law.”\nFed. R. Civ. P. 56(a). We review a district court’s award of costs for an abuse\nof discretion. Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th\nCir. 2010).\n\n\n\n\n 3\n\n Case: 17-20808 Document: 00515086670 Page: 4 Date Filed: 08/21/2019\n\n\n\n No. 17-20808\n III.\n Under the FLSA, an employer must pay overtime compensation to its\nnon-exempt employees who work more than forty hours a week. Cleveland v.\nCity of Elmendorf, 388 F.3d 522, 526 (5th Cir. 2004). In contrast, independent\ncontractors are not entitled to overtime under the FLSA. See 29 U.S.C.\n§ 207(a)(1) (“[N]o employer shall employ any of his employees . . . for a\nworkweek longer than forty hours unless such employee receives [overtime]\ncompensation[.]” (emphasis added)); Parrish, 917 F.3d at 379 (explaining that\nto make a prima facie case for unpaid overtime, a plaintiff must prove, inter\nalia, that “there existed an employer-employee relationship during the unpaid\novertime periods claimed”). In addition, the FLSA describes various types of\nexempt employees who are excluded from the overtime requirement. See 29\nU.S.C. §§ 207, 213. Relevant here, “the FLSA excludes from this requirement\nthose employees working in a bona fide executive, administrative or\nprofessional capacity.” Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203\nF.3d 326, 331 (5th Cir. 2000) (citing 29 U.S.C. § 213(a)(1)).\n Faludi argues on appeal that he was an employee and that no FLSA\nexemption applied to him, so U.S. Shale was required to pay him overtime\nunder the statute. U.S. Shale counters that Faludi was either an independent\ncontractor or, in the alternative, an exempt employee under the highly\ncompensated employee and practice of law exemptions to the FLSA—both of\nwhich are regulatory expansions on the “bona fide executive, administrative,\nor professional” exemption in 29 U.S.C. § 213(a)(1). See 29 C.F.R. § 541.601\n(highly compensated employee exemption); 29 C.F.R. § 541.304(a)(1) (practice\nof law exemption). We agree with the conclusion reached by the district court:\nFaludi was exempt from the FLSA as a highly compensated employee and was\ntherefore not entitled to overtime as a matter of law.\n\n\n 4\n\n Case: 17-20808 Document: 00515086670 Page: 5 Date Filed: 08/21/2019\n\n\n\n No. 17-20808\n “[T]he ultimate decision whether [an] employee is exempt from the\nFLSA’s overtime compensation provisions is a question of law.” Lott, 203 F.3d\nat 331. The employer has the burden of establishing that an exemption applies\nby a preponderance of the evidence. Meza v. Intelligent Mexican Mktg., Inc.,\n720 F.3d 577, 581 (5th Cir. 2013). Under the Supreme Court’s decision in\nEncino Motorcars, we must give FLSA exemptions a “fair reading” rather than\nnarrowly construing them against the employer. Encino Motorcars, LLC v.\nNavarro, 138 S. Ct. 1134, 1142 (2018); see also Carley v. Crest Pumping Techs.,\nL.L.C., 890 F.3d 575, 579 (5th Cir. 2018).\n Under the version of the highly compensated employee exemption in\neffect when Faludi worked for U.S. Shale, an employee is exempt from the\nFLSA’s overtime requirements if (1) he receives “total annual compensation of\nat least $100,000”; and (2) he “customarily and regularly performs any one or\nmore of the exempt duties or responsibilities of an executive, administrative or\nprofessional employee[.]” Highly Compensated Employees, 69 Fed. Reg.\n22,122, 22,269 (April 23, 2004) (current version at 29 C.F.R. § 541.601(a)). The\nemployee also “must be compensated on a salary basis at a rate of not less than\n$455 per week[.]” 29 C.F.R. § 541.600(a). The parties agree that Faludi\nreceived at least $100,000 in annual compensation and that he performed the\nduties of an executive, administrative, or professional employee under the\nregulation. Thus, the only remaining issue is whether Faludi was\ncompensated on a “salary basis.” In relevant part, the regulations provide the\nfollowing with regard to the salary basis requirement:\n An employee will be considered to be paid on a “salary basis”\n within the meaning of these regulations if the employee regularly\n receives each pay period on a weekly, or less frequent basis, a\n predetermined amount constituting all or part of the employee’s\n compensation, which amount is not subject to reduction because of\n variations in the quality or quantity of the work performed. . . .\n [A]n exempt employee must receive the full salary for any week in\n 5\n\n Case: 17-20808 Document: 00515086670 Page: 6 Date Filed: 08/21/2019\n\n\n\n No. 17-20808\n which the employee performs any work without regard to the\n number of days or hours worked. Exempt employees need not be\n paid for any workweek in which they perform no work.\n\n29 C.F.R. § 541.602(a).\n Faludi contends that his day rate of $1,000 (or $1,350 for work outside\nof Houston) did not satisfy the salary basis requirement because it was not\ncalculated “on a weekly, or less frequent basis.” 29 C.F.R. § 541.602(a). U.S.\nShale responds that Faludi was nonetheless compensated on a salary basis\nbecause his day rate guaranteed him $1,000 for every day that he worked, so\nhe would receive more than the minimum of $455 per week for any week in\nwhich he performed work. The text of the regulation favors U.S. Shale.\n Faludi’s $1,000 day rate plainly constituted “a rate of not less than $455\nper week” under 29 C.F.R. § 541.600(a): If Faludi worked for even one hour in\na given week, he was guaranteed $1,000, which exceeds the regulatory\nminimum of $455. And although Faludi contends that 29 C.F.R. § 541.602(a)\nrequired his compensation to be calculated “on a weekly, or less frequent\nbasis,” the text of the regulation only provides that Faludi must have\n“regularly receive[d] each pay period on a weekly, or less frequent basis, a\npredetermined amount[.]” But see Hughes v. Gulf Interstate Field Servs., Inc.,\n878 F.3d 183, 189 (6th Cir. 2017) (indicating without analysis that 29 C.F.R.\n§ 541.602(a) contemplates that an employee’s salary will be “calculated on a\nweekly, or less frequent basis” (internal quotation marks omitted)). Faludi’s\nindependent contractor agreement set a predetermined amount of\ncompensation he was to receive—$1,000 per day—and provided for the\nsubmission and payment of invoices on a less-frequent-than-weekly basis—\ntwice a month. Thus, Faludi regularly received a predetermined amount of\ncompensation on a weekly or less frequent basis in accordance with 29 C.F.R.\n§ 541.602(a).\n\n 6\n\n Case: 17-20808 Document: 00515086670 Page: 7 Date Filed: 08/21/2019\n\n\n\n No. 17-20808\n Faludi also argues that his compensation did not meet the salary basis\nrequirement because it was “subject to reduction because of variations in\nthe . . . quantity of the work performed.” 29 C.F.R. § 541.602(a). Specifically,\nFaludi emphasizes that he often did not bill U.S. Shale for his full day rate\nwhen he worked less than a day and that U.S. Shale approved and paid these\nprorated invoices. We reject this argument. Faludi’s voluntary reductions to\nhis own compensation did not render it “subject to reduction” under the\nregulation. To hold otherwise would permit employees to preclude reliance on\nthe FLSA’s “bona fide executive, administrative, or professional” exemption by\nintentionally reducing their own pay.\n Finally, Faludi suggests that the requirements in 29 C.F.R. § 541.604(b)\nprevented him from qualifying as a highly compensated employee. That\nregulation stipulates that:\n An exempt employee’s earnings may be computed on an hourly, a\n daily or a shift basis, without losing the exemption or violating the\n salary basis requirement, if the employment arrangement also\n includes a guarantee of at least the minimum weekly required\n amount paid on a salary basis regardless of the number of hours,\n days or shifts worked, and a reasonable relationship exists\n between the guaranteed amount and the amount actually earned.\n The reasonable relationship test will be met if the weekly\n guarantee is roughly equivalent to the employee’s usual earnings\n at the assigned hourly, daily or shift rate for the employee’s normal\n scheduled workweek.\n\n29 C.F.R. § 541.604(b). Faludi points out that no reasonable relationship\nexisted between his $1,000 day rate and the amount he actually earned each\nweek, which was often four or five times his day rate. Faludi’s argument once\nagain misses the mark: Whether his compensation satisfied the reasonable\nrelationship test is irrelevant because 29 C.F.R. § 541.604(b) does not apply to\nemployees who meet the requirements of the highly compensated employee\nexemption set out in 29 C.F.R. §§ 541.600, 541.601, and 541.602. Anani v. CVS\n 7\n\n Case: 17-20808 Document: 00515086670 Page: 8 Date Filed: 08/21/2019\n\n\n\n No. 17-20808\nRX Servs., Inc., 730 F.3d 146, 149 (2d Cir. 2013); Litz v. Saint Consulting Grp.,\nInc., 772 F.3d 1, 5 (1st Cir. 2014). Because Faludi met these requirements—\nspecifically, because his $1,000 day rate guaranteed him at least $455 per week\nand he regularly received that predetermined amount on a weekly or less\nfrequent basis—he was exempt from the FLSA’s overtime requirements as a\nhighly compensated employee.\n We therefore hold that the district court correctly granted summary\njudgment on the ground that Faludi fit within the highly compensated\nemployee exemption to the FLSA. As a result, we need not determine whether\nhe was an employee or independent contractor or whether he also fit within\nthe practice of law exemption.\n IV.\n We next turn to the question of whether the district court erred in\ndeclining to award U.S. Shale costs as the prevailing party. U.S. Shale\ncontends that it was entitled to costs under Federal Rule of Civil Procedure\n54(d) because “[t]he FLSA does not preclude an award of costs to a prevailing\ndefendant.” As a result, U.S. Shale urges us to reverse and remand with an\ninstruction to the district court to award U.S. Shale costs on remand. Faludi\nconcedes that we must reverse and remand on the costs issue, but he asks us\nto remand for the district court to consider whether U.S. Shale is entitled to\ncosts, and if the district court again declines to award costs to U.S. Shale, to\nexplain its reasons for doing so. We agree with Faludi.\n Rule 54(d) provides that “[u]nless a federal statute, these rules, or a court\norder provides otherwise, costs—other than attorney’s fees—should be allowed\nto the prevailing party.” Fed. R. Civ. P. 54(d). Under the FLSA, “[t]he court . . .\nshall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow\na reasonable attorney’s fee to be paid by the defendant, and costs of the action.”\n29 U.S.C. § 216(b) (emphasis added). As U.S. Shale observes and Faludi\n 8\n\n Case: 17-20808 Document: 00515086670 Page: 9 Date Filed: 08/21/2019\n\n\n\n No. 17-20808\nconcedes, this provision in the FLSA does not preclude an award of costs to a\nprevailing defendant. And we have explained that “a court ‘may neither deny\nnor reduce a prevailing party’s request for cost[s] without first articulating\nsome good reason for doing so.’” Pacheco v. Mineta, 448 F.3d 783, 794 (5th Cir.\n2006) (quoting Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)). While\nthe district court’s decision not to award costs to U.S. Shale may have been\nwell-reasoned, its final judgment does not reveal that reasoning. Accordingly,\nwe must vacate the award of costs and remand the issue to the district court.\nOn remand, the district court should award U.S. Shale its costs or, in the\nalternative, provide its reasons for declining to do so. See id. at 795 (“[W]e\nvacate the award of costs and remand for a re-determination of whether (or to\nwhat extent) costs should be awarded to the prevailing party and, if not, the\nreasons for that denial.”).\n V.\n The district court properly concluded that Faludi was not entitled to\novertime compensation under the FLSA because he was exempt as a highly\ncompensated employee. We therefore AFFIRM summary judgment in favor of\nU.S. Shale. We VACATE the district court’s award of costs and REMAND that\nissue, directing the district court to either award costs to U.S. Shale or state\nits reasons for declining to do so.\n\n\n\n\n 9\n\n Case: 17-20808 Document: 00515086670 Page: 10 Date Filed: 08/21/2019\n\n\n\n No. 17-20808\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jeff Faludi v. U.S. Shale Solutions, L.L.C.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-21\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-20808 Document: 00515086670 Page: 1 Date Filed: 08/21/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-20808 FILED\\n August 21, 2019\\n Lyle W. Cayce\\nJEFF FALUDI, Clerk\\n\\n Plaintiff – Appellant / Cross-Appellee,\\n\\nv.\\n\\nU.S. SHALE SOLUTIONS, L.L.C.,\\n\\n Defendant – Appellee / Cross-Appellant.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\\nJENNIFER WALKER ELROD, Circuit Judge:\\n Appellant Jeff Faludi, a former practicing attorney, took a consulting job\\nat an oil and gas services company. When Faludi left the company, he filed\\nthis lawsuit under the Fair Labor Standards Act (FLSA), seeking to recover\\nunpaid overtime wages. Because Faludi was exempt from the FLSA, we\\nAFFIRM the district court’s summary judgment in favor of his former\\nemployer. However, because the district court did not state its reasons for\\ndeclining to award costs to the prevailing party, we VACATE the award of costs\\nand REMAND that issue to the district court.\\n\\n Case: 17-20808 Document: 00515086670 Page: 2 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n I.\\n Jeff Faludi became a licensed lawyer in 1998, and he practiced law for\\nsixteen years until he allowed his license to lapse. Around the same time, one\\nof his former colleagues offered him a consulting position at a newly-formed oil\\nand gas services company, U.S. Shale Solutions, L.L.C. Faludi accepted the\\nposition, and the parties signed an “Independent Contractor Master\\nConsulting Services Agreement” in November 2014.\\n Under the agreement, Faludi agreed to work for U.S. Shale for “an\\nindefinite period of time” at a rate of $1,000 per day for every day he worked\\nin Houston and $1,350 per day for every day he worked outside of Houston.\\nThe agreement required Faludi to submit invoices to U.S. Shale for payment\\ntwice a month. The agreement also contained a non-compete clause\\nprohibiting Faludi from working for U.S. Shale’s competitors while the\\nagreement was in effect and for one year after its termination.\\n During the approximately sixteen months that Faludi worked for U.S.\\nShale, he submitted invoices to U.S. Shale once or twice a month. Although\\nhis day rate applied regardless of how many hours he worked, he often billed\\nU.S. Shale for less than the day rate when he did not work a full day. Faludi\\ntestified that he did this voluntarily, and U.S. Shale paid the requested\\namounts without asking why Faludi had billed for less than his day rate. Even\\nwith these prorated invoices, Faludi was paid at least $1,000 for every week in\\nwhich he performed work for U.S. Shale, and his annual compensation was\\napproximately $260,000.\\n Faludi left U.S. Shale in March 2016 after an internal reorganization.\\nShortly thereafter, he filed this lawsuit against the company for unpaid\\novertime wages he claimed he was owed under the FLSA. U.S. Shale sought\\nsummary judgment in the district court, arguing that Faludi was an\\nindependent contractor and thus not subject to the FLSA, or alternatively that\\n 2\\n\\n Case: 17-20808 Document: 00515086670 Page: 3 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\nhe was an exempt employee under either the “practice of law” exemption or the\\n“highly compensated employee” exemption to the FLSA. Faludi also sought a\\npartial summary judgment on the ground that he was an employee under the\\nFLSA and did not fall under any exemption.\\n The district court determined that genuine issues of material fact existed\\nas to whether Faludi was an employee or an independent contractor and\\nwhether he fell within the FLSA’s practice of law exemption. However, the\\ndistrict court granted U.S. Shale’s summary judgment motion because it found\\nthat Faludi was exempt as a matter of law under the highly compensated\\nemployee exemption to the FLSA. Although U.S. Shale was the prevailing\\nparty, the district court did not award U.S. Shale costs, nor did it explain why\\nit declined to do so. Faludi appeals the adverse summary judgment, and U.S.\\nShale cross-appeals on the issue of costs.\\n II.\\n We review a district court’s grant of summary judgment de novo.\\nJohnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014).\\nWhere the parties filed cross-motions for summary judgment, “we review each\\nparty’s motion independently, viewing the evidence and inferences in the light\\nmost favorable to the nonmoving party.” Parrish v. Premier Directional\\nDrilling, L.P., 917 F.3d 369, 380 (5th Cir. 2019) (quoting Duval v. N. Assurance\\nCo. of Am., 722 F.3d 300, 303 (5th Cir. 2013)). Summary judgment is\\nappropriate when “the movant shows that there is no genuine dispute as to\\nany material fact and the movant is entitled to judgment as a matter of law.”\\nFed. R. Civ. P. 56(a). We review a district court’s award of costs for an abuse\\nof discretion. Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th\\nCir. 2010).\\n\\n\\n\\n\\n 3\\n\\n Case: 17-20808 Document: 00515086670 Page: 4 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n III.\\n Under the FLSA, an employer must pay overtime compensation to its\\nnon-exempt employees who work more than forty hours a week. Cleveland v.\\nCity of Elmendorf, 388 F.3d 522, 526 (5th Cir. 2004). In contrast, independent\\ncontractors are not entitled to overtime under the FLSA. See 29 U.S.C.\\n§ 207(a)(1) (“[N]o employer shall employ any of his employees . . . for a\\nworkweek longer than forty hours unless such employee receives [overtime]\\ncompensation[.]” (emphasis added)); Parrish, 917 F.3d at 379 (explaining that\\nto make a prima facie case for unpaid overtime, a plaintiff must prove, inter\\nalia, that “there existed an employer-employee relationship during the unpaid\\novertime periods claimed”). In addition, the FLSA describes various types of\\nexempt employees who are excluded from the overtime requirement. See 29\\nU.S.C. §§ 207, 213. Relevant here, “the FLSA excludes from this requirement\\nthose employees working in a bona fide executive, administrative or\\nprofessional capacity.” Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203\\nF.3d 326, 331 (5th Cir. 2000) (citing 29 U.S.C. § 213(a)(1)).\\n Faludi argues on appeal that he was an employee and that no FLSA\\nexemption applied to him, so U.S. Shale was required to pay him overtime\\nunder the statute. U.S. Shale counters that Faludi was either an independent\\ncontractor or, in the alternative, an exempt employee under the highly\\ncompensated employee and practice of law exemptions to the FLSA—both of\\nwhich are regulatory expansions on the “bona fide executive, administrative,\\nor professional” exemption in 29 U.S.C. § 213(a)(1). See 29 C.F.R. § 541.601\\n(highly compensated employee exemption); 29 C.F.R. § 541.304(a)(1) (practice\\nof law exemption). We agree with the conclusion reached by the district court:\\nFaludi was exempt from the FLSA as a highly compensated employee and was\\ntherefore not entitled to overtime as a matter of law.\\n\\n\\n 4\\n\\n Case: 17-20808 Document: 00515086670 Page: 5 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n “[T]he ultimate decision whether [an] employee is exempt from the\\nFLSA’s overtime compensation provisions is a question of law.” Lott, 203 F.3d\\nat 331. The employer has the burden of establishing that an exemption applies\\nby a preponderance of the evidence. Meza v. Intelligent Mexican Mktg., Inc.,\\n720 F.3d 577, 581 (5th Cir. 2013). Under the Supreme Court’s decision in\\nEncino Motorcars, we must give FLSA exemptions a “fair reading” rather than\\nnarrowly construing them against the employer. Encino Motorcars, LLC v.\\nNavarro, 138 S. Ct. 1134, 1142 (2018); see also Carley v. Crest Pumping Techs.,\\nL.L.C., 890 F.3d 575, 579 (5th Cir. 2018).\\n Under the version of the highly compensated employee exemption in\\neffect when Faludi worked for U.S. Shale, an employee is exempt from the\\nFLSA’s overtime requirements if (1) he receives “total annual compensation of\\nat least $100,000”; and (2) he “customarily and regularly performs any one or\\nmore of the exempt duties or responsibilities of an executive, administrative or\\nprofessional employee[.]” Highly Compensated Employees, 69 Fed. Reg.\\n22,122, 22,269 (April 23, 2004) (current version at 29 C.F.R. § 541.601(a)). The\\nemployee also “must be compensated on a salary basis at a rate of not less than\\n$455 per week[.]” 29 C.F.R. § 541.600(a). The parties agree that Faludi\\nreceived at least $100,000 in annual compensation and that he performed the\\nduties of an executive, administrative, or professional employee under the\\nregulation. Thus, the only remaining issue is whether Faludi was\\ncompensated on a “salary basis.” In relevant part, the regulations provide the\\nfollowing with regard to the salary basis requirement:\\n An employee will be considered to be paid on a “salary basis”\\n within the meaning of these regulations if the employee regularly\\n receives each pay period on a weekly, or less frequent basis, a\\n predetermined amount constituting all or part of the employee’s\\n compensation, which amount is not subject to reduction because of\\n variations in the quality or quantity of the work performed. . . .\\n [A]n exempt employee must receive the full salary for any week in\\n 5\\n\\n Case: 17-20808 Document: 00515086670 Page: 6 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n which the employee performs any work without regard to the\\n number of days or hours worked. Exempt employees need not be\\n paid for any workweek in which they perform no work.\\n\\n29 C.F.R. § 541.602(a).\\n Faludi contends that his day rate of $1,000 (or $1,350 for work outside\\nof Houston) did not satisfy the salary basis requirement because it was not\\ncalculated “on a weekly, or less frequent basis.” 29 C.F.R. § 541.602(a). U.S.\\nShale responds that Faludi was nonetheless compensated on a salary basis\\nbecause his day rate guaranteed him $1,000 for every day that he worked, so\\nhe would receive more than the minimum of $455 per week for any week in\\nwhich he performed work. The text of the regulation favors U.S. Shale.\\n Faludi’s $1,000 day rate plainly constituted “a rate of not less than $455\\nper week” under 29 C.F.R. § 541.600(a): If Faludi worked for even one hour in\\na given week, he was guaranteed $1,000, which exceeds the regulatory\\nminimum of $455. And although Faludi contends that 29 C.F.R. § 541.602(a)\\nrequired his compensation to be calculated “on a weekly, or less frequent\\nbasis,” the text of the regulation only provides that Faludi must have\\n“regularly receive[d] each pay period on a weekly, or less frequent basis, a\\npredetermined amount[.]” But see Hughes v. Gulf Interstate Field Servs., Inc.,\\n878 F.3d 183, 189 (6th Cir. 2017) (indicating without analysis that 29 C.F.R.\\n§ 541.602(a) contemplates that an employee’s salary will be “calculated on a\\nweekly, or less frequent basis” (internal quotation marks omitted)). Faludi’s\\nindependent contractor agreement set a predetermined amount of\\ncompensation he was to receive—$1,000 per day—and provided for the\\nsubmission and payment of invoices on a less-frequent-than-weekly basis—\\ntwice a month. Thus, Faludi regularly received a predetermined amount of\\ncompensation on a weekly or less frequent basis in accordance with 29 C.F.R.\\n§ 541.602(a).\\n\\n 6\\n\\n Case: 17-20808 Document: 00515086670 Page: 7 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n Faludi also argues that his compensation did not meet the salary basis\\nrequirement because it was “subject to reduction because of variations in\\nthe . . . quantity of the work performed.” 29 C.F.R. § 541.602(a). Specifically,\\nFaludi emphasizes that he often did not bill U.S. Shale for his full day rate\\nwhen he worked less than a day and that U.S. Shale approved and paid these\\nprorated invoices. We reject this argument. Faludi’s voluntary reductions to\\nhis own compensation did not render it “subject to reduction” under the\\nregulation. To hold otherwise would permit employees to preclude reliance on\\nthe FLSA’s “bona fide executive, administrative, or professional” exemption by\\nintentionally reducing their own pay.\\n Finally, Faludi suggests that the requirements in 29 C.F.R. § 541.604(b)\\nprevented him from qualifying as a highly compensated employee. That\\nregulation stipulates that:\\n An exempt employee’s earnings may be computed on an hourly, a\\n daily or a shift basis, without losing the exemption or violating the\\n salary basis requirement, if the employment arrangement also\\n includes a guarantee of at least the minimum weekly required\\n amount paid on a salary basis regardless of the number of hours,\\n days or shifts worked, and a reasonable relationship exists\\n between the guaranteed amount and the amount actually earned.\\n The reasonable relationship test will be met if the weekly\\n guarantee is roughly equivalent to the employee’s usual earnings\\n at the assigned hourly, daily or shift rate for the employee’s normal\\n scheduled workweek.\\n\\n29 C.F.R. § 541.604(b). Faludi points out that no reasonable relationship\\nexisted between his $1,000 day rate and the amount he actually earned each\\nweek, which was often four or five times his day rate. Faludi’s argument once\\nagain misses the mark: Whether his compensation satisfied the reasonable\\nrelationship test is irrelevant because 29 C.F.R. § 541.604(b) does not apply to\\nemployees who meet the requirements of the highly compensated employee\\nexemption set out in 29 C.F.R. §§ 541.600, 541.601, and 541.602. Anani v. CVS\\n 7\\n\\n Case: 17-20808 Document: 00515086670 Page: 8 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\nRX Servs., Inc., 730 F.3d 146, 149 (2d Cir. 2013); Litz v. Saint Consulting Grp.,\\nInc., 772 F.3d 1, 5 (1st Cir. 2014). Because Faludi met these requirements—\\nspecifically, because his $1,000 day rate guaranteed him at least $455 per week\\nand he regularly received that predetermined amount on a weekly or less\\nfrequent basis—he was exempt from the FLSA’s overtime requirements as a\\nhighly compensated employee.\\n We therefore hold that the district court correctly granted summary\\njudgment on the ground that Faludi fit within the highly compensated\\nemployee exemption to the FLSA. As a result, we need not determine whether\\nhe was an employee or independent contractor or whether he also fit within\\nthe practice of law exemption.\\n IV.\\n We next turn to the question of whether the district court erred in\\ndeclining to award U.S. Shale costs as the prevailing party. U.S. Shale\\ncontends that it was entitled to costs under Federal Rule of Civil Procedure\\n54(d) because “[t]he FLSA does not preclude an award of costs to a prevailing\\ndefendant.” As a result, U.S. Shale urges us to reverse and remand with an\\ninstruction to the district court to award U.S. Shale costs on remand. Faludi\\nconcedes that we must reverse and remand on the costs issue, but he asks us\\nto remand for the district court to consider whether U.S. Shale is entitled to\\ncosts, and if the district court again declines to award costs to U.S. Shale, to\\nexplain its reasons for doing so. We agree with Faludi.\\n Rule 54(d) provides that “[u]nless a federal statute, these rules, or a court\\norder provides otherwise, costs—other than attorney’s fees—should be allowed\\nto the prevailing party.” Fed. R. Civ. P. 54(d). Under the FLSA, “[t]he court . . .\\nshall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow\\na reasonable attorney’s fee to be paid by the defendant, and costs of the action.”\\n29 U.S.C. § 216(b) (emphasis added). As U.S. Shale observes and Faludi\\n 8\\n\\n Case: 17-20808 Document: 00515086670 Page: 9 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\nconcedes, this provision in the FLSA does not preclude an award of costs to a\\nprevailing defendant. And we have explained that “a court ‘may neither deny\\nnor reduce a prevailing party’s request for cost[s] without first articulating\\nsome good reason for doing so.’” Pacheco v. Mineta, 448 F.3d 783, 794 (5th Cir.\\n2006) (quoting Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)). While\\nthe district court’s decision not to award costs to U.S. Shale may have been\\nwell-reasoned, its final judgment does not reveal that reasoning. Accordingly,\\nwe must vacate the award of costs and remand the issue to the district court.\\nOn remand, the district court should award U.S. Shale its costs or, in the\\nalternative, provide its reasons for declining to do so. See id. at 795 (“[W]e\\nvacate the award of costs and remand for a re-determination of whether (or to\\nwhat extent) costs should be awarded to the prevailing party and, if not, the\\nreasons for that denial.”).\\n V.\\n The district court properly concluded that Faludi was not entitled to\\novertime compensation under the FLSA because he was exempt as a highly\\ncompensated employee. We therefore AFFIRM summary judgment in favor of\\nU.S. Shale. We VACATE the district court’s award of costs and REMAND that\\nissue, directing the district court to either award costs to U.S. Shale or state\\nits reasons for declining to do so.\\n\\n\\n\\n\\n 9\\n\\n Case: 17-20808 Document: 00515086670 Page: 10 Date Filed: 08/21/2019\\n\\n\\n\\n No. 17-20808\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3688,"cells":{"id":{"kind":"number","value":4655284,"string":"4,655,284"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. $4,480,466.16 in Funds Seized"},"decision_date":{"kind":"string","value":"2019-08-22"},"docket_number":{"kind":"string","value":"18-10801"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before ELROD, WILLETT, and DUNCAN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"STUART KYLE DUNCAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-10801 Document: 00515087912 Page: 1 Date Filed: 08/22/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n No. 18-10801 FILED\\n August 22, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\n$4,480,466.16 in funds seized from Bank of America account ending in 2653\\n\\n Defendant,\\n\\nRETAIL READY CAREER CENTER INCORPORATED,\\n\\n Claimant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore ELROD, WILLETT, and DUNCAN, Circuit Judges.\\nSTUART KYLE DUNCAN, Circuit Judge:\\n In this civil forfeiture proceeding, the United States seized millions of\\ndollars from a Texas vocational school, alleging the funds were the fruits of a\\nscheme to fleece veterans. The school intervened as a claimant, denied the\\ngovernment’s allegations, and counterclaimed for constitutional tort damages\\nagainst the government for ruining its business. The district court dismissed\\nthe school’s counterclaims as a matter of law. Finding no authority from our\\ncourt on the issue, the district court adopted the First Circuit’s view that\\n\\f Case: 18-10801 Document: 00515087912 Page: 2 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\nclaimants in an in rem forfeiture proceeding may never bring counterclaims.\\nSee United States v. One Lot of U.S. Currency ($68,000), 927 F.2d 30, 34 (1st\\nCir. 1991) (“$68,000”). On appeal, the school protests that this categorical rule\\nbarring all counterclaims in civil forfeiture proceedings is incorrect. We decline\\nto address that question, however, because the school’s specific counterclaims\\nare barred for a more fundamental reason—sovereign immunity—and so the\\ndistrict court lacked subject matter jurisdiction over them. We therefore vacate\\nthe district court’s judgment and remand with instructions to dismiss the\\nschool’s counterclaims for lack of subject matter jurisdiction.\\n I.\\n Appellant Retail Ready Career Center (“RRCC”) was a private school in\\nTexas offering a six-week “boot camp style” course to train students as Heating,\\nVentilation, and Air Conditioning (“HVAC”) technicians. 1 According to RRCC,\\n“[m]ost” students were “veterans who pa[id] for the course using their earned\\nGI Bill benefit,” but “courses were open to other participants” as well. In 2017,\\nthe United States Department of Veterans Affairs (“VA”) began investigating\\nwhether RRCC had falsely claimed to be in compliance with the “85-15” rule.\\nThis rule prohibits the VA from approving a veteran’s enrollment in a course\\n“for any period during which more than 85 percent of the students enrolled in\\nthe course are having all or part of their tuition, fees or other charges paid for\\nthem by the educational institution or by VA[.]” 38 C.F.R. § 21.4201. The rule’s\\npurpose is to “minimize the risk that veterans’ benefits will be wasted on\\neducational programs of little value . . . and to prevent charlatans from\\ngrabbing the veterans’ education money.” Cleland v. Nat’l Coll. of Bus., 435\\nU.S. 213, 219 (1978) (cleaned up).\\n\\n\\n 1 We draw these facts primarily from RRCC’s verified claim, which we accept as true\\nfor purposes of reviewing the district court’s grant of a motion to dismiss. See Masel v.\\nVillareal, 924 F.3d 734, 743 (5th Cir. 2019).\\n 2\\n\\f Case: 18-10801 Document: 00515087912 Page: 3 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\n In September 2017, federal warrants were issued to seize the money in\\nRRCC’s bank accounts—over $4.6 million—as the alleged proceeds of federal\\nlaw violations. See FED. R. CIV. P., SUPPLEMENTAL RULE (“SUPP. RULE”) G(3)(b)\\n(explaining “the court—on finding probable cause—must issue a warrant” to\\nseize movable property not in government control). 2 In October 2017, the\\ngovernment filed a complaint in rem seeking forfeiture of the funds under\\nvarious fraud and conspiracy statutes. 3 After receiving notice of that action,\\nRRCC filed a verified claim to the seized property. See 18 U.S.C. § 983(a)(4)(A)\\n(providing “[a]ny person claiming an interest in the seized property may file a\\nclaim asserting such person’s interest in the property”); SUPP. RULE G(5)(a)\\n(setting out claim requirements). In its verified claim, RRCC alleged that the\\nseizure occurred without prior notice or hearing; caused “an immediate and\\ndevastating effect on RRCC’s business”; and forced RRCC to “close the school,”\\ndismiss employees without pay, and fly students home lest they be “stranded\\nin Texas.” RRCC also included two “constitutional counterclaims,” which\\nalleged the seizure violated the Fourth and Fifth Amendments and sought\\n“damages to compensate [RRCC] for the destruction of its business.”\\n The government moved to dismiss RRCC’s counterclaims under Federal\\nRule of Civil Procedure 12(b)(6). Relying principally on the First Circuit’s\\ndecision in $68,000, 927 F.2d 30, the government argued that “claimants in\\n\\n\\n 2The government also seized other property not relevant to this appeal, including over\\n$100,000 from five other bank accounts; real property located in Dallas, Texas; and seven\\nluxury vehicles.\\n 3 See, e.g., 18 U.S.C. § 981(a)(1)(C) (providing “[a]ny property, real or personal, which\\nconstitutes or is derived from proceeds traceable to a violation of [certain federal laws]” is\\n“subject to forfeiture to the United States”); id. § 981(a)(1)(D) (providing “[a]ny property, real\\nor personal, which represents or is traceable to the gross receipts obtained, directly or\\nindirectly, from a violation of [federal fraud statutes]” is “subject to forfeiture to the United\\nStates”); id. § 982(a)(3) (providing a court shall order that a person convicted of a federal\\nfraud offense forfeit to the United States any property “which represents or is traceable to\\nthe gross receipts obtained, directly or indirectly, as a result of such violation”).\\n 3\\n\\f Case: 18-10801 Document: 00515087912 Page: 4 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\ncivil-forfeiture cases may not file counterclaims against the United States, as\\nthey are merely claimants, not the party against which the suit is directed.”\\nThe district court noted the parties had not cited “any binding Fifth Circuit\\nauthority” on this question, but found “persuasive” the First Circuit’s\\nreasoning in $68,000, 4 which had been followed by several district courts from\\nother circuits. 5 The court therefore granted the government’s motion to dismiss\\nRRCC’s counterclaims, “hold[ing] that, as a claimant in an in rem civil\\nforfeiture action, RRCC cannot bring a counterclaim.”\\n Meanwhile, the government struggled to state an adequate claim against\\nRRCC’s funds under the forfeiture rules. The district court dismissed the\\ngovernment’s first amended complaint, finding its allegations insufficiently\\nspecific. The second amended complaint met the same fate. See United States\\nv. $4,480,466.16 In Funds Seized, No. 3:17–CV–2989–D, 2018 WL 4096340, at\\n*3 (N.D. Tex. Aug. 28, 2018) (ruling allegations in second amended complaint\\n\\n\\n\\n 4 The entirety of the First Circuit’s reasoning on this point consists of this citation-\\nfree half-paragraph:\\n By definition, a counterclaim is a turn-the-tables response directed by one party\\n (“A”) at another party (“B”) in circumstances where “B” has earlier lodged a claim\\n in the same proceeding against “A.” A forfeiture action is in rem, not in\\n personam. The property is the defendant. Since no civil claim was filed by the\\n government against [the claimant]—indeed, rather than being dragooned into\\n the case as a defendant, he intervened as a claimant—there was no “claim” to\\n “counter.” Thus, [the claimant’s] self-styled counterclaim was a nullity, and the\\n court below appropriately ignored it.\\n$68,000, 927 F.2d at 34.\\n 5 See United States v. 8 Luxury Vehicles, 88 F. Supp. 3d 1332, 1337 (M.D. Fla. 2015);\\nUnited States v. Funds from Fifth Third Bank Account # 0065006695, No. 13-11728, 2013\\nWL 5914101, at *12 (E.D. Mich. Nov. 4, 2013); United States v. $22,832.00 in U.S. Currency,\\nNo. 1:12 CV 01987, 2013 WL 4012712, at *4 (N.D. Ohio Aug. 6, 2013); United States v.\\n$43,725.00 in U.S. Currency, No. 4:08–1373–TLW, 2009 WL 347475 at *1 (D.S.C. Feb. 3,\\n2009); United States v. 1866.75 Bd. Feet, No. 1:07cv1100 (GBL), 2008 WL 839792, at *3 (E.D.\\nVa. Mar. 25, 2008); United States v. Assorted Comput. Equip., No. 03–2356V, 2004 WL\\n784493, at *2 (W.D. Tenn. Jan. 9, 2004). The Sixth Circuit has recently adopted the First\\nCircuit’s rationale in $68,000. See Zappone v. United States, 870 F.3d 551, 561 (6th Cir. 2017).\\n 4\\n\\f Case: 18-10801 Document: 00515087912 Page: 5 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\nwere “insufficient to comply with Supp[lemental] R[ule] G(2)’s requirement\\nthat the complaint must ‘state sufficiently detailed facts to support a\\nreasonable belief that the government will be able to meet its burden of proof\\nat trial’”); SUPP. RULE G(2)(f). The parties continue to litigate that issue below. 6\\n The issues before us on appeal concern only the fate of RRCC’s\\ncounterclaims. On June 12, 2018, the district court entered a final judgment\\ndismissing RRCC’s counterclaims under Federal Rule of Civil Procedure 54(b),\\nwhich RRCC timely appealed. We have jurisdiction to review that Rule 54(b)\\njudgment. See New Amsterdam Cas. Co. v. United States, 272 F.2d 754, 756\\n(5th Cir. 1959) (dismissal of counterclaim, when plaintiff’s claim is still\\npending, is non-appealable “absent a certificate under Rule 54(b)”).\\n II.\\n We review the district court’s judgment dismissing RRCC’s\\ncounterclaims de novo, “accepting all well-pleaded facts [in RRCC’s\\ncounterclaims] as true and viewing those facts in the light most favorable to\\n[RRCC].” SGK Props., LLC v. U.S. Bank Nat’l Ass’n, 881 F.3d 933, 943 (5th\\nCir. 2018) (quoting Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007)). We may\\naffirm the district court’s judgment “on any basis supported by the record.”\\nTotal Gas & Power N. Am., Inc. v. FERC, 859 F.3d 325, 332 (5th Cir. 2017)\\n(citing Taylor v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015); EEOC v.\\nSimbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014)); see also Lee v. Kemna, 534\\nU.S. 362, 391 (2002) (“[I]t is well settled that an appellate tribunal may affirm\\na trial court’s judgment on any ground supported by the record.”).\\n\\n\\n 6 Following RRCC’s appeal in this case, the government filed its third amended\\ncomplaint, in response to which RRCC moved for dismissal and summary judgment. The\\ndistrict court has not ruled on those motions. Instead, the district court granted the\\ngovernment’s motion to stay the forfeiture action for 120 days during the pendency of a\\nrelated, ongoing criminal investigation. The stay expired June 6, 2019, at which point the\\ngovernment moved to extend the stay for an additional 120 days. That motion is pending\\nbefore the district court.\\n 5\\n\\f Case: 18-10801 Document: 00515087912 Page: 6 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\n III.\\n On appeal, RRCC asks us to disclaim the district court’s broad ruling\\nthat claimants in in rem civil forfeiture proceedings are barred, always and\\neverywhere, from filing counterclaims. We decline to address that question,\\nhowever, because RRCC’s counterclaims are barred for a more fundamental\\nreason: sovereign immunity. 7 As the government points out, the United States\\nhas not waived its sovereign immunity with respect to the particular claims\\nasserted in RRCC’s counterclaims—damages claims for violations of the\\nFourth and Fifth Amendments—and the district court therefore lacked subject\\nmatter jurisdiction over them. We agree.\\n “It is axiomatic that the United States may not be sued without its\\nconsent and that the existence of consent is a prerequisite for jurisdiction.”\\nUnited States v. Mitchell, 463 U.S. 206, 212 (1983) (citing United States v.\\nSherwood, 312 U.S. 584, 586 (1941); 14 WRIGHT, MILLER & COOPER, FED. PRAC.\\n& PROC. § 3654); see also, e.g., In re Supreme Beef Processors, Inc., 468 F.3d\\n248, 251–52 (5th Cir. 2006) (en banc) (“The Constitution contemplates that,\\nexcept as authorized by Congress, the federal government and its agencies are\\nimmune from suit.” (citing Hercules, Inc. v. United States, 516 U.S. 417, 422\\n(1996))). A waiver of sovereign immunity “cannot be implied but must be\\nunequivocally expressed,” and any waiver “will be strictly construed, in terms\\nof its scope, in favor of the sovereign.” Doe v. United States, 853 F.3d 792, 796\\n(5th Cir. 2017) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980);\\nLane v. Peña, 518 U.S. 187, 192 (1996)) (internal quotation marks omitted).\\nThe government argues that RRCC has identified no statute unequivocally\\n\\n\\n\\n 7 Because we rule on the basis of sovereign immunity, nothing in our opinion should\\nbe read as approving the First Circuit’s rationale in $68,000 that counterclaims in in rem\\nforfeiture proceedings are categorically barred. As the district court pointed out, no decision\\nof ours has adopted that broad view and we have no occasion to address whether it is correct.\\n 6\\n\\f Case: 18-10801 Document: 00515087912 Page: 7 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\nwaiving the United States’ immunity for the damages claims in RRCC’s\\ncounterclaims. Specifically, RRCC seeks damages arising from the\\n“unreasonable seizure” of its bank accounts in violation of the Fourth\\nAmendment and from the lack of “notice and hearing” in violation of the Fifth\\nAmendment’s Due Process Clause. The government is correct.\\n In its reply brief, RRCC attempts to identify the required waiver in 28\\nU.S.C. § 2680(c). In that provision, Congress “re-waived” the United States’\\nsovereign immunity under the Federal Tort Claims Act (“FTCA”) for certain\\nproperty damages claims arising out of forfeitures. 8 See, e.g., Smoke Shop, LLC\\nv. United States, 761 F.3d 779, 782 (7th Cir. 2014) (explaining that in the 2000\\nCivil Asset Forfeiture Reform Act or “CAFRA” Congress “‘rewaived’ the\\ngovernment’s immunity” under the FTCA “for tort actions stemming from law-\\nenforcement detentions of property” under specific circumstances); Foster v.\\n\\n\\n 8 Section 2680(c) provides, in relevant part, that the FTCA immunity waiver applies\\n“to any claim based on the injury or loss of goods, merchandise, or other property, while in\\nthe possession of any officer of customs or excise or any other law enforcement officer, if—\\n (1) the property was seized for the purpose of forfeiture under any provision of\\n Federal law providing for the forfeiture of property other than as a sentence\\n imposed upon conviction of a criminal offense;\\n (2) the interest of the claimant was not forfeited;\\n (3) the interest of the claimant was not remitted or mitigated (if the property\\n was subject to forfeiture); and\\n (4) the claimant was not convicted of a crime for which the interest of the\\n claimant in the property was subject to forfeiture under a Federal criminal\\n forfeiture law.”\\n28 U.S.C. § 2680(c)(1)–(4). The subsection cross-references 28 U.S.C. § 1346(b), which in\\nrelevant part provides that federal district courts have exclusive jurisdiction over post-\\nJanuary 1, 1945 money damages claims against the United States for\\n injury or loss of property, or personal injury or death caused by the negligent or\\n wrongful act or omission of any employee of the Government while acting within\\n the scope of his office or employment, under circumstances where the United\\n States, if a private person, would be liable to the claimant in accordance with\\n the law of the place where the act or omission occurred.\\nId. § 1346(b)(1).\\n 7\\n\\f Case: 18-10801 Document: 00515087912 Page: 8 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\nUnited States, 522 F.3d 1071, 1075 (9th Cir. 2008) (explaining “CAFRA . . .\\nrestored the waiver of sovereign immunity—or ‘re-waived’ sovereign\\nimmunity—with respect to certain forfeiture-related seizures”). RRCC\\noverlooks, however, that the FTCA waiver does not extend to “constitutional\\ntorts” like the Fourth and Fifth Amendment damages claims pled in RRCC’s\\ncounterclaims. We have squarely recognized that “[c]onstitutional torts . . . do\\nnot provide a proper predicate for an FTCA claim.” Spotts v. United States, 613\\nF.3d 559, 565 n.3 (5th Cir. 2010) (citing FDIC v. Meyer, 510 U.S. 471, 478\\n(1994)); see also, e.g., Coleman v. United States, 912 F.3d 824, 835 (5th Cir.\\n2019) (the “source of substantive liability under the FTCA” must be the “law of\\nthe State” and not federal law (citing Meyer, 510 U.S. at 478)); Sanchez v. Rowe,\\n870 F.2d 291, 295 (5th Cir. 1989) (explaining “the FTCA does not provide a\\ncause of action for constitutional torts” because “by definition constitutional\\ntorts are not based on state law” (cleaned up)). Thus, the FTCA waiver does\\nnot encompass the constitutional damages claims in RRCC’s counterclaims,\\nand the district court thus lacked jurisdiction over them. 9\\n\\n\\n\\n\\n 9 We do not decide whether RRCC could bring valid FTCA claims as counterclaims in\\na civil forfeiture proceeding. See, e.g., Life Partners Inc. v. United States, 650 F.3d 1026, 1029–\\n30 (5th Cir. 2011) (discussing administrative exhaustion requirements which are “a\\nprerequisite to suit under the FTCA”) (citing 28 U.S.C. § 2675(a); McAfee v. 5th Circuit\\nJudges, 884 F.2d 221, 222–23 (5th Cir. 1989)). We decide only that the specific claims\\nasserted in RRCC’s counterclaims fall outside the CAFRA re-waiver and are therefore barred\\nby sovereign immunity. Additionally, we note that neither the Tucker Act nor its companion,\\nthe Little Tucker Act, waive sovereign immunity over RRCC’s claims. The Tucker Act\\nprovides a judicial avenue for “any claim against the United States founded . . . upon the\\nConstitution.” 28 U.S.C. § 1491(a)(1); see also United States v. Bormes, 568 U.S. 6, 11 (2012)\\n(discussing Tucker Act). The waiver in the Tucker Act, however, “has been limited to apply\\nonly to the Takings Clause . . . because only that clause contemplates payment by the federal\\ngovernment.” Rothe Dev. Corp. v. U.S. Dep’t of Defense, 194 F.3d 622, 625 (5th Cir. 1999).\\nHere, RRCC does not invoke the Tucker Act, and its Fifth Amendment claims are premised\\non an alleged due process violation, not the Takings Clause. See, e.g., Bellamy v. United\\nStates, 7 Cl. Ct. 720, 723 (1985) (explaining claims court “has no jurisdiction over claims\\nbased upon the Due Process and Equal Protection guarantees of the Fifth Amendment,\\n 8\\n\\f Case: 18-10801 Document: 00515087912 Page: 9 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\n RRCC also argues that the United States waives sovereign immunity\\nsimply by “initiat[ing] an in rem proceeding.” RRCC cites no authority\\nsupporting that grandiose proposition. It points only to admiralty cases\\nallowing a limited cross-libel against the United States when the United States\\nsues another vessel for collision damages. See United States v. The Thekla, 266\\nU.S. 328 (1924); United States v. The Paquete Habana, 189 U.S. 453 (1903);\\nThe Siren, 74 U.S. 152 (1868); see also, e.g., United States v. Shaw, 309 U.S.\\n495, 502–03 (1940) (explaining that, in such cases, “it is necessary to determine\\nthe cross-libel as well as the original libel to reach a conclusion as to liability\\nfor the collision”). 10 But RRCC directs us to no authority for the proposition\\nthat this distinct admiralty rule waives the United States’ sovereign immunity\\nwhenever it institutes a civil forfeiture proceeding. Nor does RRCC direct us to\\nany unambiguous statutory waiver of the United States’ immunity under such\\ncircumstances. 11 As we have already explained, Congress did enact an\\nunambiguous immunity waiver with respect to forfeiture proceedings, see 28\\nU.S.C. § 2680(c)(1)–(4), but it has no application here.\\n Finally, RRCC claims we cannot reach sovereign immunity for two\\nreasons. First, RRCC points out the government did not raise the issue below.\\nThat is irrelevant: Whether the United States’ sovereign immunity has been\\n\\n\\n\\n\\nbecause these constitutional provisions do not obligate the Federal Government to pay money\\ndamages” (quoting Carruth v. United States, 224 Ct. Cl. 422, 445 (1980) (cleaned up)).\\n 10 See generally 2 AM. JUR. 2d ADMIRALTY § 44 (“Whenever the United States sues for\\ndamage inflicted on its vessel or cargo, it impliedly waives its exemption from admiralty\\njurisdiction as to cross libels or counterclaims arising from the same transaction.” (citing The\\nThekla, 266 U.S. 328; The Western Maid, 257 U.S. 419 (1922))).\\n 11 RRCC incorrectly points to the immunity waiver in 46 U.S.C. § 30903(a), but that\\nstatute also pertains only to certain admiralty claims involving the United States. See, e.g.,\\nMS Tabea Schiffahrtsgesellschaft MBH & Co. KG v. United States, 636 F.3d 161, 165 n.1 (5th\\nCir. 2011) (explaining that “[t]he Suits in Admiralty Act (SAA) . . . provides the appropriate\\nwaiver for maritime tort claims against the United States” (citing 46 U.S.C. § 30903)).\\n 9\\n\\f Case: 18-10801 Document: 00515087912 Page: 10 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\nwaived is a question of subject matter jurisdiction we can address for the first\\ntime on appeal. See, e.g., Lewis v. Hunt, 492 F.3d 565, 568 (5th Cir. 2007)\\n(holding that an appellate court may consider United States’ sovereign\\nimmunity sua sponte, “[a]lthough the parties and the district court did not\\nraise [it]”); Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006) (explaining\\nthat lack of waiver of United States’ sovereign immunity under FTCA\\n“deprives federal courts of subject matter jurisdiction”). Second, RRCC claims\\nthat addressing sovereign immunity would convert a without-prejudice\\ndismissal below into a with-prejudice dismissal on appeal, which would be\\ninappropriate without a cross-appeal. See, e.g., Jennings v. Stephens, 135 S.\\nCt. 793, 798 (2015) (explaining “an appellee who does not cross-appeal may not\\n‘attack the [district court’s] decree with a view either to enlarging his own\\nrights thereunder or of lessening the rights of his adversary’” (quoting United\\nStates v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924))). RRCC is again\\nmistaken. Claims barred by sovereign immunity are dismissed without\\nprejudice, not with prejudice. See, e.g., Warnock v. Pecos Cty., Tex., 88 F.3d 341,\\n343 (5th Cir. 1996) (explaining that “[b]ecause sovereign immunity deprives\\nthe court of jurisdiction, the claims barred by sovereign immunity can be\\ndismissed only under Rule 12(b)(1) and not with prejudice”); see also, e.g.,\\nUnited States v. Tex. Tech Univ., 171 F.3d 279, 285 n.9 (5th Cir. 1999) (same,\\nciting Warnock); 9 WRIGHT & MILLER, FED. PRAC. & PROC. § 2373 (because\\ndismissal for lack of jurisdiction does not reach merits, claim “must be\\nconsidered to have been dismissed without prejudice”). Thus, we may, and do,\\nrule that RRCC’s counterclaims are barred by sovereign immunity. 12\\n\\n\\n 12 Because we resolve the appeal on sovereign immunity grounds, we do not address\\nthe government’s argument that RRCC’s damages counterclaims are barred by 28 U.S.C.\\n§ 2465(b)(2)(A). Part of a provision addressing government liability for costs, fees, and\\ninterest when a claimant prevails in a forfeiture proceeding, § 2465(b)(2)(A) provides that\\n“[t]he United States shall not be required to disgorge the value of any intangible benefits nor\\n 10\\n\\f Case: 18-10801 Document: 00515087912 Page: 11 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\n IV.\\n Congress has provided various remedies for claimants like RRCC who\\nassert that the United States has wrongfully seized their property in forfeiture\\nproceedings. See, e.g., United States v. Khan, 497 F.3d 204, 208 (2nd Cir. 2007)\\n(by reforming the forfeiture laws in CAFRA, “Congress was reacting to public\\noutcry over the government’s too-zealous pursuit of civil and criminal\\nforfeitures”). Under certain circumstances, claimants who “substantially\\nprevail[ ]” in a forfeiture action may recover attorneys’ fees, costs, and interest.\\nSee 28 U.S.C. § 2465(b)(1)(A)–(C). In some cases, they may sue the United\\nStates for property damages under the FTCA. See 28 U.S.C. § 2680(c)(1)–(4).\\nWhat claimants may not do, however, is sue the United States for\\nconstitutional torts arising out of the property seizure. Congress has not\\nwaived the United States’ sovereign immunity for damages claims of that\\nnature. Because RRCC’s counterclaims sought precisely those kinds of\\ndamages, we hold its counterclaims are barred by sovereign immunity.\\n We VACATE the district court’s judgment and REMAND with\\ninstructions to dismiss RRCC’s counterclaims for lack of subject matter\\njurisdiction.\\n\\n\\n\\n\\nmake any other payments to the claimant not specifically authorized by this subsection.” 28\\nU.S.C. § 2465(b)(2)(A).\\n\\n\\n 11\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4432537/\", \"author_raw\": \"STUART KYLE DUNCAN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"ELROD"},"judge2":{"kind":"string","value":"WILLETT"},"judge3":{"kind":"string","value":"DUNCAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"ELROD\": \", Circuit\", \"WILLETT\": \", Circuit\", \"DUNCAN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4655284/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. $4,480,466.16 in Funds Seized\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10801 Document: 00515087912 Page: 1 Date Filed: 08/22/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n No. 18-10801 FILED\n August 22, 2019\n\nUNITED STATES OF AMERICA, Lyle W. Cayce\n Clerk\n Plaintiff - Appellee\n\nv.\n\n$4,480,466.16 in funds seized from Bank of America account ending in 2653\n\n Defendant,\n\nRETAIL READY CAREER CENTER INCORPORATED,\n\n Claimant - Appellant\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore ELROD, WILLETT, and DUNCAN, Circuit Judges.\nSTUART KYLE DUNCAN, Circuit Judge:\n In this civil forfeiture proceeding, the United States seized millions of\ndollars from a Texas vocational school, alleging the funds were the fruits of a\nscheme to fleece veterans. The school intervened as a claimant, denied the\ngovernment’s allegations, and counterclaimed for constitutional tort damages\nagainst the government for ruining its business. The district court dismissed\nthe school’s counterclaims as a matter of law. Finding no authority from our\ncourt on the issue, the district court adopted the First Circuit’s view that\n\f Case: 18-10801 Document: 00515087912 Page: 2 Date Filed: 08/22/2019\n\n\n\n No. 18-10801\nclaimants in an in rem forfeiture proceeding may never bring counterclaims.\nSee United States v. One Lot of U.S. Currency ($68,000), 927 F.2d 30, 34 (1st\nCir. 1991) (“$68,000”). On appeal, the school protests that this categorical rule\nbarring all counterclaims in civil forfeiture proceedings is incorrect. We decline\nto address that question, however, because the school’s specific counterclaims\nare barred for a more fundamental reason—sovereign immunity—and so the\ndistrict court lacked subject matter jurisdiction over them. We therefore vacate\nthe district court’s judgment and remand with instructions to dismiss the\nschool’s counterclaims for lack of subject matter jurisdiction.\n I.\n Appellant Retail Ready Career Center (“RRCC”) was a private school in\nTexas offering a six-week “boot camp style” course to train students as Heating,\nVentilation, and Air Conditioning (“HVAC”) technicians. 1 According to RRCC,\n“[m]ost” students were “veterans who pa[id] for the course using their earned\nGI Bill benefit,” but “courses were open to other participants” as well. In 2017,\nthe United States Department of Veterans Affairs (“VA”) began investigating\nwhether RRCC had falsely claimed to be in compliance with the “85-15” rule.\nThis rule prohibits the VA from approving a veteran’s enrollment in a course\n“for any period during which more than 85 percent of the students enrolled in\nthe course are having all or part of their tuition, fees or other charges paid for\nthem by the educational institution or by VA[.]” 38 C.F.R. § 21.4201. The rule’s\npurpose is to “minimize the risk that veterans’ benefits will be wasted on\neducational programs of little value . . . and to prevent charlatans from\ngrabbing the veterans’ education money.” Cleland v. Nat’l Coll. of Bus., 435\nU.S. 213, 219 (1978) (cleaned up).\n\n\n 1 We draw these facts primarily from RRCC’s verified claim, which we accept as true\nfor purposes of reviewing the district court’s grant of a motion to dismiss. See Masel v.\nVillareal, 924 F.3d 734, 743 (5th Cir. 2019).\n 2\n\f Case: 18-10801 Document: 00515087912 Page: 3 Date Filed: 08/22/2019\n\n\n\n No. 18-10801\n In September 2017, federal warrants were issued to seize the money in\nRRCC’s bank accounts—over $4.6 million—as the alleged proceeds of federal\nlaw violations. See FED. R. CIV. P., SUPPLEMENTAL RULE (“SUPP. RULE”) G(3)(b)\n(explaining “the court—on finding probable cause—must issue a warrant” to\nseize movable property not in government control). 2 In October 2017, the\ngovernment filed a complaint in rem seeking forfeiture of the funds under\nvarious fraud and conspiracy statutes. 3 After receiving notice of that action,\nRRCC filed a verified claim to the seized property. See 18 U.S.C. § 983(a)(4)(A)\n(providing “[a]ny person claiming an interest in the seized property may file a\nclaim asserting such person’s interest in the property”); SUPP. RULE G(5)(a)\n(setting out claim requirements). In its verified claim, RRCC alleged that the\nseizure occurred without prior notice or hearing; caused “an immediate and\ndevastating effect on RRCC’s business”; and forced RRCC to “close the school,”\ndismiss employees without pay, and fly students home lest they be “stranded\nin Texas.” RRCC also included two “constitutional counterclaims,” which\nalleged the seizure violated the Fourth and Fifth Amendments and sought\n“damages to compensate [RRCC] for the destruction of its business.”\n The government moved to dismiss RRCC’s counterclaims under Federal\nRule of Civil Procedure 12(b)(6). Relying principally on the First Circuit’s\ndecision in $68,000, 927 F.2d 30, the government argued that “claimants in\n\n\n 2The government also seized other property not relevant to this appeal, including over\n$100,000 from five other bank accounts; real property located in Dallas, Texas; and seven\nluxury vehicles.\n 3 See, e.g., 18 U.S.C. § 981(a)(1)(C) (providing “[a]ny property, real or personal, which\nconstitutes or is derived from proceeds traceable to a violation of [certain federal laws]” is\n“subject to forfeiture to the United States”); id. § 981(a)(1)(D) (providing “[a]ny property, real\nor personal, which represents or is traceable to the gross receipts obtained, directly or\nindirectly, from a violation of [federal fraud statutes]” is “subject to forfeiture to the United\nStates”); id. § 982(a)(3) (providing a court shall order that a person convicted of a federal\nfraud offense forfeit to the United States any property “which represents or is traceable to\nthe gross receipts obtained, directly or indirectly, as a result of such violation”).\n 3\n\f Case: 18-10801 Document: 00515087912 Page: 4 Date Filed: 08/22/2019\n\n\n\n No. 18-10801\ncivil-forfeiture cases may not file counterclaims against the United States, as\nthey are merely claimants, not the party against which the suit is directed.”\nThe district court noted the parties had not cited “any binding Fifth Circuit\nauthority” on this question, but found “persuasive” the First Circuit’s\nreasoning in $68,000, 4 which had been followed by several district courts from\nother circuits. 5 The court therefore granted the government’s motion to dismiss\nRRCC’s counterclaims, “hold[ing] that, as a claimant in an in rem civil\nforfeiture action, RRCC cannot bring a counterclaim.”\n Meanwhile, the government struggled to state an adequate claim against\nRRCC’s funds under the forfeiture rules. The district court dismissed the\ngovernment’s first amended complaint, finding its allegations insufficiently\nspecific. The second amended complaint met the same fate. See United States\nv. $4,480,466.16 In Funds Seized, No. 3:17–CV–2989–D, 2018 WL 4096340, at\n*3 (N.D. Tex. Aug. 28, 2018) (ruling allegations in second amended complaint\n\n\n\n 4 The entirety of the First Circuit’s reasoning on this point consists of this citation-\nfree half-paragraph:\n By definition, a counterclaim is a turn-the-tables response directed by one party\n (“A”) at another party (“B”) in circumstances where “B” has earlier lodged a claim\n in the same proceeding against “A.” A forfeiture action is in rem, not in\n personam. The property is the defendant. Since no civil claim was filed by the\n government against [the claimant]—indeed, rather than being dragooned into\n the case as a defendant, he intervened as a claimant—there was no “claim” to\n “counter.” Thus, [the claimant’s] self-styled counterclaim was a nullity, and the\n court below appropriately ignored it.\n$68,000, 927 F.2d at 34.\n 5 See United States v. 8 Luxury Vehicles, 88 F. Supp. 3d 1332, 1337 (M.D. Fla. 2015);\nUnited States v. Funds from Fifth Third Bank Account # 0065006695, No. 13-11728, 2013\nWL 5914101, at *12 (E.D. Mich. Nov. 4, 2013); United States v. $22,832.00 in U.S. Currency,\nNo. 1:12 CV 01987, 2013 WL 4012712, at *4 (N.D. Ohio Aug. 6, 2013); United States v.\n$43,725.00 in U.S. Currency, No. 4:08–1373–TLW, 2009 WL 347475 at *1 (D.S.C. Feb. 3,\n2009); United States v. 1866.75 Bd. Feet, No. 1:07cv1100 (GBL), 2008 WL 839792, at *3 (E.D.\nVa. Mar. 25, 2008); United States v. Assorted Comput. Equip., No. 03–2356V, 2004 WL\n784493, at *2 (W.D. Tenn. Jan. 9, 2004). The Sixth Circuit has recently adopted the First\nCircuit’s rationale in $68,000. See Zappone v. United States, 870 F.3d 551, 561 (6th Cir. 2017).\n 4\n\f Case: 18-10801 Document: 00515087912 Page: 5 Date Filed: 08/22/2019\n\n\n\n No. 18-10801\nwere “insufficient to comply with Supp[lemental] R[ule] G(2)’s requirement\nthat the complaint must ‘state sufficiently detailed facts to support a\nreasonable belief that the government will be able to meet its burden of proof\nat trial’”); SUPP. RULE G(2)(f). The parties continue to litigate that issue below. 6\n The issues before us on appeal concern only the fate of RRCC’s\ncounterclaims. On June 12, 2018, the district court entered a final judgment\ndismissing RRCC’s counterclaims under Federal Rule of Civil Procedure 54(b),\nwhich RRCC timely appealed. We have jurisdiction to review that Rule 54(b)\njudgment. See New Amsterdam Cas. Co. v. United States, 272 F.2d 754, 756\n(5th Cir. 1959) (dismissal of counterclaim, when plaintiff’s claim is still\npending, is non-appealable “absent a certificate under Rule 54(b)”).\n II.\n We review the district court’s judgment dismissing RRCC’s\ncounterclaims de novo, “accepting all well-pleaded facts [in RRCC’s\ncounterclaims] as true and viewing those facts in the light most favorable to\n[RRCC].” SGK Props., LLC v. U.S. Bank Nat’l Ass’n, 881 F.3d 933, 943 (5th\nCir. 2018) (quoting Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007)). We may\naffirm the district court’s judgment “on any basis supported by the record.”\nTotal Gas & Power N. Am., Inc. v. FERC, 859 F.3d 325, 332 (5th Cir. 2017)\n(citing Taylor v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015); EEOC v.\nSimbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014)); see also Lee v. Kemna, 534\nU.S. 362, 391 (2002) (“[I]t is well settled that an appellate tribunal may affirm\na trial court’s judgment on any ground supported by the record.”).\n\n\n 6 Following RRCC’s appeal in this case, the government filed its third amended\ncomplaint, in response to which RRCC moved for dismissal and summary judgment. The\ndistrict court has not ruled on those motions. Instead, the district court granted the\ngovernment’s motion to stay the forfeiture action for 120 days during the pendency of a\nrelated, ongoing criminal investigation. The stay expired June 6, 2019, at which point the\ngovernment moved to extend the stay for an additional 120 days. That motion is pending\nbefore the district court.\n 5\n\f Case: 18-10801 Document: 00515087912 Page: 6 Date Filed: 08/22/2019\n\n\n\n No. 18-10801\n III.\n On appeal, RRCC asks us to disclaim the district court’s broad ruling\nthat claimants in in rem civil forfeiture proceedings are barred, always and\neverywhere, from filing counterclaims. We decline to address that question,\nhowever, because RRCC’s counterclaims are barred for a more fundamental\nreason: sovereign immunity. 7 As the government points out, the United States\nhas not waived its sovereign immunity with respect to the particular claims\nasserted in RRCC’s counterclaims—damages claims for violations of the\nFourth and Fifth Amendments—and the district court therefore lacked subject\nmatter jurisdiction over them. We agree.\n “It is axiomatic that the United States may not be sued without its\nconsent and that the existence of consent is a prerequisite for jurisdiction.”\nUnited States v. Mitchell, 463 U.S. 206, 212 (1983) (citing United States v.\nSherwood, 312 U.S. 584, 586 (1941); 14 WRIGHT, MILLER & COOPER, FED. PRAC.\n& PROC. § 3654); see also, e.g., In re Supreme Beef Processors, Inc., 468 F.3d\n248, 251–52 (5th Cir. 2006) (en banc) (“The Constitution contemplates that,\nexcept as authorized by Congress, the federal government and its agencies are\nimmune from suit.” (citing Hercules, Inc. v. United States, 516 U.S. 417, 422\n(1996))). A waiver of sovereign immunity “cannot be implied but must be\nunequivocally expressed,” and any waiver “will be strictly construed, in terms\nof its scope, in favor of the sovereign.” Doe v. United States, 853 F.3d 792, 796\n(5th Cir. 2017) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980);\nLane v. Peña, 518 U.S. 187, 192 (1996)) (internal quotation marks omitted).\nThe government argues that RRCC has identified no statute unequivocally\n\n\n\n 7 Because we rule on the basis of sovereign immunity, nothing in our opinion should\nbe read as approving the First Circuit’s rationale in $68,000 that counterclaims in in rem\nforfeiture proceedings are categorically barred. As the district court pointed out, no decision\nof ours has adopted that broad view and we have no occasion to address whether it is correct.\n 6\n\f Case: 18-10801 Document: 00515087912 Page: 7 Date Filed: 08/22/2019\n\n\n\n No. 18-10801\nwaiving the United States’ immunity for the damages claims in RRCC’s\ncounterclaims. Specifically, RRCC seeks damages arising from the\n“unreasonable seizure” of its bank accounts in violation of the Fourth\nAmendment and from the lack of “notice and hearing” in violation of the Fifth\nAmendment’s Due Process Clause. The government is correct.\n In its reply brief, RRCC attempts to identify the required waiver in 28\nU.S.C. § 2680(c). In that provision, Congress “re-waived” the United States’\nsovereign immunity under the Federal Tort Claims Act (“FTCA”) for certain\nproperty damages claims arising out of forfeitures. 8 See, e.g., Smoke Shop, LLC\nv. United States, 761 F.3d 779, 782 (7th Cir. 2014) (explaining that in the 2000\nCivil Asset Forfeiture Reform Act or “CAFRA” Congress “‘rewaived’ the\ngovernment’s immunity” under the FTCA “for tort actions stemming from law-\nenforcement detentions of property” under specific circumstances); Foster v.\n\n\n 8 Section 2680(c) provides, in relevant part, that the FTCA immunity waiver applies\n“to any claim based on the injury or loss of goods, merchandise, or other property, while in\nthe possession of any officer of customs or excise or any other law enforcement officer, if—\n (1) the property was seized for the purpose of forfeiture under any provision of\n Federal law providing for the forfeiture of property other than as a sentence\n imposed upon conviction of a criminal offense;\n (2) the interest of the claimant was not forfeited;\n (3) the interest of the claimant was not remitted or mitigated (if the property\n was subject to forfeiture); and\n (4) the claimant was not convicted of a crime for which the interest of the\n claimant in the property was subject to forfeiture under a Federal criminal\n forfeiture law.”\n28 U.S.C. § 2680(c)(1)–(4). The subsection cross-references 28 U.S.C. § 1346(b), which in\nrelevant part provides that federal district courts have exclusive jurisdiction over post-\nJanuary 1, 1945 money damages claims against the United States for\n injury or loss of property, or personal injury or death caused by the negligent or\n wrongful act or omission of any employee of the Government while acting within\n the scope of his office or employment, under circumstances where the United\n States, if a private person, would be liable to the claimant in accordance with\n the law of the place where the act or omission occurred.\nId. § 1346(b)(1).\n 7\n\f Case: 18-10801 Document: 00515087912 Page: 8 Date Filed: 08/22/2019\n\n\n\n No. 18-10801\nUnited States, 522 F.3d 1071, 1075 (9th Cir. 2008) (explaining “CAFRA . . .\nrestored the waiver of sovereign immunity—or ‘re-waived’ sovereign\nimmunity—with respect to certain forfeiture-related seizures”). RRCC\noverlooks, however, that the FTCA waiver does not extend to “constitutional\ntorts” like the Fourth and Fifth Amendment damages claims pled in RRCC’s\ncounterclaims. We have squarely recognized that “[c]onstitutional torts . . . do\nnot provide a proper predicate for an FTCA claim.” Spotts v. United States, 613\nF.3d 559, 565 n.3 (5th Cir. 2010) (citing FDIC v. Meyer, 510 U.S. 471, 478\n(1994)); see also, e.g., Coleman v. United States, 912 F.3d 824, 835 (5th Cir.\n2019) (the “source of substantive liability under the FTCA” must be the “law of\nthe State” and not federal law (citing Meyer, 510 U.S. at 478)); Sanchez v. Rowe,\n870 F.2d 291, 295 (5th Cir. 1989) (explaining “the FTCA does not provide a\ncause of action for constitutional torts” because “by definition constitutional\ntorts are not based on state law” (cleaned up)). Thus, the FTCA waiver does\nnot encompass the constitutional damages claims in RRCC’s counterclaims,\nand the district court thus lacked jurisdiction over them. 9\n\n\n\n\n 9 We do not decide whether RRCC could bring valid FTCA claims as counterclaims in\na civil forfeiture proceeding. See, e.g., Life Partners Inc. v. United States, 650 F.3d 1026, 1029–\n30 (5th Cir. 2011) (discussing administrative exhaustion requirements which are “a\nprerequisite to suit under the FTCA”) (citing 28 U.S.C. § 2675(a); McAfee v. 5th Circuit\nJudges, 884 F.2d 221, 222–23 (5th Cir. 1989)). We decide only that the specific claims\nasserted in RRCC’s counterclaims fall outside the CAFRA re-waiver and are therefore barred\nby sovereign immunity. Additionally, we note that neither the Tucker Act nor its companion,\nthe Little Tucker Act, waive sovereign immunity over RRCC’s claims. The Tucker Act\nprovides a judicial avenue for “any claim against the United States founded . . . upon the\nConstitution.” 28 U.S.C. § 1491(a)(1); see also United States v. Bormes, 568 U.S. 6, 11 (2012)\n(discussing Tucker Act). The waiver in the Tucker Act, however, “has been limited to apply\nonly to the Takings Clause . . . because only that clause contemplates payment by the federal\ngovernment.” Rothe Dev. Corp. v. U.S. Dep’t of Defense, 194 F.3d 622, 625 (5th Cir. 1999).\nHere, RRCC does not invoke the Tucker Act, and its Fifth Amendment claims are premised\non an alleged due process violation, not the Takings Clause. See, e.g., Bellamy v. United\nStates, 7 Cl. Ct. 720, 723 (1985) (explaining claims court “has no jurisdiction over claims\nbased upon the Due Process and Equal Protection guarantees of the Fifth Amendment,\n 8\n\f Case: 18-10801 Document: 00515087912 Page: 9 Date Filed: 08/22/2019\n\n\n\n No. 18-10801\n RRCC also argues that the United States waives sovereign immunity\nsimply by “initiat[ing] an in rem proceeding.” RRCC cites no authority\nsupporting that grandiose proposition. It points only to admiralty cases\nallowing a limited cross-libel against the United States when the United States\nsues another vessel for collision damages. See United States v. The Thekla, 266\nU.S. 328 (1924); United States v. The Paquete Habana, 189 U.S. 453 (1903);\nThe Siren, 74 U.S. 152 (1868); see also, e.g., United States v. Shaw, 309 U.S.\n495, 502–03 (1940) (explaining that, in such cases, “it is necessary to determine\nthe cross-libel as well as the original libel to reach a conclusion as to liability\nfor the collision”). 10 But RRCC directs us to no authority for the proposition\nthat this distinct admiralty rule waives the United States’ sovereign immunity\nwhenever it institutes a civil forfeiture proceeding. Nor does RRCC direct us to\nany unambiguous statutory waiver of the United States’ immunity under such\ncircumstances. 11 As we have already explained, Congress did enact an\nunambiguous immunity waiver with respect to forfeiture proceedings, see 28\nU.S.C. § 2680(c)(1)–(4), but it has no application here.\n Finally, RRCC claims we cannot reach sovereign immunity for two\nreasons. First, RRCC points out the government did not raise the issue below.\nThat is irrelevant: Whether the United States’ sovereign immunity has been\n\n\n\n\nbecause these constitutional provisions do not obligate the Federal Government to pay money\ndamages” (quoting Carruth v. United States, 224 Ct. Cl. 422, 445 (1980) (cleaned up)).\n 10 See generally 2 AM. JUR. 2d ADMIRALTY § 44 (“Whenever the United States sues for\ndamage inflicted on its vessel or cargo, it impliedly waives its exemption from admiralty\njurisdiction as to cross libels or counterclaims arising from the same transaction.” (citing The\nThekla, 266 U.S. 328; The Western Maid, 257 U.S. 419 (1922))).\n 11 RRCC incorrectly points to the immunity waiver in 46 U.S.C. § 30903(a), but that\nstatute also pertains only to certain admiralty claims involving the United States. See, e.g.,\nMS Tabea Schiffahrtsgesellschaft MBH & Co. KG v. United States, 636 F.3d 161, 165 n.1 (5th\nCir. 2011) (explaining that “[t]he Suits in Admiralty Act (SAA) . . . provides the appropriate\nwaiver for maritime tort claims against the United States” (citing 46 U.S.C. § 30903)).\n 9\n\f Case: 18-10801 Document: 00515087912 Page: 10 Date Filed: 08/22/2019\n\n\n\n No. 18-10801\nwaived is a question of subject matter jurisdiction we can address for the first\ntime on appeal. See, e.g., Lewis v. Hunt, 492 F.3d 565, 568 (5th Cir. 2007)\n(holding that an appellate court may consider United States’ sovereign\nimmunity sua sponte, “[a]lthough the parties and the district court did not\nraise [it]”); Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006) (explaining\nthat lack of waiver of United States’ sovereign immunity under FTCA\n“deprives federal courts of subject matter jurisdiction”). Second, RRCC claims\nthat addressing sovereign immunity would convert a without-prejudice\ndismissal below into a with-prejudice dismissal on appeal, which would be\ninappropriate without a cross-appeal. See, e.g., Jennings v. Stephens, 135 S.\nCt. 793, 798 (2015) (explaining “an appellee who does not cross-appeal may not\n‘attack the [district court’s] decree with a view either to enlarging his own\nrights thereunder or of lessening the rights of his adversary’” (quoting United\nStates v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924))). RRCC is again\nmistaken. Claims barred by sovereign immunity are dismissed without\nprejudice, not with prejudice. See, e.g., Warnock v. Pecos Cty., Tex., 88 F.3d 341,\n343 (5th Cir. 1996) (explaining that “[b]ecause sovereign immunity deprives\nthe court of jurisdiction, the claims barred by sovereign immunity can be\ndismissed only under Rule 12(b)(1) and not with prejudice”); see also, e.g.,\nUnited States v. Tex. Tech Univ., 171 F.3d 279, 285 n.9 (5th Cir. 1999) (same,\nciting Warnock); 9 WRIGHT & MILLER, FED. PRAC. & PROC. § 2373 (because\ndismissal for lack of jurisdiction does not reach merits, claim “must be\nconsidered to have been dismissed without prejudice”). Thus, we may, and do,\nrule that RRCC’s counterclaims are barred by sovereign immunity. 12\n\n\n 12 Because we resolve the appeal on sovereign immunity grounds, we do not address\nthe government’s argument that RRCC’s damages counterclaims are barred by 28 U.S.C.\n§ 2465(b)(2)(A). Part of a provision addressing government liability for costs, fees, and\ninterest when a claimant prevails in a forfeiture proceeding, § 2465(b)(2)(A) provides that\n“[t]he United States shall not be required to disgorge the value of any intangible benefits nor\n 10\n\f Case: 18-10801 Document: 00515087912 Page: 11 Date Filed: 08/22/2019\n\n\n\n No. 18-10801\n IV.\n Congress has provided various remedies for claimants like RRCC who\nassert that the United States has wrongfully seized their property in forfeiture\nproceedings. See, e.g., United States v. Khan, 497 F.3d 204, 208 (2nd Cir. 2007)\n(by reforming the forfeiture laws in CAFRA, “Congress was reacting to public\noutcry over the government’s too-zealous pursuit of civil and criminal\nforfeitures”). Under certain circumstances, claimants who “substantially\nprevail[ ]” in a forfeiture action may recover attorneys’ fees, costs, and interest.\nSee 28 U.S.C. § 2465(b)(1)(A)–(C). In some cases, they may sue the United\nStates for property damages under the FTCA. See 28 U.S.C. § 2680(c)(1)–(4).\nWhat claimants may not do, however, is sue the United States for\nconstitutional torts arising out of the property seizure. Congress has not\nwaived the United States’ sovereign immunity for damages claims of that\nnature. Because RRCC’s counterclaims sought precisely those kinds of\ndamages, we hold its counterclaims are barred by sovereign immunity.\n We VACATE the district court’s judgment and REMAND with\ninstructions to dismiss RRCC’s counterclaims for lack of subject matter\njurisdiction.\n\n\n\n\nmake any other payments to the claimant not specifically authorized by this subsection.” 28\nU.S.C. § 2465(b)(2)(A).\n\n\n 11\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. $4,480,466.16 in Funds Seized\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10801 Document: 00515087912 Page: 1 Date Filed: 08/22/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n No. 18-10801 FILED\\n August 22, 2019\\n\\nUNITED STATES OF AMERICA, Lyle W. Cayce\\n Clerk\\n Plaintiff - Appellee\\n\\nv.\\n\\n$4,480,466.16 in funds seized from Bank of America account ending in 2653\\n\\n Defendant,\\n\\nRETAIL READY CAREER CENTER INCORPORATED,\\n\\n Claimant - Appellant\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore ELROD, WILLETT, and DUNCAN, Circuit Judges.\\nSTUART KYLE DUNCAN, Circuit Judge:\\n In this civil forfeiture proceeding, the United States seized millions of\\ndollars from a Texas vocational school, alleging the funds were the fruits of a\\nscheme to fleece veterans. The school intervened as a claimant, denied the\\ngovernment’s allegations, and counterclaimed for constitutional tort damages\\nagainst the government for ruining its business. The district court dismissed\\nthe school’s counterclaims as a matter of law. Finding no authority from our\\ncourt on the issue, the district court adopted the First Circuit’s view that\\n\\f Case: 18-10801 Document: 00515087912 Page: 2 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\nclaimants in an in rem forfeiture proceeding may never bring counterclaims.\\nSee United States v. One Lot of U.S. Currency ($68,000), 927 F.2d 30, 34 (1st\\nCir. 1991) (“$68,000”). On appeal, the school protests that this categorical rule\\nbarring all counterclaims in civil forfeiture proceedings is incorrect. We decline\\nto address that question, however, because the school’s specific counterclaims\\nare barred for a more fundamental reason—sovereign immunity—and so the\\ndistrict court lacked subject matter jurisdiction over them. We therefore vacate\\nthe district court’s judgment and remand with instructions to dismiss the\\nschool’s counterclaims for lack of subject matter jurisdiction.\\n I.\\n Appellant Retail Ready Career Center (“RRCC”) was a private school in\\nTexas offering a six-week “boot camp style” course to train students as Heating,\\nVentilation, and Air Conditioning (“HVAC”) technicians. 1 According to RRCC,\\n“[m]ost” students were “veterans who pa[id] for the course using their earned\\nGI Bill benefit,” but “courses were open to other participants” as well. In 2017,\\nthe United States Department of Veterans Affairs (“VA”) began investigating\\nwhether RRCC had falsely claimed to be in compliance with the “85-15” rule.\\nThis rule prohibits the VA from approving a veteran’s enrollment in a course\\n“for any period during which more than 85 percent of the students enrolled in\\nthe course are having all or part of their tuition, fees or other charges paid for\\nthem by the educational institution or by VA[.]” 38 C.F.R. § 21.4201. The rule’s\\npurpose is to “minimize the risk that veterans’ benefits will be wasted on\\neducational programs of little value . . . and to prevent charlatans from\\ngrabbing the veterans’ education money.” Cleland v. Nat’l Coll. of Bus., 435\\nU.S. 213, 219 (1978) (cleaned up).\\n\\n\\n 1 We draw these facts primarily from RRCC’s verified claim, which we accept as true\\nfor purposes of reviewing the district court’s grant of a motion to dismiss. See Masel v.\\nVillareal, 924 F.3d 734, 743 (5th Cir. 2019).\\n 2\\n\\f Case: 18-10801 Document: 00515087912 Page: 3 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\n In September 2017, federal warrants were issued to seize the money in\\nRRCC’s bank accounts—over $4.6 million—as the alleged proceeds of federal\\nlaw violations. See FED. R. CIV. P., SUPPLEMENTAL RULE (“SUPP. RULE”) G(3)(b)\\n(explaining “the court—on finding probable cause—must issue a warrant” to\\nseize movable property not in government control). 2 In October 2017, the\\ngovernment filed a complaint in rem seeking forfeiture of the funds under\\nvarious fraud and conspiracy statutes. 3 After receiving notice of that action,\\nRRCC filed a verified claim to the seized property. See 18 U.S.C. § 983(a)(4)(A)\\n(providing “[a]ny person claiming an interest in the seized property may file a\\nclaim asserting such person’s interest in the property”); SUPP. RULE G(5)(a)\\n(setting out claim requirements). In its verified claim, RRCC alleged that the\\nseizure occurred without prior notice or hearing; caused “an immediate and\\ndevastating effect on RRCC’s business”; and forced RRCC to “close the school,”\\ndismiss employees without pay, and fly students home lest they be “stranded\\nin Texas.” RRCC also included two “constitutional counterclaims,” which\\nalleged the seizure violated the Fourth and Fifth Amendments and sought\\n“damages to compensate [RRCC] for the destruction of its business.”\\n The government moved to dismiss RRCC’s counterclaims under Federal\\nRule of Civil Procedure 12(b)(6). Relying principally on the First Circuit’s\\ndecision in $68,000, 927 F.2d 30, the government argued that “claimants in\\n\\n\\n 2The government also seized other property not relevant to this appeal, including over\\n$100,000 from five other bank accounts; real property located in Dallas, Texas; and seven\\nluxury vehicles.\\n 3 See, e.g., 18 U.S.C. § 981(a)(1)(C) (providing “[a]ny property, real or personal, which\\nconstitutes or is derived from proceeds traceable to a violation of [certain federal laws]” is\\n“subject to forfeiture to the United States”); id. § 981(a)(1)(D) (providing “[a]ny property, real\\nor personal, which represents or is traceable to the gross receipts obtained, directly or\\nindirectly, from a violation of [federal fraud statutes]” is “subject to forfeiture to the United\\nStates”); id. § 982(a)(3) (providing a court shall order that a person convicted of a federal\\nfraud offense forfeit to the United States any property “which represents or is traceable to\\nthe gross receipts obtained, directly or indirectly, as a result of such violation”).\\n 3\\n\\f Case: 18-10801 Document: 00515087912 Page: 4 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\ncivil-forfeiture cases may not file counterclaims against the United States, as\\nthey are merely claimants, not the party against which the suit is directed.”\\nThe district court noted the parties had not cited “any binding Fifth Circuit\\nauthority” on this question, but found “persuasive” the First Circuit’s\\nreasoning in $68,000, 4 which had been followed by several district courts from\\nother circuits. 5 The court therefore granted the government’s motion to dismiss\\nRRCC’s counterclaims, “hold[ing] that, as a claimant in an in rem civil\\nforfeiture action, RRCC cannot bring a counterclaim.”\\n Meanwhile, the government struggled to state an adequate claim against\\nRRCC’s funds under the forfeiture rules. The district court dismissed the\\ngovernment’s first amended complaint, finding its allegations insufficiently\\nspecific. The second amended complaint met the same fate. See United States\\nv. $4,480,466.16 In Funds Seized, No. 3:17–CV–2989–D, 2018 WL 4096340, at\\n*3 (N.D. Tex. Aug. 28, 2018) (ruling allegations in second amended complaint\\n\\n\\n\\n 4 The entirety of the First Circuit’s reasoning on this point consists of this citation-\\nfree half-paragraph:\\n By definition, a counterclaim is a turn-the-tables response directed by one party\\n (“A”) at another party (“B”) in circumstances where “B” has earlier lodged a claim\\n in the same proceeding against “A.” A forfeiture action is in rem, not in\\n personam. The property is the defendant. Since no civil claim was filed by the\\n government against [the claimant]—indeed, rather than being dragooned into\\n the case as a defendant, he intervened as a claimant—there was no “claim” to\\n “counter.” Thus, [the claimant’s] self-styled counterclaim was a nullity, and the\\n court below appropriately ignored it.\\n$68,000, 927 F.2d at 34.\\n 5 See United States v. 8 Luxury Vehicles, 88 F. Supp. 3d 1332, 1337 (M.D. Fla. 2015);\\nUnited States v. Funds from Fifth Third Bank Account # 0065006695, No. 13-11728, 2013\\nWL 5914101, at *12 (E.D. Mich. Nov. 4, 2013); United States v. $22,832.00 in U.S. Currency,\\nNo. 1:12 CV 01987, 2013 WL 4012712, at *4 (N.D. Ohio Aug. 6, 2013); United States v.\\n$43,725.00 in U.S. Currency, No. 4:08–1373–TLW, 2009 WL 347475 at *1 (D.S.C. Feb. 3,\\n2009); United States v. 1866.75 Bd. Feet, No. 1:07cv1100 (GBL), 2008 WL 839792, at *3 (E.D.\\nVa. Mar. 25, 2008); United States v. Assorted Comput. Equip., No. 03–2356V, 2004 WL\\n784493, at *2 (W.D. Tenn. Jan. 9, 2004). The Sixth Circuit has recently adopted the First\\nCircuit’s rationale in $68,000. See Zappone v. United States, 870 F.3d 551, 561 (6th Cir. 2017).\\n 4\\n\\f Case: 18-10801 Document: 00515087912 Page: 5 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\nwere “insufficient to comply with Supp[lemental] R[ule] G(2)’s requirement\\nthat the complaint must ‘state sufficiently detailed facts to support a\\nreasonable belief that the government will be able to meet its burden of proof\\nat trial’”); SUPP. RULE G(2)(f). The parties continue to litigate that issue below. 6\\n The issues before us on appeal concern only the fate of RRCC’s\\ncounterclaims. On June 12, 2018, the district court entered a final judgment\\ndismissing RRCC’s counterclaims under Federal Rule of Civil Procedure 54(b),\\nwhich RRCC timely appealed. We have jurisdiction to review that Rule 54(b)\\njudgment. See New Amsterdam Cas. Co. v. United States, 272 F.2d 754, 756\\n(5th Cir. 1959) (dismissal of counterclaim, when plaintiff’s claim is still\\npending, is non-appealable “absent a certificate under Rule 54(b)”).\\n II.\\n We review the district court’s judgment dismissing RRCC’s\\ncounterclaims de novo, “accepting all well-pleaded facts [in RRCC’s\\ncounterclaims] as true and viewing those facts in the light most favorable to\\n[RRCC].” SGK Props., LLC v. U.S. Bank Nat’l Ass’n, 881 F.3d 933, 943 (5th\\nCir. 2018) (quoting Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007)). We may\\naffirm the district court’s judgment “on any basis supported by the record.”\\nTotal Gas & Power N. Am., Inc. v. FERC, 859 F.3d 325, 332 (5th Cir. 2017)\\n(citing Taylor v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015); EEOC v.\\nSimbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014)); see also Lee v. Kemna, 534\\nU.S. 362, 391 (2002) (“[I]t is well settled that an appellate tribunal may affirm\\na trial court’s judgment on any ground supported by the record.”).\\n\\n\\n 6 Following RRCC’s appeal in this case, the government filed its third amended\\ncomplaint, in response to which RRCC moved for dismissal and summary judgment. The\\ndistrict court has not ruled on those motions. Instead, the district court granted the\\ngovernment’s motion to stay the forfeiture action for 120 days during the pendency of a\\nrelated, ongoing criminal investigation. The stay expired June 6, 2019, at which point the\\ngovernment moved to extend the stay for an additional 120 days. That motion is pending\\nbefore the district court.\\n 5\\n\\f Case: 18-10801 Document: 00515087912 Page: 6 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\n III.\\n On appeal, RRCC asks us to disclaim the district court’s broad ruling\\nthat claimants in in rem civil forfeiture proceedings are barred, always and\\neverywhere, from filing counterclaims. We decline to address that question,\\nhowever, because RRCC’s counterclaims are barred for a more fundamental\\nreason: sovereign immunity. 7 As the government points out, the United States\\nhas not waived its sovereign immunity with respect to the particular claims\\nasserted in RRCC’s counterclaims—damages claims for violations of the\\nFourth and Fifth Amendments—and the district court therefore lacked subject\\nmatter jurisdiction over them. We agree.\\n “It is axiomatic that the United States may not be sued without its\\nconsent and that the existence of consent is a prerequisite for jurisdiction.”\\nUnited States v. Mitchell, 463 U.S. 206, 212 (1983) (citing United States v.\\nSherwood, 312 U.S. 584, 586 (1941); 14 WRIGHT, MILLER & COOPER, FED. PRAC.\\n& PROC. § 3654); see also, e.g., In re Supreme Beef Processors, Inc., 468 F.3d\\n248, 251–52 (5th Cir. 2006) (en banc) (“The Constitution contemplates that,\\nexcept as authorized by Congress, the federal government and its agencies are\\nimmune from suit.” (citing Hercules, Inc. v. United States, 516 U.S. 417, 422\\n(1996))). A waiver of sovereign immunity “cannot be implied but must be\\nunequivocally expressed,” and any waiver “will be strictly construed, in terms\\nof its scope, in favor of the sovereign.” Doe v. United States, 853 F.3d 792, 796\\n(5th Cir. 2017) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980);\\nLane v. Peña, 518 U.S. 187, 192 (1996)) (internal quotation marks omitted).\\nThe government argues that RRCC has identified no statute unequivocally\\n\\n\\n\\n 7 Because we rule on the basis of sovereign immunity, nothing in our opinion should\\nbe read as approving the First Circuit’s rationale in $68,000 that counterclaims in in rem\\nforfeiture proceedings are categorically barred. As the district court pointed out, no decision\\nof ours has adopted that broad view and we have no occasion to address whether it is correct.\\n 6\\n\\f Case: 18-10801 Document: 00515087912 Page: 7 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\nwaiving the United States’ immunity for the damages claims in RRCC’s\\ncounterclaims. Specifically, RRCC seeks damages arising from the\\n“unreasonable seizure” of its bank accounts in violation of the Fourth\\nAmendment and from the lack of “notice and hearing” in violation of the Fifth\\nAmendment’s Due Process Clause. The government is correct.\\n In its reply brief, RRCC attempts to identify the required waiver in 28\\nU.S.C. § 2680(c). In that provision, Congress “re-waived” the United States’\\nsovereign immunity under the Federal Tort Claims Act (“FTCA”) for certain\\nproperty damages claims arising out of forfeitures. 8 See, e.g., Smoke Shop, LLC\\nv. United States, 761 F.3d 779, 782 (7th Cir. 2014) (explaining that in the 2000\\nCivil Asset Forfeiture Reform Act or “CAFRA” Congress “‘rewaived’ the\\ngovernment’s immunity” under the FTCA “for tort actions stemming from law-\\nenforcement detentions of property” under specific circumstances); Foster v.\\n\\n\\n 8 Section 2680(c) provides, in relevant part, that the FTCA immunity waiver applies\\n“to any claim based on the injury or loss of goods, merchandise, or other property, while in\\nthe possession of any officer of customs or excise or any other law enforcement officer, if—\\n (1) the property was seized for the purpose of forfeiture under any provision of\\n Federal law providing for the forfeiture of property other than as a sentence\\n imposed upon conviction of a criminal offense;\\n (2) the interest of the claimant was not forfeited;\\n (3) the interest of the claimant was not remitted or mitigated (if the property\\n was subject to forfeiture); and\\n (4) the claimant was not convicted of a crime for which the interest of the\\n claimant in the property was subject to forfeiture under a Federal criminal\\n forfeiture law.”\\n28 U.S.C. § 2680(c)(1)–(4). The subsection cross-references 28 U.S.C. § 1346(b), which in\\nrelevant part provides that federal district courts have exclusive jurisdiction over post-\\nJanuary 1, 1945 money damages claims against the United States for\\n injury or loss of property, or personal injury or death caused by the negligent or\\n wrongful act or omission of any employee of the Government while acting within\\n the scope of his office or employment, under circumstances where the United\\n States, if a private person, would be liable to the claimant in accordance with\\n the law of the place where the act or omission occurred.\\nId. § 1346(b)(1).\\n 7\\n\\f Case: 18-10801 Document: 00515087912 Page: 8 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\nUnited States, 522 F.3d 1071, 1075 (9th Cir. 2008) (explaining “CAFRA . . .\\nrestored the waiver of sovereign immunity—or ‘re-waived’ sovereign\\nimmunity—with respect to certain forfeiture-related seizures”). RRCC\\noverlooks, however, that the FTCA waiver does not extend to “constitutional\\ntorts” like the Fourth and Fifth Amendment damages claims pled in RRCC’s\\ncounterclaims. We have squarely recognized that “[c]onstitutional torts . . . do\\nnot provide a proper predicate for an FTCA claim.” Spotts v. United States, 613\\nF.3d 559, 565 n.3 (5th Cir. 2010) (citing FDIC v. Meyer, 510 U.S. 471, 478\\n(1994)); see also, e.g., Coleman v. United States, 912 F.3d 824, 835 (5th Cir.\\n2019) (the “source of substantive liability under the FTCA” must be the “law of\\nthe State” and not federal law (citing Meyer, 510 U.S. at 478)); Sanchez v. Rowe,\\n870 F.2d 291, 295 (5th Cir. 1989) (explaining “the FTCA does not provide a\\ncause of action for constitutional torts” because “by definition constitutional\\ntorts are not based on state law” (cleaned up)). Thus, the FTCA waiver does\\nnot encompass the constitutional damages claims in RRCC’s counterclaims,\\nand the district court thus lacked jurisdiction over them. 9\\n\\n\\n\\n\\n 9 We do not decide whether RRCC could bring valid FTCA claims as counterclaims in\\na civil forfeiture proceeding. See, e.g., Life Partners Inc. v. United States, 650 F.3d 1026, 1029–\\n30 (5th Cir. 2011) (discussing administrative exhaustion requirements which are “a\\nprerequisite to suit under the FTCA”) (citing 28 U.S.C. § 2675(a); McAfee v. 5th Circuit\\nJudges, 884 F.2d 221, 222–23 (5th Cir. 1989)). We decide only that the specific claims\\nasserted in RRCC’s counterclaims fall outside the CAFRA re-waiver and are therefore barred\\nby sovereign immunity. Additionally, we note that neither the Tucker Act nor its companion,\\nthe Little Tucker Act, waive sovereign immunity over RRCC’s claims. The Tucker Act\\nprovides a judicial avenue for “any claim against the United States founded . . . upon the\\nConstitution.” 28 U.S.C. § 1491(a)(1); see also United States v. Bormes, 568 U.S. 6, 11 (2012)\\n(discussing Tucker Act). The waiver in the Tucker Act, however, “has been limited to apply\\nonly to the Takings Clause . . . because only that clause contemplates payment by the federal\\ngovernment.” Rothe Dev. Corp. v. U.S. Dep’t of Defense, 194 F.3d 622, 625 (5th Cir. 1999).\\nHere, RRCC does not invoke the Tucker Act, and its Fifth Amendment claims are premised\\non an alleged due process violation, not the Takings Clause. See, e.g., Bellamy v. United\\nStates, 7 Cl. Ct. 720, 723 (1985) (explaining claims court “has no jurisdiction over claims\\nbased upon the Due Process and Equal Protection guarantees of the Fifth Amendment,\\n 8\\n\\f Case: 18-10801 Document: 00515087912 Page: 9 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\n RRCC also argues that the United States waives sovereign immunity\\nsimply by “initiat[ing] an in rem proceeding.” RRCC cites no authority\\nsupporting that grandiose proposition. It points only to admiralty cases\\nallowing a limited cross-libel against the United States when the United States\\nsues another vessel for collision damages. See United States v. The Thekla, 266\\nU.S. 328 (1924); United States v. The Paquete Habana, 189 U.S. 453 (1903);\\nThe Siren, 74 U.S. 152 (1868); see also, e.g., United States v. Shaw, 309 U.S.\\n495, 502–03 (1940) (explaining that, in such cases, “it is necessary to determine\\nthe cross-libel as well as the original libel to reach a conclusion as to liability\\nfor the collision”). 10 But RRCC directs us to no authority for the proposition\\nthat this distinct admiralty rule waives the United States’ sovereign immunity\\nwhenever it institutes a civil forfeiture proceeding. Nor does RRCC direct us to\\nany unambiguous statutory waiver of the United States’ immunity under such\\ncircumstances. 11 As we have already explained, Congress did enact an\\nunambiguous immunity waiver with respect to forfeiture proceedings, see 28\\nU.S.C. § 2680(c)(1)–(4), but it has no application here.\\n Finally, RRCC claims we cannot reach sovereign immunity for two\\nreasons. First, RRCC points out the government did not raise the issue below.\\nThat is irrelevant: Whether the United States’ sovereign immunity has been\\n\\n\\n\\n\\nbecause these constitutional provisions do not obligate the Federal Government to pay money\\ndamages” (quoting Carruth v. United States, 224 Ct. Cl. 422, 445 (1980) (cleaned up)).\\n 10 See generally 2 AM. JUR. 2d ADMIRALTY § 44 (“Whenever the United States sues for\\ndamage inflicted on its vessel or cargo, it impliedly waives its exemption from admiralty\\njurisdiction as to cross libels or counterclaims arising from the same transaction.” (citing The\\nThekla, 266 U.S. 328; The Western Maid, 257 U.S. 419 (1922))).\\n 11 RRCC incorrectly points to the immunity waiver in 46 U.S.C. § 30903(a), but that\\nstatute also pertains only to certain admiralty claims involving the United States. See, e.g.,\\nMS Tabea Schiffahrtsgesellschaft MBH & Co. KG v. United States, 636 F.3d 161, 165 n.1 (5th\\nCir. 2011) (explaining that “[t]he Suits in Admiralty Act (SAA) . . . provides the appropriate\\nwaiver for maritime tort claims against the United States” (citing 46 U.S.C. § 30903)).\\n 9\\n\\f Case: 18-10801 Document: 00515087912 Page: 10 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\nwaived is a question of subject matter jurisdiction we can address for the first\\ntime on appeal. See, e.g., Lewis v. Hunt, 492 F.3d 565, 568 (5th Cir. 2007)\\n(holding that an appellate court may consider United States’ sovereign\\nimmunity sua sponte, “[a]lthough the parties and the district court did not\\nraise [it]”); Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006) (explaining\\nthat lack of waiver of United States’ sovereign immunity under FTCA\\n“deprives federal courts of subject matter jurisdiction”). Second, RRCC claims\\nthat addressing sovereign immunity would convert a without-prejudice\\ndismissal below into a with-prejudice dismissal on appeal, which would be\\ninappropriate without a cross-appeal. See, e.g., Jennings v. Stephens, 135 S.\\nCt. 793, 798 (2015) (explaining “an appellee who does not cross-appeal may not\\n‘attack the [district court’s] decree with a view either to enlarging his own\\nrights thereunder or of lessening the rights of his adversary’” (quoting United\\nStates v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924))). RRCC is again\\nmistaken. Claims barred by sovereign immunity are dismissed without\\nprejudice, not with prejudice. See, e.g., Warnock v. Pecos Cty., Tex., 88 F.3d 341,\\n343 (5th Cir. 1996) (explaining that “[b]ecause sovereign immunity deprives\\nthe court of jurisdiction, the claims barred by sovereign immunity can be\\ndismissed only under Rule 12(b)(1) and not with prejudice”); see also, e.g.,\\nUnited States v. Tex. Tech Univ., 171 F.3d 279, 285 n.9 (5th Cir. 1999) (same,\\nciting Warnock); 9 WRIGHT & MILLER, FED. PRAC. & PROC. § 2373 (because\\ndismissal for lack of jurisdiction does not reach merits, claim “must be\\nconsidered to have been dismissed without prejudice”). Thus, we may, and do,\\nrule that RRCC’s counterclaims are barred by sovereign immunity. 12\\n\\n\\n 12 Because we resolve the appeal on sovereign immunity grounds, we do not address\\nthe government’s argument that RRCC’s damages counterclaims are barred by 28 U.S.C.\\n§ 2465(b)(2)(A). Part of a provision addressing government liability for costs, fees, and\\ninterest when a claimant prevails in a forfeiture proceeding, § 2465(b)(2)(A) provides that\\n“[t]he United States shall not be required to disgorge the value of any intangible benefits nor\\n 10\\n\\f Case: 18-10801 Document: 00515087912 Page: 11 Date Filed: 08/22/2019\\n\\n\\n\\n No. 18-10801\\n IV.\\n Congress has provided various remedies for claimants like RRCC who\\nassert that the United States has wrongfully seized their property in forfeiture\\nproceedings. See, e.g., United States v. Khan, 497 F.3d 204, 208 (2nd Cir. 2007)\\n(by reforming the forfeiture laws in CAFRA, “Congress was reacting to public\\noutcry over the government’s too-zealous pursuit of civil and criminal\\nforfeitures”). Under certain circumstances, claimants who “substantially\\nprevail[ ]” in a forfeiture action may recover attorneys’ fees, costs, and interest.\\nSee 28 U.S.C. § 2465(b)(1)(A)–(C). In some cases, they may sue the United\\nStates for property damages under the FTCA. See 28 U.S.C. § 2680(c)(1)–(4).\\nWhat claimants may not do, however, is sue the United States for\\nconstitutional torts arising out of the property seizure. Congress has not\\nwaived the United States’ sovereign immunity for damages claims of that\\nnature. Because RRCC’s counterclaims sought precisely those kinds of\\ndamages, we hold its counterclaims are barred by sovereign immunity.\\n We VACATE the district court’s judgment and REMAND with\\ninstructions to dismiss RRCC’s counterclaims for lack of subject matter\\njurisdiction.\\n\\n\\n\\n\\nmake any other payments to the claimant not specifically authorized by this subsection.” 28\\nU.S.C. § 2465(b)(2)(A).\\n\\n\\n 11\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3689,"cells":{"id":{"kind":"number","value":4655286,"string":"4,655,286"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Jeff Faludi v. U.S. Shale Solutions, L.L.C."},"decision_date":{"kind":"string","value":"2019-08-22"},"docket_number":{"kind":"string","value":"17-20808"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JENNIFER WALKER ELROD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-20808 Document: 00515087619 Page: 1 Date Filed: 08/22/2019\\n\\n\\n\\n\\n REVISED August 22, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-20808 FILED\\n August 21, 2019\\n Lyle W. Cayce\\nJEFF FALUDI, Clerk\\n\\n Plaintiff – Appellant / Cross-Appellee,\\n\\nv.\\n\\nU.S. SHALE SOLUTIONS, L.L.C.,\\n\\n Defendant – Appellee / Cross-Appellant.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\\nJENNIFER WALKER ELROD, Circuit Judge:\\n Appellant Jeff Faludi, a former practicing attorney, took a consulting job\\nat an oil and gas services company. When Faludi left the company, he filed\\nthis lawsuit under the Fair Labor Standards Act (FLSA), seeking to recover\\nunpaid overtime wages. Because Faludi was exempt from the FLSA, we\\nAFFIRM the district court’s summary judgment in favor of his former\\nemployer. However, because the district court did not state its reasons for\\ndeclining to award costs to the prevailing party, we VACATE the award of costs\\nand REMAND that issue to the district court.\\n\\n Case: 17-20808 Document: 00515087619 Page: 2 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n I.\\n Jeff Faludi became a licensed lawyer in 1998, and he practiced law for\\nsixteen years until he allowed his license to lapse. Around the same time, one\\nof his former colleagues offered him a consulting position at a newly-formed oil\\nand gas services company, U.S. Shale Solutions, L.L.C. Faludi accepted the\\nposition, and the parties signed an “Independent Contractor Master\\nConsulting Services Agreement” in November 2014.\\n Under the agreement, Faludi agreed to work for U.S. Shale for “an\\nindefinite period of time” at a rate of $1,000 per day for every day he worked\\nin Houston and $1,350 per day for every day he worked outside of Houston.\\nThe agreement required Faludi to submit invoices to U.S. Shale for payment\\ntwice a month. The agreement also contained a non-compete clause\\nprohibiting Faludi from working for U.S. Shale’s competitors while the\\nagreement was in effect and for one year after its termination.\\n During the approximately sixteen months that Faludi worked for U.S.\\nShale, he submitted invoices to U.S. Shale once or twice a month. Although\\nhis day rate applied regardless of how many hours he worked, he often billed\\nU.S. Shale for less than the day rate when he did not work a full day. Faludi\\ntestified that he did this voluntarily, and U.S. Shale paid the requested\\namounts without asking why Faludi had billed for less than his day rate. Even\\nwith these prorated invoices, Faludi was paid at least $1,000 for every week in\\nwhich he performed work for U.S. Shale, and his annual compensation was\\napproximately $260,000.\\n Faludi left U.S. Shale in March 2016 after an internal reorganization.\\nShortly thereafter, he filed this lawsuit against the company for unpaid\\novertime wages he claimed he was owed under the FLSA. U.S. Shale sought\\nsummary judgment in the district court, arguing that Faludi was an\\nindependent contractor and thus not subject to the FLSA, or alternatively that\\n 2\\n\\n Case: 17-20808 Document: 00515087619 Page: 3 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\nhe was an exempt employee under either the “practice of law” exemption or the\\n“highly compensated employee” exemption to the FLSA. Faludi also sought a\\npartial summary judgment on the ground that he was an employee under the\\nFLSA and did not fall under any exemption.\\n The district court determined that genuine issues of material fact existed\\nas to whether Faludi was an employee or an independent contractor and\\nwhether he fell within the FLSA’s practice of law exemption. However, the\\ndistrict court granted U.S. Shale’s summary judgment motion because it found\\nthat Faludi was exempt as a matter of law under the highly compensated\\nemployee exemption to the FLSA. Although U.S. Shale was the prevailing\\nparty, the district court did not award U.S. Shale costs, nor did it explain why\\nit declined to do so. Faludi appeals the adverse summary judgment, and U.S.\\nShale cross-appeals on the issue of costs.\\n II.\\n We review a district court’s grant of summary judgment de novo.\\nJohnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014).\\nWhere the parties filed cross-motions for summary judgment, “we review each\\nparty’s motion independently, viewing the evidence and inferences in the light\\nmost favorable to the nonmoving party.” Parrish v. Premier Directional\\nDrilling, L.P., 917 F.3d 369, 380 (5th Cir. 2019) (quoting Duval v. N. Assurance\\nCo. of Am., 722 F.3d 300, 303 (5th Cir. 2013)). Summary judgment is\\nappropriate when “the movant shows that there is no genuine dispute as to\\nany material fact and the movant is entitled to judgment as a matter of law.”\\nFed. R. Civ. P. 56(a). We review a district court’s award of costs for an abuse\\nof discretion. Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th\\nCir. 2010).\\n\\n\\n\\n\\n 3\\n\\n Case: 17-20808 Document: 00515087619 Page: 4 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n III.\\n Under the FLSA, an employer must pay overtime compensation to its\\nnon-exempt employees who work more than forty hours a week. Cleveland v.\\nCity of Elmendorf, 388 F.3d 522, 526 (5th Cir. 2004). In contrast, independent\\ncontractors are not entitled to overtime under the FLSA. See 29 U.S.C.\\n§ 207(a)(1) (“[N]o employer shall employ any of his employees . . . for a\\nworkweek longer than forty hours unless such employee receives [overtime]\\ncompensation[.]” (emphasis added)); Parrish, 917 F.3d at 379 (explaining that\\nto make a prima facie case for unpaid overtime, a plaintiff must prove, inter\\nalia, that “there existed an employer-employee relationship during the unpaid\\novertime periods claimed”). In addition, the FLSA describes various types of\\nexempt employees who are excluded from the overtime requirement. See 29\\nU.S.C. §§ 207, 213. Relevant here, “the FLSA excludes from this requirement\\nthose employees working in a bona fide executive, administrative or\\nprofessional capacity.” Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203\\nF.3d 326, 331 (5th Cir. 2000) (citing 29 U.S.C. § 213(a)(1)).\\n Faludi argues on appeal that he was an employee and that no FLSA\\nexemption applied to him, so U.S. Shale was required to pay him overtime\\nunder the statute. U.S. Shale counters that Faludi was either an independent\\ncontractor or, in the alternative, an exempt employee under the highly\\ncompensated employee and practice of law exemptions to the FLSA—both of\\nwhich are regulatory expansions on the “bona fide executive, administrative,\\nor professional” exemption in 29 U.S.C. § 213(a)(1). See 29 C.F.R. § 541.601\\n(highly compensated employee exemption); 29 C.F.R. § 541.304(a)(1) (practice\\nof law exemption). We agree with the conclusion reached by the district court:\\nFaludi was exempt from the FLSA as a highly compensated employee and was\\ntherefore not entitled to overtime as a matter of law.\\n\\n\\n 4\\n\\n Case: 17-20808 Document: 00515087619 Page: 5 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n “[T]he ultimate decision whether [an] employee is exempt from the\\nFLSA’s overtime compensation provisions is a question of law.” Lott, 203 F.3d\\nat 331. The employer has the burden of establishing that an exemption applies\\nby a preponderance of the evidence. Meza v. Intelligent Mexican Mktg., Inc.,\\n720 F.3d 577, 581 (5th Cir. 2013). Under the Supreme Court’s decision in\\nEncino Motorcars, we must give FLSA exemptions a “fair reading” rather than\\nnarrowly construing them against the employer. Encino Motorcars, LLC v.\\nNavarro, 138 S. Ct. 1134, 1142 (2018); see also Carley v. Crest Pumping Techs.,\\nL.L.C., 890 F.3d 575, 579 (5th Cir. 2018).\\n Under the version of the highly compensated employee exemption in\\neffect when Faludi worked for U.S. Shale, an employee is exempt from the\\nFLSA’s overtime requirements if (1) he receives “total annual compensation of\\nat least $100,000”; and (2) he “customarily and regularly performs any one or\\nmore of the exempt duties or responsibilities of an executive, administrative or\\nprofessional employee[.]” Highly Compensated Employees, 69 Fed. Reg.\\n22,122, 22,269 (April 23, 2004) (current version at 29 C.F.R. § 541.601(a)). The\\nemployee also “must be compensated on a salary basis at a rate of not less than\\n$455 per week[.]” 29 C.F.R. § 541.600(a). The parties agree that Faludi\\nreceived at least $100,000 in annual compensation and that he performed the\\nduties of an executive, administrative, or professional employee under the\\nregulation. Thus, the only remaining issue is whether Faludi was\\ncompensated on a “salary basis.” In relevant part, the regulations provide the\\nfollowing with regard to the salary basis requirement:\\n An employee will be considered to be paid on a “salary basis”\\n within the meaning of these regulations if the employee regularly\\n receives each pay period on a weekly, or less frequent basis, a\\n predetermined amount constituting all or part of the employee’s\\n compensation, which amount is not subject to reduction because of\\n variations in the quality or quantity of the work performed. . . .\\n [A]n exempt employee must receive the full salary for any week in\\n 5\\n\\n Case: 17-20808 Document: 00515087619 Page: 6 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n which the employee performs any work without regard to the\\n number of days or hours worked. Exempt employees need not be\\n paid for any workweek in which they perform no work.\\n\\n29 C.F.R. § 541.602(a).\\n Faludi contends that his day rate of $1,000 (or $1,350 for work outside\\nof Houston) did not satisfy the salary basis requirement because it was not\\ncalculated “on a weekly, or less frequent basis.” 29 C.F.R. § 541.602(a). U.S.\\nShale responds that Faludi was nonetheless compensated on a salary basis\\nbecause his day rate guaranteed him $1,000 for every day that he worked, so\\nhe would receive more than the minimum of $455 per week for any week in\\nwhich he performed work. The text of the regulation favors U.S. Shale.\\n Faludi’s $1,000 day rate plainly constituted “a rate of not less than $455\\nper week” under 29 C.F.R. § 541.600(a): If Faludi worked for even one hour in\\na given week, he was guaranteed $1,000, which exceeds the regulatory\\nminimum of $455. And although Faludi contends that 29 C.F.R. § 541.602(a)\\nrequired his compensation to be calculated “on a weekly, or less frequent\\nbasis,” the text of the regulation only provides that Faludi must have\\n“regularly receive[d] each pay period on a weekly, or less frequent basis, a\\npredetermined amount[.]” But see Hughes v. Gulf Interstate Field Servs., Inc.,\\n878 F.3d 183, 189 (6th Cir. 2017) (indicating without analysis that 29 C.F.R.\\n§ 541.602(a) contemplates that an employee’s salary will be “calculated on a\\nweekly, or less frequent basis” (internal quotation marks omitted)). Faludi’s\\nindependent contractor agreement set a predetermined amount of\\ncompensation he was to receive—$1,000 per day—and provided for the\\nsubmission and payment of invoices on a less-frequent-than-weekly basis—\\ntwice a month. Thus, Faludi regularly received a predetermined amount of\\ncompensation on a weekly or less frequent basis in accordance with 29 C.F.R.\\n§ 541.602(a).\\n\\n 6\\n\\n Case: 17-20808 Document: 00515087619 Page: 7 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n Faludi also argues that his compensation did not meet the salary basis\\nrequirement because it was “subject to reduction because of variations in\\nthe . . . quantity of the work performed.” 29 C.F.R. § 541.602(a). Specifically,\\nFaludi emphasizes that he often did not bill U.S. Shale for his full day rate\\nwhen he worked less than a day and that U.S. Shale approved and paid these\\nprorated invoices. We reject this argument. Faludi’s voluntary reductions to\\nhis own compensation did not render it “subject to reduction” under the\\nregulation. To hold otherwise would permit employees to preclude reliance on\\nthe FLSA’s “bona fide executive, administrative, or professional” exemption by\\nintentionally reducing their own pay.\\n Finally, Faludi suggests that the requirements in 29 C.F.R. § 541.604(b)\\nprevented him from qualifying as a highly compensated employee. That\\nregulation stipulates that:\\n An exempt employee’s earnings may be computed on an hourly, a\\n daily or a shift basis, without losing the exemption or violating the\\n salary basis requirement, if the employment arrangement also\\n includes a guarantee of at least the minimum weekly required\\n amount paid on a salary basis regardless of the number of hours,\\n days or shifts worked, and a reasonable relationship exists\\n between the guaranteed amount and the amount actually earned.\\n The reasonable relationship test will be met if the weekly\\n guarantee is roughly equivalent to the employee’s usual earnings\\n at the assigned hourly, daily or shift rate for the employee’s normal\\n scheduled workweek.\\n\\n29 C.F.R. § 541.604(b). Faludi points out that no reasonable relationship\\nexisted between his $1,000 day rate and the amount he actually earned each\\nweek, which was often four or five times his day rate. Faludi’s argument once\\nagain misses the mark: Whether his compensation satisfied the reasonable\\nrelationship test is irrelevant because 29 C.F.R. § 541.604(b) does not apply to\\nemployees who meet the requirements of the highly compensated employee\\nexemption set out in 29 C.F.R. §§ 541.600, 541.601, and 541.602. Anani v. CVS\\n 7\\n\\n Case: 17-20808 Document: 00515087619 Page: 8 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\nRX Servs., Inc., 730 F.3d 146, 149 (2d Cir. 2013); Litz v. Saint Consulting Grp.,\\nInc., 772 F.3d 1, 5 (1st Cir. 2014). Because Faludi met these requirements—\\nspecifically, because his $1,000 day rate guaranteed him at least $455 per week\\nand he regularly received that predetermined amount on a weekly or less\\nfrequent basis—he was exempt from the FLSA’s overtime requirements as a\\nhighly compensated employee.\\n We therefore hold that the district court correctly granted summary\\njudgment on the ground that Faludi fit within the highly compensated\\nemployee exemption to the FLSA. As a result, we need not determine whether\\nhe was an employee or independent contractor or whether he also fit within\\nthe practice of law exemption.\\n IV.\\n We next turn to the question of whether the district court erred in\\ndeclining to award U.S. Shale costs as the prevailing party. U.S. Shale\\ncontends that it was entitled to costs under Federal Rule of Civil Procedure\\n54(d) because “[t]he FLSA does not preclude an award of costs to a prevailing\\ndefendant.” As a result, U.S. Shale urges us to reverse and remand with an\\ninstruction to the district court to award U.S. Shale costs on remand. Faludi\\nconcedes that we must reverse and remand on the costs issue, but he asks us\\nto remand for the district court to consider whether U.S. Shale is entitled to\\ncosts, and if the district court again declines to award costs to U.S. Shale, to\\nexplain its reasons for doing so. We agree with Faludi.\\n Rule 54(d) provides that “[u]nless a federal statute, these rules, or a court\\norder provides otherwise, costs—other than attorney’s fees—should be allowed\\nto the prevailing party.” Fed. R. Civ. P. 54(d). Under the FLSA, “[t]he court . . .\\nshall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow\\na reasonable attorney’s fee to be paid by the defendant, and costs of the action.”\\n29 U.S.C. § 216(b) (emphasis added). As U.S. Shale observes and Faludi\\n 8\\n\\n Case: 17-20808 Document: 00515087619 Page: 9 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\nconcedes, this provision in the FLSA does not preclude an award of costs to a\\nprevailing defendant. And we have explained that “a court ‘may neither deny\\nnor reduce a prevailing party’s request for cost[s] without first articulating\\nsome good reason for doing so.’” Pacheco v. Mineta, 448 F.3d 783, 794 (5th Cir.\\n2006) (quoting Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)). While\\nthe district court’s decision not to award costs to U.S. Shale may have been\\nwell-reasoned, its final judgment does not reveal that reasoning. Accordingly,\\nwe must vacate the award of costs and remand the issue to the district court.\\nOn remand, the district court should award U.S. Shale its costs or, in the\\nalternative, provide its reasons for declining to do so. See id. at 795 (“[W]e\\nvacate the award of costs and remand for a re-determination of whether (or to\\nwhat extent) costs should be awarded to the prevailing party and, if not, the\\nreasons for that denial.”).\\n V.\\n The district court properly concluded that Faludi was not entitled to\\novertime compensation under the FLSA because he was exempt as a highly\\ncompensated employee. We therefore AFFIRM summary judgment in favor of\\nU.S. Shale. We VACATE the district court’s award of costs and REMAND that\\nissue, directing the district court to either award costs to U.S. Shale or state\\nits reasons for declining to do so.\\n\\n\\n\\n\\n 9\\n\\n Case: 17-20808 Document: 00515087619 Page: 10 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4432539/\", \"author_raw\": \"JENNIFER WALKER ELROD, Circuit Judge:\"}, {\"author\": \"JAMES C. HO, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JAMES C. HO, Circuit Judge, dissenting:\\n If we were limited to the statutes enacted by Congress, as our Founders\\nunderstood the Constitution to require, I would have voted with the majority.\\nBut we are also bound by regulations issued by the Department of Labor, and\\nbecause I read those differently from the majority, I respectfully dissent.\\n The Constitution vests “[a]ll legislative powers herein granted” in\\nCongress. U.S. CONST. art. I, § 1. So the power to impose rules restricting\\nliberty rests exclusively in Congress. As Justice Gorsuch recently wrote, joined\\nby the Chief Justice and Justice Thomas: “The Constitution promises that only\\nthe people’s elected representatives may adopt new federal laws restricting\\nliberty,” and “[n]o one, not even Congress, ha[s] the right to alter that\\narrangement.” Gundy v. United States, 139 S. Ct. 2116, 2131, 2133 (2019)\\n(Gorsuch, J., dissenting) (emphasis added). Our Founders’ reasoning was\\nsimple: “They believed the new federal government’s most dangerous power\\nwas the power to enact laws restricting the people’s liberty. An ‘excess of law-\\nmaking’ was, in their words, one of ‘the diseases to which our governments are\\nmost liable.’” Id. at 2134 (quoting THE FEDERALIST No. 62 (James Madison)).\\n This understanding of the legislative power has lain dormant for nearly\\na century. But four members of the Supreme Court have recently expressed\\ninterest in breathing life back into the doctrine. See id. at 2130–31 (Alito, J.,\\nconcurring); id. at 2131–43 (Gorsuch, J., dissenting). See also Dep’t of Transp.\\nv. Ass’n of Am. Railroads, 135 S. Ct. 1225, 1242 (2015) (Thomas, J., concurring)\\n(“The function at issue here is the formulation of generally applicable rules of\\nprivate conduct. Under the original understanding of the Constitution, that\\nfunction requires the exercise of legislative power.”); Whitman v. Am. Trucking\\nAss’n, 531 U.S. 457, 487 (2001) (Thomas, J., concurring).\\n This case provides one modest illustration of how restoring the Founders’\\nvision can affect how we decide cases.\\n 10\\n\\n Case: 17-20808 Document: 00515087619 Page: 11 Date Filed: 08/22/2019\\n\\n\\n No. 17-20808\\n\\n If we were looking only at statutes enacted by Congress, I would join my\\ncolleagues in affirming the district court, because it seems obvious that Jeff\\nFaludi was “employed in a bona fide . . . professional capacity” and therefore\\nexempt from the overtime requirements of the Fair Labor Standards Act. 29\\nU.S.C. § 213(a)(1).\\n But Congress has delegated to the Secretary of Labor the power to both\\n“define[] and delimit[]” the scope of the professional exception, and thereby\\ndetermine who shall and shall not be subject to federal overtime rules. Id. And\\nunder my best reading of the relevant Labor Department regulations, I part\\ncompany with my colleagues.\\n That is because the method by which U.S. Shale compensates Faludi\\ndoes not satisfy the “salary-basis” test set forth by the Secretary:\\n An employee will be considered to be paid on a “salary basis”\\n within the meaning of these regulations if the employee regularly\\n receives each pay period on a weekly, or less frequent basis, a\\n predetermined amount constituting all or part of the employee’s\\n compensation, which amount is not subject to reduction because of\\n variations in the quality or quantity of the work performed.\\n Subject to the exceptions provided in paragraph (b) of this section,\\n an exempt employee must receive the full salary for any week in\\n which the employee performs any work without regard to the\\n number of days or hours worked.\\n\\n29 C.F.R. § 541.602(a) (emphases added).\\n As the majority correctly notes, U.S. Shale paid Faludi on a daily, not\\nweekly, rate. Faludi did not “regularly receive” a “predetermined amount” on\\na weekly basis. Instead, his pay depended on the number of days he worked.\\n U.S. Shale creatively argues that Faludi’s daily rate of $1,000 can be\\nrecharacterized as a weekly rate of at least $1,000, so long as he works at least\\none day a week. But that does not alter the fact that Faludi receives a\\n“predetermined amount” on a daily basis, and not “on a weekly, or less frequent\\nbasis.” Nor can I reconcile U.S. Shale’s theory with the requirement that “an\\n 11\\n\\n Case: 17-20808 Document: 00515087619 Page: 12 Date Filed: 08/22/2019\\n\\n\\n No. 17-20808\\n\\nexempt employee must receive the full salary for any week in which the\\nemployee performs any work without regard to the number of days or hours\\nworked.” Id. (emphases added).\\n My reading of 29 C.F.R. § 541.602(a) is bolstered by 29 C.F.R.\\n§ 541.604(b), which provides:\\n An exempt employee’s earnings may be computed on . . . a daily. . .\\n basis, without . . . violating the salary basis requirement, if [1] the\\n employment arrangement also includes a guarantee of at least the\\n minimum weekly required amount paid on a salary basis\\n regardless of the number of hours, days or shifts worked, and [2] a\\n reasonable relationship exists between the guaranteed amount\\n and the amount actually earned.\\n\\n29 C.F.R. § 541.604(b). See also Hughes v. Gulf Interstate Field Servs. Inc., 878\\nF.3d 183, 189 (6th Cir. 2017) (relying on 29 C.F.R. § 541.604(b) because “[t]he\\ntext of § 541.602(a) does not tell us what to do when an employee’s salary is\\nnot clearly calculated ‘on a weekly, or less frequent basis’”).\\n According to U.S. Shale, the “guaranteed” “weekly required amount” is\\n$1,000. But that weekly guarantee does not have a “reasonable relationship”\\nwith Faludi’s total compensation of approximately $260,000, as the regulations\\nmake clear. See 29 C.F.R. § 541.604(b) (“The reasonable relationship test will\\nbe met if the weekly guarantee is roughly equivalent to the employee’s usual\\nearnings at the assigned hourly, daily or shift rate for the employee’s normal\\nscheduled workweek. Thus, for example, if the weekly salary level is $913, an\\nexempt employee guaranteed compensation of at least $1,000 for any week in\\nwhich the employee performs any work, and who normally works four or five\\nshifts each week, may be paid $300 per shift without violating the salary basis\\nrequirement.”).\\n Accordingly, I would reverse and remand for further proceedings, to\\nallow the district court to address in the first instance whether Faludi is an\\nindependent contractor and therefore not entitled to overtime.\\n 12\\n\\n Case: 17-20808 Document: 00515087619 Page: 13 Date Filed: 08/22/2019\\n\\n\\n No. 17-20808\\n\\n ***\\n Under the Constitution, the people have the right to fire those who make\\nthe law. “[B]y directing that legislating be done only by elected representatives\\nin a public process, the Constitution sought to ensure that the lines of\\naccountability would be clear: The sovereign people would know, without\\nambiguity, whom to hold accountable for the laws they would have to follow.”\\nGundy, 139 S. Ct. at 2134 (Gorsuch, J., dissenting) (citations omitted). See also\\nid. at 2133–34 (“‘[N]or can the people be bound by any laws but such as are\\nenacted by those whom they have chosen and authorised to make laws for\\nthem.’”) (quoting JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT\\nAND A LETTER CONCERNING TOLERATION § 141).\\n That vision is eviscerated when the legislative power is exercised, not by\\nduly elected members of Congress, but by Executive Branch officials who, once\\nappointed, are effectively untouchable by the people. 1\\n Perhaps the Supreme Court will someday revive the nondelegation\\ndoctrine and restore the Founders’ vision of the Constitution. 2 But until then,\\nI agree with the majority that we are duty-bound to follow Labor Department\\nregulations. We simply disagree on the best reading of those regulations. For\\nthat reason, I respectfully dissent.\\n\\n\\n\\n\\n 1 See also Voices for Int’l Bus. & Educ., Inc. v. NLRB, 905 F.3d 770, 781 (5th Cir. 2018)\\n(Ho, J., concurring) (“[I]f law is to be made or changed, it must be done as the Constitution\\ncommands—through Article I, Section 7, not Article II, Section 2.”).\\n 2 The Supreme Court is not the only branch of government that can play a role. In\\n\\nWest Virginia, for example, administrative agencies can promulgate regulations, but only if\\nthose regulations are first approved by the Legislature. See W. VA. CODE § 29A-3-11, 12.\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4432539/\", \"author_raw\": \"JAMES C. HO, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"HO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HIGGINBOTHAM\": \", Circuit\", \"ELROD\": \", Circuit\", \"HO\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4655286/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jeff Faludi v. U.S. Shale Solutions, L.L.C.\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-22\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-20808 Document: 00515087619 Page: 1 Date Filed: 08/22/2019\n\n\n\n\n REVISED August 22, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-20808 FILED\n August 21, 2019\n Lyle W. Cayce\nJEFF FALUDI, Clerk\n\n Plaintiff – Appellant / Cross-Appellee,\n\nv.\n\nU.S. SHALE SOLUTIONS, L.L.C.,\n\n Defendant – Appellee / Cross-Appellant.\n\n\n\n\n Appeals from the United States District Court\n for the Southern District of Texas\n\n\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\nJENNIFER WALKER ELROD, Circuit Judge:\n Appellant Jeff Faludi, a former practicing attorney, took a consulting job\nat an oil and gas services company. When Faludi left the company, he filed\nthis lawsuit under the Fair Labor Standards Act (FLSA), seeking to recover\nunpaid overtime wages. Because Faludi was exempt from the FLSA, we\nAFFIRM the district court’s summary judgment in favor of his former\nemployer. However, because the district court did not state its reasons for\ndeclining to award costs to the prevailing party, we VACATE the award of costs\nand REMAND that issue to the district court.\n\n Case: 17-20808 Document: 00515087619 Page: 2 Date Filed: 08/22/2019\n\n\n\n No. 17-20808\n I.\n Jeff Faludi became a licensed lawyer in 1998, and he practiced law for\nsixteen years until he allowed his license to lapse. Around the same time, one\nof his former colleagues offered him a consulting position at a newly-formed oil\nand gas services company, U.S. Shale Solutions, L.L.C. Faludi accepted the\nposition, and the parties signed an “Independent Contractor Master\nConsulting Services Agreement” in November 2014.\n Under the agreement, Faludi agreed to work for U.S. Shale for “an\nindefinite period of time” at a rate of $1,000 per day for every day he worked\nin Houston and $1,350 per day for every day he worked outside of Houston.\nThe agreement required Faludi to submit invoices to U.S. Shale for payment\ntwice a month. The agreement also contained a non-compete clause\nprohibiting Faludi from working for U.S. Shale’s competitors while the\nagreement was in effect and for one year after its termination.\n During the approximately sixteen months that Faludi worked for U.S.\nShale, he submitted invoices to U.S. Shale once or twice a month. Although\nhis day rate applied regardless of how many hours he worked, he often billed\nU.S. Shale for less than the day rate when he did not work a full day. Faludi\ntestified that he did this voluntarily, and U.S. Shale paid the requested\namounts without asking why Faludi had billed for less than his day rate. Even\nwith these prorated invoices, Faludi was paid at least $1,000 for every week in\nwhich he performed work for U.S. Shale, and his annual compensation was\napproximately $260,000.\n Faludi left U.S. Shale in March 2016 after an internal reorganization.\nShortly thereafter, he filed this lawsuit against the company for unpaid\novertime wages he claimed he was owed under the FLSA. U.S. Shale sought\nsummary judgment in the district court, arguing that Faludi was an\nindependent contractor and thus not subject to the FLSA, or alternatively that\n 2\n\n Case: 17-20808 Document: 00515087619 Page: 3 Date Filed: 08/22/2019\n\n\n\n No. 17-20808\nhe was an exempt employee under either the “practice of law” exemption or the\n“highly compensated employee” exemption to the FLSA. Faludi also sought a\npartial summary judgment on the ground that he was an employee under the\nFLSA and did not fall under any exemption.\n The district court determined that genuine issues of material fact existed\nas to whether Faludi was an employee or an independent contractor and\nwhether he fell within the FLSA’s practice of law exemption. However, the\ndistrict court granted U.S. Shale’s summary judgment motion because it found\nthat Faludi was exempt as a matter of law under the highly compensated\nemployee exemption to the FLSA. Although U.S. Shale was the prevailing\nparty, the district court did not award U.S. Shale costs, nor did it explain why\nit declined to do so. Faludi appeals the adverse summary judgment, and U.S.\nShale cross-appeals on the issue of costs.\n II.\n We review a district court’s grant of summary judgment de novo.\nJohnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014).\nWhere the parties filed cross-motions for summary judgment, “we review each\nparty’s motion independently, viewing the evidence and inferences in the light\nmost favorable to the nonmoving party.” Parrish v. Premier Directional\nDrilling, L.P., 917 F.3d 369, 380 (5th Cir. 2019) (quoting Duval v. N. Assurance\nCo. of Am., 722 F.3d 300, 303 (5th Cir. 2013)). Summary judgment is\nappropriate when “the movant shows that there is no genuine dispute as to\nany material fact and the movant is entitled to judgment as a matter of law.”\nFed. R. Civ. P. 56(a). We review a district court’s award of costs for an abuse\nof discretion. Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th\nCir. 2010).\n\n\n\n\n 3\n\n Case: 17-20808 Document: 00515087619 Page: 4 Date Filed: 08/22/2019\n\n\n\n No. 17-20808\n III.\n Under the FLSA, an employer must pay overtime compensation to its\nnon-exempt employees who work more than forty hours a week. Cleveland v.\nCity of Elmendorf, 388 F.3d 522, 526 (5th Cir. 2004). In contrast, independent\ncontractors are not entitled to overtime under the FLSA. See 29 U.S.C.\n§ 207(a)(1) (“[N]o employer shall employ any of his employees . . . for a\nworkweek longer than forty hours unless such employee receives [overtime]\ncompensation[.]” (emphasis added)); Parrish, 917 F.3d at 379 (explaining that\nto make a prima facie case for unpaid overtime, a plaintiff must prove, inter\nalia, that “there existed an employer-employee relationship during the unpaid\novertime periods claimed”). In addition, the FLSA describes various types of\nexempt employees who are excluded from the overtime requirement. See 29\nU.S.C. §§ 207, 213. Relevant here, “the FLSA excludes from this requirement\nthose employees working in a bona fide executive, administrative or\nprofessional capacity.” Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203\nF.3d 326, 331 (5th Cir. 2000) (citing 29 U.S.C. § 213(a)(1)).\n Faludi argues on appeal that he was an employee and that no FLSA\nexemption applied to him, so U.S. Shale was required to pay him overtime\nunder the statute. U.S. Shale counters that Faludi was either an independent\ncontractor or, in the alternative, an exempt employee under the highly\ncompensated employee and practice of law exemptions to the FLSA—both of\nwhich are regulatory expansions on the “bona fide executive, administrative,\nor professional” exemption in 29 U.S.C. § 213(a)(1). See 29 C.F.R. § 541.601\n(highly compensated employee exemption); 29 C.F.R. § 541.304(a)(1) (practice\nof law exemption). We agree with the conclusion reached by the district court:\nFaludi was exempt from the FLSA as a highly compensated employee and was\ntherefore not entitled to overtime as a matter of law.\n\n\n 4\n\n Case: 17-20808 Document: 00515087619 Page: 5 Date Filed: 08/22/2019\n\n\n\n No. 17-20808\n “[T]he ultimate decision whether [an] employee is exempt from the\nFLSA’s overtime compensation provisions is a question of law.” Lott, 203 F.3d\nat 331. The employer has the burden of establishing that an exemption applies\nby a preponderance of the evidence. Meza v. Intelligent Mexican Mktg., Inc.,\n720 F.3d 577, 581 (5th Cir. 2013). Under the Supreme Court’s decision in\nEncino Motorcars, we must give FLSA exemptions a “fair reading” rather than\nnarrowly construing them against the employer. Encino Motorcars, LLC v.\nNavarro, 138 S. Ct. 1134, 1142 (2018); see also Carley v. Crest Pumping Techs.,\nL.L.C., 890 F.3d 575, 579 (5th Cir. 2018).\n Under the version of the highly compensated employee exemption in\neffect when Faludi worked for U.S. Shale, an employee is exempt from the\nFLSA’s overtime requirements if (1) he receives “total annual compensation of\nat least $100,000”; and (2) he “customarily and regularly performs any one or\nmore of the exempt duties or responsibilities of an executive, administrative or\nprofessional employee[.]” Highly Compensated Employees, 69 Fed. Reg.\n22,122, 22,269 (April 23, 2004) (current version at 29 C.F.R. § 541.601(a)). The\nemployee also “must be compensated on a salary basis at a rate of not less than\n$455 per week[.]” 29 C.F.R. § 541.600(a). The parties agree that Faludi\nreceived at least $100,000 in annual compensation and that he performed the\nduties of an executive, administrative, or professional employee under the\nregulation. Thus, the only remaining issue is whether Faludi was\ncompensated on a “salary basis.” In relevant part, the regulations provide the\nfollowing with regard to the salary basis requirement:\n An employee will be considered to be paid on a “salary basis”\n within the meaning of these regulations if the employee regularly\n receives each pay period on a weekly, or less frequent basis, a\n predetermined amount constituting all or part of the employee’s\n compensation, which amount is not subject to reduction because of\n variations in the quality or quantity of the work performed. . . .\n [A]n exempt employee must receive the full salary for any week in\n 5\n\n Case: 17-20808 Document: 00515087619 Page: 6 Date Filed: 08/22/2019\n\n\n\n No. 17-20808\n which the employee performs any work without regard to the\n number of days or hours worked. Exempt employees need not be\n paid for any workweek in which they perform no work.\n\n29 C.F.R. § 541.602(a).\n Faludi contends that his day rate of $1,000 (or $1,350 for work outside\nof Houston) did not satisfy the salary basis requirement because it was not\ncalculated “on a weekly, or less frequent basis.” 29 C.F.R. § 541.602(a). U.S.\nShale responds that Faludi was nonetheless compensated on a salary basis\nbecause his day rate guaranteed him $1,000 for every day that he worked, so\nhe would receive more than the minimum of $455 per week for any week in\nwhich he performed work. The text of the regulation favors U.S. Shale.\n Faludi’s $1,000 day rate plainly constituted “a rate of not less than $455\nper week” under 29 C.F.R. § 541.600(a): If Faludi worked for even one hour in\na given week, he was guaranteed $1,000, which exceeds the regulatory\nminimum of $455. And although Faludi contends that 29 C.F.R. § 541.602(a)\nrequired his compensation to be calculated “on a weekly, or less frequent\nbasis,” the text of the regulation only provides that Faludi must have\n“regularly receive[d] each pay period on a weekly, or less frequent basis, a\npredetermined amount[.]” But see Hughes v. Gulf Interstate Field Servs., Inc.,\n878 F.3d 183, 189 (6th Cir. 2017) (indicating without analysis that 29 C.F.R.\n§ 541.602(a) contemplates that an employee’s salary will be “calculated on a\nweekly, or less frequent basis” (internal quotation marks omitted)). Faludi’s\nindependent contractor agreement set a predetermined amount of\ncompensation he was to receive—$1,000 per day—and provided for the\nsubmission and payment of invoices on a less-frequent-than-weekly basis—\ntwice a month. Thus, Faludi regularly received a predetermined amount of\ncompensation on a weekly or less frequent basis in accordance with 29 C.F.R.\n§ 541.602(a).\n\n 6\n\n Case: 17-20808 Document: 00515087619 Page: 7 Date Filed: 08/22/2019\n\n\n\n No. 17-20808\n Faludi also argues that his compensation did not meet the salary basis\nrequirement because it was “subject to reduction because of variations in\nthe . . . quantity of the work performed.” 29 C.F.R. § 541.602(a). Specifically,\nFaludi emphasizes that he often did not bill U.S. Shale for his full day rate\nwhen he worked less than a day and that U.S. Shale approved and paid these\nprorated invoices. We reject this argument. Faludi’s voluntary reductions to\nhis own compensation did not render it “subject to reduction” under the\nregulation. To hold otherwise would permit employees to preclude reliance on\nthe FLSA’s “bona fide executive, administrative, or professional” exemption by\nintentionally reducing their own pay.\n Finally, Faludi suggests that the requirements in 29 C.F.R. § 541.604(b)\nprevented him from qualifying as a highly compensated employee. That\nregulation stipulates that:\n An exempt employee’s earnings may be computed on an hourly, a\n daily or a shift basis, without losing the exemption or violating the\n salary basis requirement, if the employment arrangement also\n includes a guarantee of at least the minimum weekly required\n amount paid on a salary basis regardless of the number of hours,\n days or shifts worked, and a reasonable relationship exists\n between the guaranteed amount and the amount actually earned.\n The reasonable relationship test will be met if the weekly\n guarantee is roughly equivalent to the employee’s usual earnings\n at the assigned hourly, daily or shift rate for the employee’s normal\n scheduled workweek.\n\n29 C.F.R. § 541.604(b). Faludi points out that no reasonable relationship\nexisted between his $1,000 day rate and the amount he actually earned each\nweek, which was often four or five times his day rate. Faludi’s argument once\nagain misses the mark: Whether his compensation satisfied the reasonable\nrelationship test is irrelevant because 29 C.F.R. § 541.604(b) does not apply to\nemployees who meet the requirements of the highly compensated employee\nexemption set out in 29 C.F.R. §§ 541.600, 541.601, and 541.602. Anani v. CVS\n 7\n\n Case: 17-20808 Document: 00515087619 Page: 8 Date Filed: 08/22/2019\n\n\n\n No. 17-20808\nRX Servs., Inc., 730 F.3d 146, 149 (2d Cir. 2013); Litz v. Saint Consulting Grp.,\nInc., 772 F.3d 1, 5 (1st Cir. 2014). Because Faludi met these requirements—\nspecifically, because his $1,000 day rate guaranteed him at least $455 per week\nand he regularly received that predetermined amount on a weekly or less\nfrequent basis—he was exempt from the FLSA’s overtime requirements as a\nhighly compensated employee.\n We therefore hold that the district court correctly granted summary\njudgment on the ground that Faludi fit within the highly compensated\nemployee exemption to the FLSA. As a result, we need not determine whether\nhe was an employee or independent contractor or whether he also fit within\nthe practice of law exemption.\n IV.\n We next turn to the question of whether the district court erred in\ndeclining to award U.S. Shale costs as the prevailing party. U.S. Shale\ncontends that it was entitled to costs under Federal Rule of Civil Procedure\n54(d) because “[t]he FLSA does not preclude an award of costs to a prevailing\ndefendant.” As a result, U.S. Shale urges us to reverse and remand with an\ninstruction to the district court to award U.S. Shale costs on remand. Faludi\nconcedes that we must reverse and remand on the costs issue, but he asks us\nto remand for the district court to consider whether U.S. Shale is entitled to\ncosts, and if the district court again declines to award costs to U.S. Shale, to\nexplain its reasons for doing so. We agree with Faludi.\n Rule 54(d) provides that “[u]nless a federal statute, these rules, or a court\norder provides otherwise, costs—other than attorney’s fees—should be allowed\nto the prevailing party.” Fed. R. Civ. P. 54(d). Under the FLSA, “[t]he court . . .\nshall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow\na reasonable attorney’s fee to be paid by the defendant, and costs of the action.”\n29 U.S.C. § 216(b) (emphasis added). As U.S. Shale observes and Faludi\n 8\n\n Case: 17-20808 Document: 00515087619 Page: 9 Date Filed: 08/22/2019\n\n\n\n No. 17-20808\nconcedes, this provision in the FLSA does not preclude an award of costs to a\nprevailing defendant. And we have explained that “a court ‘may neither deny\nnor reduce a prevailing party’s request for cost[s] without first articulating\nsome good reason for doing so.’” Pacheco v. Mineta, 448 F.3d 783, 794 (5th Cir.\n2006) (quoting Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)). While\nthe district court’s decision not to award costs to U.S. Shale may have been\nwell-reasoned, its final judgment does not reveal that reasoning. Accordingly,\nwe must vacate the award of costs and remand the issue to the district court.\nOn remand, the district court should award U.S. Shale its costs or, in the\nalternative, provide its reasons for declining to do so. See id. at 795 (“[W]e\nvacate the award of costs and remand for a re-determination of whether (or to\nwhat extent) costs should be awarded to the prevailing party and, if not, the\nreasons for that denial.”).\n V.\n The district court properly concluded that Faludi was not entitled to\novertime compensation under the FLSA because he was exempt as a highly\ncompensated employee. We therefore AFFIRM summary judgment in favor of\nU.S. Shale. We VACATE the district court’s award of costs and REMAND that\nissue, directing the district court to either award costs to U.S. Shale or state\nits reasons for declining to do so.\n\n\n\n\n 9\n\n Case: 17-20808 Document: 00515087619 Page: 10 Date Filed: 08/22/2019\n\n\n\n No. 17-20808\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jeff Faludi v. U.S. Shale Solutions, L.L.C.\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-22\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-20808 Document: 00515087619 Page: 1 Date Filed: 08/22/2019\\n\\n\\n\\n\\n REVISED August 22, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-20808 FILED\\n August 21, 2019\\n Lyle W. Cayce\\nJEFF FALUDI, Clerk\\n\\n Plaintiff – Appellant / Cross-Appellee,\\n\\nv.\\n\\nU.S. SHALE SOLUTIONS, L.L.C.,\\n\\n Defendant – Appellee / Cross-Appellant.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, ELROD, and HO, Circuit Judges.\\nJENNIFER WALKER ELROD, Circuit Judge:\\n Appellant Jeff Faludi, a former practicing attorney, took a consulting job\\nat an oil and gas services company. When Faludi left the company, he filed\\nthis lawsuit under the Fair Labor Standards Act (FLSA), seeking to recover\\nunpaid overtime wages. Because Faludi was exempt from the FLSA, we\\nAFFIRM the district court’s summary judgment in favor of his former\\nemployer. However, because the district court did not state its reasons for\\ndeclining to award costs to the prevailing party, we VACATE the award of costs\\nand REMAND that issue to the district court.\\n\\n Case: 17-20808 Document: 00515087619 Page: 2 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n I.\\n Jeff Faludi became a licensed lawyer in 1998, and he practiced law for\\nsixteen years until he allowed his license to lapse. Around the same time, one\\nof his former colleagues offered him a consulting position at a newly-formed oil\\nand gas services company, U.S. Shale Solutions, L.L.C. Faludi accepted the\\nposition, and the parties signed an “Independent Contractor Master\\nConsulting Services Agreement” in November 2014.\\n Under the agreement, Faludi agreed to work for U.S. Shale for “an\\nindefinite period of time” at a rate of $1,000 per day for every day he worked\\nin Houston and $1,350 per day for every day he worked outside of Houston.\\nThe agreement required Faludi to submit invoices to U.S. Shale for payment\\ntwice a month. The agreement also contained a non-compete clause\\nprohibiting Faludi from working for U.S. Shale’s competitors while the\\nagreement was in effect and for one year after its termination.\\n During the approximately sixteen months that Faludi worked for U.S.\\nShale, he submitted invoices to U.S. Shale once or twice a month. Although\\nhis day rate applied regardless of how many hours he worked, he often billed\\nU.S. Shale for less than the day rate when he did not work a full day. Faludi\\ntestified that he did this voluntarily, and U.S. Shale paid the requested\\namounts without asking why Faludi had billed for less than his day rate. Even\\nwith these prorated invoices, Faludi was paid at least $1,000 for every week in\\nwhich he performed work for U.S. Shale, and his annual compensation was\\napproximately $260,000.\\n Faludi left U.S. Shale in March 2016 after an internal reorganization.\\nShortly thereafter, he filed this lawsuit against the company for unpaid\\novertime wages he claimed he was owed under the FLSA. U.S. Shale sought\\nsummary judgment in the district court, arguing that Faludi was an\\nindependent contractor and thus not subject to the FLSA, or alternatively that\\n 2\\n\\n Case: 17-20808 Document: 00515087619 Page: 3 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\nhe was an exempt employee under either the “practice of law” exemption or the\\n“highly compensated employee” exemption to the FLSA. Faludi also sought a\\npartial summary judgment on the ground that he was an employee under the\\nFLSA and did not fall under any exemption.\\n The district court determined that genuine issues of material fact existed\\nas to whether Faludi was an employee or an independent contractor and\\nwhether he fell within the FLSA’s practice of law exemption. However, the\\ndistrict court granted U.S. Shale’s summary judgment motion because it found\\nthat Faludi was exempt as a matter of law under the highly compensated\\nemployee exemption to the FLSA. Although U.S. Shale was the prevailing\\nparty, the district court did not award U.S. Shale costs, nor did it explain why\\nit declined to do so. Faludi appeals the adverse summary judgment, and U.S.\\nShale cross-appeals on the issue of costs.\\n II.\\n We review a district court’s grant of summary judgment de novo.\\nJohnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014).\\nWhere the parties filed cross-motions for summary judgment, “we review each\\nparty’s motion independently, viewing the evidence and inferences in the light\\nmost favorable to the nonmoving party.” Parrish v. Premier Directional\\nDrilling, L.P., 917 F.3d 369, 380 (5th Cir. 2019) (quoting Duval v. N. Assurance\\nCo. of Am., 722 F.3d 300, 303 (5th Cir. 2013)). Summary judgment is\\nappropriate when “the movant shows that there is no genuine dispute as to\\nany material fact and the movant is entitled to judgment as a matter of law.”\\nFed. R. Civ. P. 56(a). We review a district court’s award of costs for an abuse\\nof discretion. Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th\\nCir. 2010).\\n\\n\\n\\n\\n 3\\n\\n Case: 17-20808 Document: 00515087619 Page: 4 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n III.\\n Under the FLSA, an employer must pay overtime compensation to its\\nnon-exempt employees who work more than forty hours a week. Cleveland v.\\nCity of Elmendorf, 388 F.3d 522, 526 (5th Cir. 2004). In contrast, independent\\ncontractors are not entitled to overtime under the FLSA. See 29 U.S.C.\\n§ 207(a)(1) (“[N]o employer shall employ any of his employees . . . for a\\nworkweek longer than forty hours unless such employee receives [overtime]\\ncompensation[.]” (emphasis added)); Parrish, 917 F.3d at 379 (explaining that\\nto make a prima facie case for unpaid overtime, a plaintiff must prove, inter\\nalia, that “there existed an employer-employee relationship during the unpaid\\novertime periods claimed”). In addition, the FLSA describes various types of\\nexempt employees who are excluded from the overtime requirement. See 29\\nU.S.C. §§ 207, 213. Relevant here, “the FLSA excludes from this requirement\\nthose employees working in a bona fide executive, administrative or\\nprofessional capacity.” Lott v. Howard Wilson Chrysler-Plymouth, Inc., 203\\nF.3d 326, 331 (5th Cir. 2000) (citing 29 U.S.C. § 213(a)(1)).\\n Faludi argues on appeal that he was an employee and that no FLSA\\nexemption applied to him, so U.S. Shale was required to pay him overtime\\nunder the statute. U.S. Shale counters that Faludi was either an independent\\ncontractor or, in the alternative, an exempt employee under the highly\\ncompensated employee and practice of law exemptions to the FLSA—both of\\nwhich are regulatory expansions on the “bona fide executive, administrative,\\nor professional” exemption in 29 U.S.C. § 213(a)(1). See 29 C.F.R. § 541.601\\n(highly compensated employee exemption); 29 C.F.R. § 541.304(a)(1) (practice\\nof law exemption). We agree with the conclusion reached by the district court:\\nFaludi was exempt from the FLSA as a highly compensated employee and was\\ntherefore not entitled to overtime as a matter of law.\\n\\n\\n 4\\n\\n Case: 17-20808 Document: 00515087619 Page: 5 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n “[T]he ultimate decision whether [an] employee is exempt from the\\nFLSA’s overtime compensation provisions is a question of law.” Lott, 203 F.3d\\nat 331. The employer has the burden of establishing that an exemption applies\\nby a preponderance of the evidence. Meza v. Intelligent Mexican Mktg., Inc.,\\n720 F.3d 577, 581 (5th Cir. 2013). Under the Supreme Court’s decision in\\nEncino Motorcars, we must give FLSA exemptions a “fair reading” rather than\\nnarrowly construing them against the employer. Encino Motorcars, LLC v.\\nNavarro, 138 S. Ct. 1134, 1142 (2018); see also Carley v. Crest Pumping Techs.,\\nL.L.C., 890 F.3d 575, 579 (5th Cir. 2018).\\n Under the version of the highly compensated employee exemption in\\neffect when Faludi worked for U.S. Shale, an employee is exempt from the\\nFLSA’s overtime requirements if (1) he receives “total annual compensation of\\nat least $100,000”; and (2) he “customarily and regularly performs any one or\\nmore of the exempt duties or responsibilities of an executive, administrative or\\nprofessional employee[.]” Highly Compensated Employees, 69 Fed. Reg.\\n22,122, 22,269 (April 23, 2004) (current version at 29 C.F.R. § 541.601(a)). The\\nemployee also “must be compensated on a salary basis at a rate of not less than\\n$455 per week[.]” 29 C.F.R. § 541.600(a). The parties agree that Faludi\\nreceived at least $100,000 in annual compensation and that he performed the\\nduties of an executive, administrative, or professional employee under the\\nregulation. Thus, the only remaining issue is whether Faludi was\\ncompensated on a “salary basis.” In relevant part, the regulations provide the\\nfollowing with regard to the salary basis requirement:\\n An employee will be considered to be paid on a “salary basis”\\n within the meaning of these regulations if the employee regularly\\n receives each pay period on a weekly, or less frequent basis, a\\n predetermined amount constituting all or part of the employee’s\\n compensation, which amount is not subject to reduction because of\\n variations in the quality or quantity of the work performed. . . .\\n [A]n exempt employee must receive the full salary for any week in\\n 5\\n\\n Case: 17-20808 Document: 00515087619 Page: 6 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n which the employee performs any work without regard to the\\n number of days or hours worked. Exempt employees need not be\\n paid for any workweek in which they perform no work.\\n\\n29 C.F.R. § 541.602(a).\\n Faludi contends that his day rate of $1,000 (or $1,350 for work outside\\nof Houston) did not satisfy the salary basis requirement because it was not\\ncalculated “on a weekly, or less frequent basis.” 29 C.F.R. § 541.602(a). U.S.\\nShale responds that Faludi was nonetheless compensated on a salary basis\\nbecause his day rate guaranteed him $1,000 for every day that he worked, so\\nhe would receive more than the minimum of $455 per week for any week in\\nwhich he performed work. The text of the regulation favors U.S. Shale.\\n Faludi’s $1,000 day rate plainly constituted “a rate of not less than $455\\nper week” under 29 C.F.R. § 541.600(a): If Faludi worked for even one hour in\\na given week, he was guaranteed $1,000, which exceeds the regulatory\\nminimum of $455. And although Faludi contends that 29 C.F.R. § 541.602(a)\\nrequired his compensation to be calculated “on a weekly, or less frequent\\nbasis,” the text of the regulation only provides that Faludi must have\\n“regularly receive[d] each pay period on a weekly, or less frequent basis, a\\npredetermined amount[.]” But see Hughes v. Gulf Interstate Field Servs., Inc.,\\n878 F.3d 183, 189 (6th Cir. 2017) (indicating without analysis that 29 C.F.R.\\n§ 541.602(a) contemplates that an employee’s salary will be “calculated on a\\nweekly, or less frequent basis” (internal quotation marks omitted)). Faludi’s\\nindependent contractor agreement set a predetermined amount of\\ncompensation he was to receive—$1,000 per day—and provided for the\\nsubmission and payment of invoices on a less-frequent-than-weekly basis—\\ntwice a month. Thus, Faludi regularly received a predetermined amount of\\ncompensation on a weekly or less frequent basis in accordance with 29 C.F.R.\\n§ 541.602(a).\\n\\n 6\\n\\n Case: 17-20808 Document: 00515087619 Page: 7 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n Faludi also argues that his compensation did not meet the salary basis\\nrequirement because it was “subject to reduction because of variations in\\nthe . . . quantity of the work performed.” 29 C.F.R. § 541.602(a). Specifically,\\nFaludi emphasizes that he often did not bill U.S. Shale for his full day rate\\nwhen he worked less than a day and that U.S. Shale approved and paid these\\nprorated invoices. We reject this argument. Faludi’s voluntary reductions to\\nhis own compensation did not render it “subject to reduction” under the\\nregulation. To hold otherwise would permit employees to preclude reliance on\\nthe FLSA’s “bona fide executive, administrative, or professional” exemption by\\nintentionally reducing their own pay.\\n Finally, Faludi suggests that the requirements in 29 C.F.R. § 541.604(b)\\nprevented him from qualifying as a highly compensated employee. That\\nregulation stipulates that:\\n An exempt employee’s earnings may be computed on an hourly, a\\n daily or a shift basis, without losing the exemption or violating the\\n salary basis requirement, if the employment arrangement also\\n includes a guarantee of at least the minimum weekly required\\n amount paid on a salary basis regardless of the number of hours,\\n days or shifts worked, and a reasonable relationship exists\\n between the guaranteed amount and the amount actually earned.\\n The reasonable relationship test will be met if the weekly\\n guarantee is roughly equivalent to the employee’s usual earnings\\n at the assigned hourly, daily or shift rate for the employee’s normal\\n scheduled workweek.\\n\\n29 C.F.R. § 541.604(b). Faludi points out that no reasonable relationship\\nexisted between his $1,000 day rate and the amount he actually earned each\\nweek, which was often four or five times his day rate. Faludi’s argument once\\nagain misses the mark: Whether his compensation satisfied the reasonable\\nrelationship test is irrelevant because 29 C.F.R. § 541.604(b) does not apply to\\nemployees who meet the requirements of the highly compensated employee\\nexemption set out in 29 C.F.R. §§ 541.600, 541.601, and 541.602. Anani v. CVS\\n 7\\n\\n Case: 17-20808 Document: 00515087619 Page: 8 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\nRX Servs., Inc., 730 F.3d 146, 149 (2d Cir. 2013); Litz v. Saint Consulting Grp.,\\nInc., 772 F.3d 1, 5 (1st Cir. 2014). Because Faludi met these requirements—\\nspecifically, because his $1,000 day rate guaranteed him at least $455 per week\\nand he regularly received that predetermined amount on a weekly or less\\nfrequent basis—he was exempt from the FLSA’s overtime requirements as a\\nhighly compensated employee.\\n We therefore hold that the district court correctly granted summary\\njudgment on the ground that Faludi fit within the highly compensated\\nemployee exemption to the FLSA. As a result, we need not determine whether\\nhe was an employee or independent contractor or whether he also fit within\\nthe practice of law exemption.\\n IV.\\n We next turn to the question of whether the district court erred in\\ndeclining to award U.S. Shale costs as the prevailing party. U.S. Shale\\ncontends that it was entitled to costs under Federal Rule of Civil Procedure\\n54(d) because “[t]he FLSA does not preclude an award of costs to a prevailing\\ndefendant.” As a result, U.S. Shale urges us to reverse and remand with an\\ninstruction to the district court to award U.S. Shale costs on remand. Faludi\\nconcedes that we must reverse and remand on the costs issue, but he asks us\\nto remand for the district court to consider whether U.S. Shale is entitled to\\ncosts, and if the district court again declines to award costs to U.S. Shale, to\\nexplain its reasons for doing so. We agree with Faludi.\\n Rule 54(d) provides that “[u]nless a federal statute, these rules, or a court\\norder provides otherwise, costs—other than attorney’s fees—should be allowed\\nto the prevailing party.” Fed. R. Civ. P. 54(d). Under the FLSA, “[t]he court . . .\\nshall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow\\na reasonable attorney’s fee to be paid by the defendant, and costs of the action.”\\n29 U.S.C. § 216(b) (emphasis added). As U.S. Shale observes and Faludi\\n 8\\n\\n Case: 17-20808 Document: 00515087619 Page: 9 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\nconcedes, this provision in the FLSA does not preclude an award of costs to a\\nprevailing defendant. And we have explained that “a court ‘may neither deny\\nnor reduce a prevailing party’s request for cost[s] without first articulating\\nsome good reason for doing so.’” Pacheco v. Mineta, 448 F.3d 783, 794 (5th Cir.\\n2006) (quoting Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)). While\\nthe district court’s decision not to award costs to U.S. Shale may have been\\nwell-reasoned, its final judgment does not reveal that reasoning. Accordingly,\\nwe must vacate the award of costs and remand the issue to the district court.\\nOn remand, the district court should award U.S. Shale its costs or, in the\\nalternative, provide its reasons for declining to do so. See id. at 795 (“[W]e\\nvacate the award of costs and remand for a re-determination of whether (or to\\nwhat extent) costs should be awarded to the prevailing party and, if not, the\\nreasons for that denial.”).\\n V.\\n The district court properly concluded that Faludi was not entitled to\\novertime compensation under the FLSA because he was exempt as a highly\\ncompensated employee. We therefore AFFIRM summary judgment in favor of\\nU.S. Shale. We VACATE the district court’s award of costs and REMAND that\\nissue, directing the district court to either award costs to U.S. Shale or state\\nits reasons for declining to do so.\\n\\n\\n\\n\\n 9\\n\\n Case: 17-20808 Document: 00515087619 Page: 10 Date Filed: 08/22/2019\\n\\n\\n\\n No. 17-20808\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3690,"cells":{"id":{"kind":"number","value":4655529,"string":"4,655,529"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Wayne Klocke v. University of TX at Arlington"},"decision_date":{"kind":"string","value":"2019-08-23"},"docket_number":{"kind":"string","value":"17-11320"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JONES, BARKSDALE, and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"EDITH H. JONES, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-11320 Document: 00515088714 Page: 1 Date Filed: 08/23/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-11320 FILED\\n August 23, 2019\\n Lyle W. Cayce\\nWAYNE M. KLOCKE, Clerk\\nIndependent Administrator of\\nthe Estate of Thomas Klocke,\\n\\n Plaintiff - Appellant\\nv.\\n\\nNICHOLAS MATTHEW WATSON,\\n\\n Defendant - Appellee\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore JONES, BARKSDALE, and WILLETT, Circuit Judges.\\nEDITH H. JONES, Circuit Judge:\\n The critical issue in this appeal is whether, or to what extent, the Texas\\nCitizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code\\n§§ 27.001- .011, which is a type of anti-SLAPP statute, 1 applies in a diversity\\nsuit in federal court. The district court held it applicable as a “substantive”\\nmatter and accordingly granted appellee Nicholas Watson’s motion to dismiss\\nand awarded attorney’s fees pursuant to the TCPA. Resolving an issue that\\nhas brewed for several years in this circuit, we conclude that the TCPA does\\n\\n\\n\\n\\n 1 SLAPP is an acronym for Strategic Litigation Against Public Participation.\\n\\f Case: 17-11320 Document: 00515088714 Page: 2 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nnot apply to diversity cases in federal court and therefore REVERSE and\\nREMAND for further proceedings.\\n BACKGROUND\\n Appellant Wayne Klocke’s son, Thomas, was a student at the University\\nof Texas at Arlington who tragically committed suicide in June 2016 after\\nbeing refused permission to graduate. Thomas was allegedly the victim of\\nappellee Watson’s false charge of homophobic harassment, for which the\\nUniversity administered its severe punishment after allegedly violating\\nTitle IX procedures designed to achieve due process.\\n As administrator of his son’s estate, Klocke sued the University for Title\\nIX violations and Watson for common law defamation and defamation per se.\\nWatson moved to dismiss the defamation claims under the TCPA.\\n Klocke responded in a document titled “Plaintiff’s Objection to\\nDefendant Watson’s Motion to Dismiss; in the alternative, Motion for\\nProtective Order and Request for Procedural Clarification from the Court and\\nBrief in Support.” The response asserted that the TCPA is inapplicable in\\nfederal court, but it did not substantively address Watson’s arguments based\\non the requirements of the TCPA. The objection noted that the Fifth Circuit\\nhad not explicitly held whether the TCPA applied in federal court and asked\\nthe district court to clarify “whether and how it will entertain Defendant\\nWatson’s TCPA motion to dismiss in this case . . . and what procedures and\\ndeadlines will apply.” Klocke also requested the district court to clarify\\nwhether he must file a reply pursuant to the Northern District of Texas’s Local\\nRules or at the motion hearing prescribed in the TCPA. 2 Alternatively, Klocke\\nmoved for discovery and further time to respond substantively to the TCPA\\nmotion if the court held that the TCPA was applicable.\\n\\n\\n 2 The TCPA mandates a motion hearing. Tex. Civ. Prac. & Rem. Code § 27.004(a)–(c).\\n 2\\n\\f Case: 17-11320 Document: 00515088714 Page: 3 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\n The district court overruled the objection to applying the TCPA and\\nconcluded that Klocke waived any “substantive” TCPA arguments by failing to\\nmake them within twenty-one days pursuant to Local Rule 7.1(e). The district\\ncourt denied his other requests and accordingly granted Watson’s motion to\\ndismiss. Later, the court awarded Watson $25,000 in attorney’s fees, $3,000\\nin expenses, and a $1.00 sanction, all pursuant to the TCPA. The district court\\nentered a “Final Judgment as to Certain Party.” 3 Klocke timely appealed. 4\\n STANDARD OF REVIEW\\n This court reviews de novo a decision applying state law in federal court.\\nSee Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 395 (5th Cir. 2003). The\\ncourt reviews “the district court’s administrative handling of a case, including\\nits enforcement of the local rules and its own scheduling orders, for abuse of\\ndiscretion.” Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th Cir. 2002).\\nAbuse of discretion is also the test on appeal of a “court’s decision to limit\\ndiscovery….” Crosby v. La. Health Serv. and Indem. Co., 647 F.3d 258, 261\\n(5th Cir. 2011).\\n DISCUSSION\\n On appeal, Klocke principally contends that the TCPA’s essentially\\n“procedural” provisions conflict with federal procedural rules and therefore do\\nnot apply in federal court. He also argues that the district court erred by\\nenforcing its local rules and not allowing him to respond to Watson’s TCPA\\n\\n 3 The court denied the University’s Rule 12(b)(6) motion to dismiss, and the case\\nagainst that defendant remains pending in the district court. We nevertheless have appellate\\njurisdiction over this appeal as to Watson’s dismissal pursuant to Federal Rule of Civil\\nProcedure 54(b). The court’s dismissal order “As to Certain Party” sufficiently explains that\\nthere was “no just reason for delay” albeit without explicit reference to the Rule itself. See\\nStewart v. Miss. Transp. Comm’n, 586 F.3d 321, 327 (5th Cir. 2009).\\n\\n 4 The court also overruled Klocke’s motion for reconsideration, which sought to offer\\nevidence in support of the defamation of his son by Watson. The court, however, reiterated\\nthe “substantive” applicability of the TCPA in federal court and rejected Klocke’s evidence,\\ninter alia, as untimely.\\n 3\\n\\f Case: 17-11320 Document: 00515088714 Page: 4 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nmotion and by denying him an opportunity to move for discovery under the\\nTCPA.\\n A. Applying the TCPA in federal court?\\n The TCPA is an anti-SLAPP (Strategic Litigation Against Public\\nParticipation) statute designed to “encourage and safeguard the constitutional\\nrights of persons to petition, speak freely, associate freely, and otherwise\\nparticipate in government to the maximum extent permitted by law.” Tex. Civ.\\nPrac. & Rem. Code § 27.002. Other states have passed similar anti-SLAPP\\nstatutes because they “have expressed concerns over the use (or abuse) of\\nlawsuits that have the purpose or effect of chilling the exercise of First\\nAmendment rights.” Henry v. Lake Charles American Press, L.L.C.,\\n566 F.3d 164, 169 (5th Cir. 2009). In Henry, this court held that Louisiana’s\\n“nominally procedural” anti-SLAPP statute applies in federal court pursuant\\nto the Erie doctrine. Id. at 168–69; see LA. CODE CIV. PROC. art. 971. This court\\nhas, however, passed several times on deciding whether, or to what extent, the\\nTCPA applies in federal court. Cuba v. Pylant, 814 F.3d 701, 706 & n.6\\n(5th Cir. 2016); but see id. at 719 (Graves, J., dissenting) (arguing that the\\nTCPA cannot apply because the state statute conflicts with the Federal Rules);\\nBlock v. Tanenhaus, 867 F.3d 585, 589 n.2 (5th Cir. 2017) (collecting cases). In\\nthis appeal, we are required to confront the question directly. And we\\ngenerally agree with Judge Graves’s conclusion.\\n Codified in the Texas Civil Practice and Remedies Code, the TCPA\\neffectuates a speedy process for resolving litigation that may impinge on a\\nparty’s exercise of the rights to free speech, petition, or association. See Tex.\\nCiv. Prac. & Rem. Code § 27.003(a). Under the statutory burden-shifting\\nframework, if a movant for TCPA relief shows “by a preponderance of the\\nevidence” that the action is based on the movant’s exercise of the listed rights,\\na court must dismiss the case. Id. at § 27.005(b)(1)–(3). But if the non-movant\\n 4\\n\\f Case: 17-11320 Document: 00515088714 Page: 5 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\n“establishes by clear and specific evidence a prima facie case for each element\\nof the claim in question,” the court may not dismiss. Id. at § 27.005(c). The\\nmovant then may show “by a preponderance of the evidence each essential\\nelement of a valid defense” to the claim and be entitled to dismissal.\\nId. at § 27.005(d). Pleadings and affidavits are permissible for evaluating the\\ndismissal motion and responses. Id. at § 27.006(a). Discovery is generally\\nstayed while the motion is pending, id. at § 27.003(c), subject to limited\\nrelevant discovery for good cause shown. Id. at § 27.006(b). Specific time limits\\nare prescribed for the filing of the motion, holding a hearing, and ruling on the\\nmotion. Id. at § 27.004(a)–(c). Mandatory attorney’s fees and costs are\\nawarded to the movant if the case is dismissed, id. at § 27.009(a)(1), and\\nsanctions may be imposed to deter the party who brought the legal action.\\nId. at § 27.009(a)(2).\\n The Erie line of authorities holds that substantive state law must be\\napplied in federal courts in diversity cases like this one, but state procedural\\nlaw yields to the applicable Federal Rules. Hanna v. Plumer,\\n380 U.S. 460, 465, 85 S. Ct. 1136, 1141 (1965). Determining whether the state\\nlaw is procedural or substantive may prove elusive. See Cuba,\\n814 F.3d at 718– 19 (Graves, J., dissenting). Succinctly put, however,\\n“[a] federal court exercising diversity jurisdiction should not apply a state law\\nor rule if (1) a Federal Rule of Civil Procedure ‘answer[s] the same question’ as\\nthe state law or rule and (2) the Federal Rule does not violate the Rules\\nEnabling Act.” Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333\\n(D.C. Cir. 2015) (Kavanaugh, J.) (quoting Shady Grove Orthopedic Assocs.,\\nP.A. v. Allstate Ins. Co., 559 U.S. 393, 398–99, 130 S. Ct. 1431, 1437 (2010)\\n(majority op.)). Courts do not “wade into Erie’s murky waters unless the\\nfederal rule is inapplicable or invalid.” Shady Grove,\\n559 U.S. at 398, 130 S. Ct. at 1437.\\n 5\\n\\f Case: 17-11320 Document: 00515088714 Page: 6 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\n Relying on Abbas and like decisions, Klocke argues that the TCPA’s\\nburden-shifting framework and heightened evidentiary standards for pretrial\\ndismissal collide with and “answer the same question[s]” as Federal Rules of\\nCivil Procedure 12 and 56. See also Carbone v. Cable News Network, Inc.,\\n910 F.3d 1345, 1352 (11th Cir. 2018) (Pryor, J.); Makaeff v. Trump Univ., LLC,\\n715 F.3d 254, 275 (9th Cir. 2013) (Kozinski, C.J., concurring). We find most\\npersuasive the reasoning of the D.C. Circuit that Rules 12 and 56, which\\ngovern dismissal and summary judgment motions, respectively, answer the\\nsame question as the anti-SLAPP statute: what are the circumstances under\\nwhich a court must dismiss a case before trial? Abbas, 783 F.3d at 1333–34.\\nAccording to the D.C. Circuit, the Federal Rules and the anti-SLAPP statute\\nconflict because, unlike the former procedures, the D.C. anti-SLAPP provisions\\nrequire the plaintiff to show “a likelihood of success on the merits.” Id. at 1334.\\n“The D.C. Anti-SLAPP Act, in other words, conflicts with the Federal Rules by\\nsetting up an additional hurdle a plaintiff must jump over to get to trial.” Id.;\\nbut see Godin v. Schencks, 629 F.3d 79, 86–87 (1st Cir. 2010) (holding Maine’s\\nanti-SLAPP law does not conflict with federal rules, because “neither Fed. R.\\nCiv. P. 12(b)(6) nor Fed. R. Civ. P. 56, on a straightforward reading of its\\nlanguage, was meant to control the particular issues under [Maine’s anti-\\nSLAPP statute] . . . .”); see also Adelson v. Harris, 774 F.3d 803, 809 (2d Cir.\\n2014) (approving use of Nevada anti-SLAPP law in federal court in part\\nbecause “immunity” and fee-shifting statutes are substantive under Erie);\\nUnited States ex rel. Newsham v. Lockheed Missiles & Space Co., Inc.,\\n190 F.3d 963, 973 (9th Cir. 1999).\\n The court in Abbas was heavily influenced by the Supreme Court’s\\ndecision in Shady Grove, where a New York statute largely copied the\\nrequirements for class certification under Rule 23 but added that a suit “to\\nrecover a penalty, or minimum measure of recovery created or imposed by\\n 6\\n\\f Case: 17-11320 Document: 00515088714 Page: 7 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nstatute may not be maintained as a class action.” Shady Grove,\\n559 U.S. at 396 n.1, 130 S. Ct. at 1436 n.1. Holding the state law\\nunenforceable in federal court, the Supreme Court decided that Rule 23\\n“creates a categorical rule entitling a plaintiff whose suit meets the specified\\ncriteria to pursue his claim as a class action.” Id. at 398, 130 S. Ct. at 1437.\\nAfter all, “Rule 23 permits all class actions that meet its requirements, and a\\nState cannot limit that permission by structuring one part of its statute to\\ntrack Rule 23 and enacting another part that imposes additional\\nrequirements.” Id. at 401, 130 S. Ct. at 1439. In other words, both statutes\\nanswered the same question, “whether a class action may proceed for a given\\nsuit,” id., but the state rule imposed additional requirements that Rule 23 did\\nnot.\\n In sum, Shady Grove and Abbas hold that a state rule conflicts with a\\nfederal procedural rule when it imposes additional procedural requirements\\nnot found in the federal rules. The rules “answer the same question” when\\neach specifies requirements for a case to proceed at the same stage of litigation.\\n Because the TCPA’s burden-shifting framework imposes additional\\nrequirements beyond those found in Rules 12 and 56 and answers the same\\nquestion as those rules, the state law cannot apply in federal court. Under\\nRule 12(b)(6), a federal court may dismiss a case for failure to state a claim\\nupon which relief may be granted if, accepting all well-pleaded factual\\nallegations as true, the complaint does not state a plausible claim for relief.\\nAshcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S. Ct. 1937, 1949–50 (2009). This\\nis not an insuperable pleading barrier, and it requires no evidentiary support:\\n“a well-pleaded complaint may proceed even if it strikes a savvy judge that\\nactual proof of those facts is improbable, and that a recovery is very remote\\nand unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556,\\n127 S. Ct. 1955, 1965 (2007) (quotation marks omitted). Rule 56 states that a\\n 7\\n\\f Case: 17-11320 Document: 00515088714 Page: 8 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\ncourt “shall grant summary judgment if the movant shows that there is no\\ngenuine dispute as to any material fact and the movant is entitled to judgment\\nas a matter of law.” Fed. R. Civ. P. 56(a). The party resisting summary\\njudgment succeeds simply by showing that a material fact issue exists and\\nrequires trial by a factfinder. In ruling on a summary judgment motion, “the\\njudge’s function is not himself to weigh the evidence and determine the truth\\nof the matter but to determine whether there is a genuine issue for trial.”\\nAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511\\n(1986). Summary judgment motions are normally resolved after the discovery\\nprocess has concluded or sufficiently progressed.\\n In contrast to the federal procedural requirements, the TCPA imposes\\nadditional requirements that demand judicial weighing of evidence. Thus,\\nconfronted with a motion to dismiss under the TCPA, the court must determine\\n“by a preponderance of the evidence” whether the action relates to a party’s\\nexercise of First Amendment rights. Tex. Civ. Prac. & Rem. Code\\n§ 27.005(b)(1)-(3). The court must also determine whether there is “clear and\\nspecific evidence” that a plaintiff can meet each element of his claim.\\nId. at § 27.005(c). “Clear and specific evidence” must be, inter alia,\\n“unambiguous, sure, or free from doubt.” In re Lipsky, 460 S.W.3d 579, 590\\n(Tex. 2015). The standard, which lies somewhere between the state’s pleading\\nbaseline and the standard necessary to prevail at trial, id. at 591, in any event\\nexceeds the plaintiff’s Rule 56 burden to defeat summary judgment. Finally,\\nthe court must determine “by a preponderance of the evidence” if the defendant\\ncan establish a valid defense to the plaintiff’s claim. Tex. Civ. Prac. & Rem.\\nCode § 27.005(d). All these determinations are to be made while discovery\\nnormally available in federal court is circumscribed by the TCPA, except for\\n“good cause.” Id. at §§ 27.003(c), 27.006(b). Because the TCPA imposes\\n\\n\\n 8\\n\\f Case: 17-11320 Document: 00515088714 Page: 9 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nevidentiary weighing requirements not found in the Federal Rules, and\\noperates largely without pre-decisional discovery, it conflicts with those rules. 5\\n Watson advocates the reasoning of the First Circuit, which held that the\\nMaine anti-SLAPP statute’s requirement that a plaintiff show probable\\nsuccess “does not seek to displace the Federal Rules or have Rules 12(b)(6) and\\n56 cease to function.” Godin, 629 F.3d at 88. To be sure, nothing about the\\nTCPA suggests that a party could not file a Rule 12 or 56 motion in federal\\ncourt alongside a TCPA motion to dismiss. The TCPA states that it “does not\\nabrogate or lessen any other defense, remedy, immunity, or privilege available\\nunder other constitutional, statutory, case, or common law or rule provisions.”\\nTex. Civ. Prac. & Rem. Code § 27.011(a). Watson’s reasoning boils down to the\\nidea that the federal rules impose only minimum procedural requirements and\\nstate rules may build upon them. “But the test of whether a conflict between\\nthe Federal Rules and a state statute exists is not whether it is logically\\npossible for a court to comply with the requirements of both, but whether the\\nFederal Rules in question are ‘sufficiently broad to control the issue before the\\ncourt.’” Carbone, 910 F.3d at 1355. Further, the Federal Rules impose\\ncomprehensive, not minimum, pleading requirements. Rules 8, 12, and 56\\n“provide a comprehensive framework governing pretrial dismissal and\\njudgment.” Id. at 1351. These rules “contemplate that a claim will be assessed\\non the pleadings alone or under the summary judgment standard; there is no\\nroom for any other device for determining whether a valid claim supported by\\nsufficient evidence [will] avoid pretrial dismissal.” Id. Watson’s reasoning also\\n\\n\\n\\n 5 This analysis does not even reach the time constraints imposed by the TCPA for\\nmotions and rulings on dismissals, analogies to which are found nowhere in the Federal\\nRules. Although this court analyzed a timeliness requirement in Cuba, we did so because no\\nparty had challenged whether such provisions of the TCPA run afoul of Erie and Shady\\nGrove. Cuba, 814 F.3d at 706 n.6.\\n\\n 9\\n\\f Case: 17-11320 Document: 00515088714 Page: 10 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\ncontravenes Shady Grove’s conclusion that states may not superimpose\\nadditional requirements on the Federal Rules where the provisions “answer\\nthe same question.” 6\\n The practical conflict caused by application of the TCPA in federal court\\nis exemplified in this case, where appellee Watson sought dismissal predicated\\nsolely on the TCPA without alluding to Rule 12(b)(6). Klocke was\\nunderstandably thrown off balance by this selective choice of procedure, but he\\nwas additionally waylaid when the court applied its own Local Rule deadline\\nfor his response to the motion while declining to explain how the TCPA,\\nincluding its limits on discovery, would apply in the case. This court also\\ngrappled with overlap between the TCPA and the Federal Rules in Cuba,\\nwhich had to figure out the impact of the TCPA’s denial of a motion to dismiss\\nby operation of law, Tex. Civ. Prac. & Rem. Code § 27.008(a), on the timeliness\\nof an appeal to this court. And in Henry, to which we turn momentarily,\\nwhether to grant an interlocutory appeal of the denial of a motion to dismiss\\nproved vexing.\\n Describing the rights afforded certain litigants under the TCPA as\\n“substantive” fails to address the uncertainty caused by the state statute’s\\nongoing conflict with federal rules. We do not disregard the statute’s expressed\\npurpose to safeguard the exercise of protected First Amendment rights by\\nexpediting such cases to conclusion. But Judge Kozinski’s summary of the\\n\\n\\n\\n\\n 6 Klocke also alleges that the TCPA’s attorney’s fees and sanctions provisions conflict\\nwith Rules 12(b)(6) and 56. But we need not discuss that issue in detail because those\\nprovisions are not applicable apart from the burden-shifting early dismissal framework. See\\nTex. Civ. Prac. & Rem. Code § 27.009(a) (“If the court orders dismissal of a legal action under\\nthis chapter, the court shall award to the moving party” attorney’s fees and possible\\nsanctions.) (emphasis added). Suffice to say that because the TCPA does not apply in federal\\ncourt, the district court erred by awarding fees and sanctions pursuant to it.\\n\\n 10\\n\\f Case: 17-11320 Document: 00515088714 Page: 11 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\noperation of a California anti-SLAPP statute pertains equally to the TCPA: the\\nstatute\\n creates no substantive rights; it merely provides a procedural\\n mechanism for vindicating existing rights. The language of the\\n statute is procedural. . . . The statute deals only with the conduct\\n of the lawsuit; it creates no rights independent of existing\\n litigation; and its only purpose is the swift termination of certain\\n lawsuits the legislators believed to be unduly burdensome.\\n\\nMakaeff, 715 F.3d at 273 (Kozinski, C.J., concurring) (citation omitted).\\n Because a conflict exists, we must also decide, although there is really\\nno doubt, whether Rules 12 and 56 are “a valid exercise of Congress’s\\nrulemaking authority” under the Rules Enabling Act. All Plaintiffs v. All\\nDefendants, 645 F.3d 329, 333 (5th Cir. 2011); see Burlington N. R.R. Co. v.\\nWoods, 480 U.S. 1, 5, 107 S. Ct. 967, 969–70 (1987). These federal rules\\nrepresent such a valid exercise. “So far, the Supreme Court has rejected every\\nchallenge to the Federal Rules that it has considered under the Rules Enabling\\nAct.” Abbas, 783 F.3d at 1336. As Sibbach explains, “any federal rule that\\n‘really regulates procedure’ is valid under the Rules Enabling Act.” Id. at 1337\\n(quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14, 61 S. Ct. 422, 426 (1941)).\\nRules 12 and 56\\n are valid under the Rules Enabling Act because they define the\\n procedures for determining whether a claim is alleged in a\\n sufficient manner in a complaint and whether there is a genuine\\n dispute of material fact sufficient to warrant a trial. These Rules\\n affect[] only the process of enforcing litigants’ rights and not the\\n rights themselves, and thus really regulate procedure.\\n\\nCarbone, 910 F.3d at 1357 (quotation marks and internal citation omitted)\\n(alteration in original).\\n Watson’s most important potential support derives from the one case in\\nwhich this court applied the burden-shifting Louisiana anti-SLAPP statute,\\n\\n 11\\n\\f Case: 17-11320 Document: 00515088714 Page: 12 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nLA. CODE CIV. PROC. art. 971, and dismissed a case because the plaintiff had not\\nmet its “high burden” of rebutting the motion by showing “a probability of\\nsuccess” on its claim. Henry, 566 F.3d at 169, 182. In Henry, the court stated\\nthat “Louisiana law, including the nominally-procedural Article 971, governs\\nthis diversity case.” Id. at 168–69. But the court did not discuss the potential\\nconflict between the state law and federal rules, and Henry preceded the\\ndecision in Shady Grove. A series of subsequent decisions in this court has\\npointedly declined to hold Henry controlling on the applicability of the TCPA,\\nalthough none of the Texas anti-SLAPP appeals ultimately turned, as does this\\ncase, on actual application of the TCPA’s shifting burdens.\\n Although this question is not free from doubt, we conclude that Henry is\\nnot binding on this panel under our rule of orderliness. United States v. Boche-\\nPerez, 755 F.3d 327, 334 (5th Cir. 2014) (“[A] panel of the court cannot overturn\\na prior panel decision absent an intervening change in the law . . . .”) (quotation\\nmarks omitted). Henry interprets a different statute, albeit a different version\\nof an anti-SLAPP statute. The two states’ laws differ in that Texas imposes\\nhigher and more complex preliminary burdens on the motion to dismiss\\nprocess 7 and imposes rigorous procedural deadlines. 8 The conflict between the\\nTexas law and the Federal Rules is manifest, while the comparable conflict\\n\\n\\n\\n 7 Texas requires the movant for dismissal to show by a “preponderance of the evidence”\\nthat the lawsuit is based on the movant’s exercise of the right to free speech, petition, or\\nassociation. Tex. Civ. Prac. & Rem. Code § 27.005(b)(1)-(3). Louisiana requires a “prima\\nfacie showing.” Henry, 566 F.3d at 170. Texas requires the non-movant to set out a prima\\nfacie case on each element of its claim by “clear and specific evidence,” and then authorizes\\nrebuttal by a “preponderance of the evidence” on each element of a valid defense to the claim.\\nTex. Civ. Prac. & Rem. Code § 27.005(c)-(d). Louisiana requires the plaintiff to demonstrate\\n“a probability of success on his claim.” LA. CODE CIV. PROC. art. 971(A)(1), (3).\\n\\n 8The motion to dismiss must generally be filed within 60 days of service of process,\\nthe court must generally hold a hearing no later than 60 days following service of the\\ndismissal motion, and the court must generally rule on the motion within 30 days after the\\nhearing. Tex. Civ. Prac. & Rem. Code §§ 27.003(b), 27.004(a)-(b), 27.005(a).\\n 12\\n\\f Case: 17-11320 Document: 00515088714 Page: 13 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nbetween the Federal Rules and Louisiana law is less obvious. See, e.g., Block,\\n815 F.3d at 221 (“[A] non-movant’s burden in opposing an Article 971 motion\\nto strike is the same as that of a non-movant opposing summary judgment\\nunder Rule 56”). In addition, there is no indication in Henry that the court\\nconsidered the potential overlap or conflict between the Louisiana anti-SLAPP\\nprovision and the Federal Rules, nor is it obvious that that case would have\\nbeen decided differently, e.g., on summary judgment under the Federal Rules.\\nAnd of course, the Henry panel did not have the benefit of the Supreme Court’s\\ncompelling decision in Shady Grove. For these reasons, we conclude that this\\npanel is not bound by a non-argued, undecided issue in another case\\ninterpreting another state’s dissimilar statute.\\n B. The district court’s enforcement of the local rules\\n Klocke also asserts that the district court erred by enforcing the\\nNorthern District of Texas’s Local Rules and holding that he missed the\\ndeadline to respond to Watson’s TCPA motion. Because we conclude that the\\nTCPA does not apply in this diversity case in federal court, Klocke’s ostensible\\nwaiver is irrelevant. Klocke expressly preserved his argument that the Fifth\\nCircuit had not explicitly held whether the TCPA applied in federal court. He\\nis now entitled to pursue his case under the Federal Rules unhindered by the\\nTCPA. He is likewise free to pursue discovery apart from the district court’s\\ndenial of discovery under the TCPA.\\n CONCLUSION\\n The district court’s judgment of dismissal is REVERSED, and the case\\nis REMANDED for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4432782/\", \"author_raw\": \"EDITH H. JONES, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JONES"},"judge2":{"kind":"string","value":"BARKSDALE"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JONES\": \", Circuit\", \"BARKSDALE\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4655529/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Wayne Klocke v. University of TX at Arlington\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-11320 Document: 00515088714 Page: 1 Date Filed: 08/23/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 17-11320 FILED\n August 23, 2019\n Lyle W. Cayce\nWAYNE M. KLOCKE, Clerk\nIndependent Administrator of\nthe Estate of Thomas Klocke,\n\n Plaintiff - Appellant\nv.\n\nNICHOLAS MATTHEW WATSON,\n\n Defendant - Appellee\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\nBefore JONES, BARKSDALE, and WILLETT, Circuit Judges.\nEDITH H. JONES, Circuit Judge:\n The critical issue in this appeal is whether, or to what extent, the Texas\nCitizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code\n§§ 27.001- .011, which is a type of anti-SLAPP statute, 1 applies in a diversity\nsuit in federal court. The district court held it applicable as a “substantive”\nmatter and accordingly granted appellee Nicholas Watson’s motion to dismiss\nand awarded attorney’s fees pursuant to the TCPA. Resolving an issue that\nhas brewed for several years in this circuit, we conclude that the TCPA does\n\n\n\n\n 1 SLAPP is an acronym for Strategic Litigation Against Public Participation.\n\f Case: 17-11320 Document: 00515088714 Page: 2 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\nnot apply to diversity cases in federal court and therefore REVERSE and\nREMAND for further proceedings.\n BACKGROUND\n Appellant Wayne Klocke’s son, Thomas, was a student at the University\nof Texas at Arlington who tragically committed suicide in June 2016 after\nbeing refused permission to graduate. Thomas was allegedly the victim of\nappellee Watson’s false charge of homophobic harassment, for which the\nUniversity administered its severe punishment after allegedly violating\nTitle IX procedures designed to achieve due process.\n As administrator of his son’s estate, Klocke sued the University for Title\nIX violations and Watson for common law defamation and defamation per se.\nWatson moved to dismiss the defamation claims under the TCPA.\n Klocke responded in a document titled “Plaintiff’s Objection to\nDefendant Watson’s Motion to Dismiss; in the alternative, Motion for\nProtective Order and Request for Procedural Clarification from the Court and\nBrief in Support.” The response asserted that the TCPA is inapplicable in\nfederal court, but it did not substantively address Watson’s arguments based\non the requirements of the TCPA. The objection noted that the Fifth Circuit\nhad not explicitly held whether the TCPA applied in federal court and asked\nthe district court to clarify “whether and how it will entertain Defendant\nWatson’s TCPA motion to dismiss in this case . . . and what procedures and\ndeadlines will apply.” Klocke also requested the district court to clarify\nwhether he must file a reply pursuant to the Northern District of Texas’s Local\nRules or at the motion hearing prescribed in the TCPA. 2 Alternatively, Klocke\nmoved for discovery and further time to respond substantively to the TCPA\nmotion if the court held that the TCPA was applicable.\n\n\n 2 The TCPA mandates a motion hearing. Tex. Civ. Prac. & Rem. Code § 27.004(a)–(c).\n 2\n\f Case: 17-11320 Document: 00515088714 Page: 3 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\n The district court overruled the objection to applying the TCPA and\nconcluded that Klocke waived any “substantive” TCPA arguments by failing to\nmake them within twenty-one days pursuant to Local Rule 7.1(e). The district\ncourt denied his other requests and accordingly granted Watson’s motion to\ndismiss. Later, the court awarded Watson $25,000 in attorney’s fees, $3,000\nin expenses, and a $1.00 sanction, all pursuant to the TCPA. The district court\nentered a “Final Judgment as to Certain Party.” 3 Klocke timely appealed. 4\n STANDARD OF REVIEW\n This court reviews de novo a decision applying state law in federal court.\nSee Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 395 (5th Cir. 2003). The\ncourt reviews “the district court’s administrative handling of a case, including\nits enforcement of the local rules and its own scheduling orders, for abuse of\ndiscretion.” Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th Cir. 2002).\nAbuse of discretion is also the test on appeal of a “court’s decision to limit\ndiscovery….” Crosby v. La. Health Serv. and Indem. Co., 647 F.3d 258, 261\n(5th Cir. 2011).\n DISCUSSION\n On appeal, Klocke principally contends that the TCPA’s essentially\n“procedural” provisions conflict with federal procedural rules and therefore do\nnot apply in federal court. He also argues that the district court erred by\nenforcing its local rules and not allowing him to respond to Watson’s TCPA\n\n 3 The court denied the University’s Rule 12(b)(6) motion to dismiss, and the case\nagainst that defendant remains pending in the district court. We nevertheless have appellate\njurisdiction over this appeal as to Watson’s dismissal pursuant to Federal Rule of Civil\nProcedure 54(b). The court’s dismissal order “As to Certain Party” sufficiently explains that\nthere was “no just reason for delay” albeit without explicit reference to the Rule itself. See\nStewart v. Miss. Transp. Comm’n, 586 F.3d 321, 327 (5th Cir. 2009).\n\n 4 The court also overruled Klocke’s motion for reconsideration, which sought to offer\nevidence in support of the defamation of his son by Watson. The court, however, reiterated\nthe “substantive” applicability of the TCPA in federal court and rejected Klocke’s evidence,\ninter alia, as untimely.\n 3\n\f Case: 17-11320 Document: 00515088714 Page: 4 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\nmotion and by denying him an opportunity to move for discovery under the\nTCPA.\n A. Applying the TCPA in federal court?\n The TCPA is an anti-SLAPP (Strategic Litigation Against Public\nParticipation) statute designed to “encourage and safeguard the constitutional\nrights of persons to petition, speak freely, associate freely, and otherwise\nparticipate in government to the maximum extent permitted by law.” Tex. Civ.\nPrac. & Rem. Code § 27.002. Other states have passed similar anti-SLAPP\nstatutes because they “have expressed concerns over the use (or abuse) of\nlawsuits that have the purpose or effect of chilling the exercise of First\nAmendment rights.” Henry v. Lake Charles American Press, L.L.C.,\n566 F.3d 164, 169 (5th Cir. 2009). In Henry, this court held that Louisiana’s\n“nominally procedural” anti-SLAPP statute applies in federal court pursuant\nto the Erie doctrine. Id. at 168–69; see LA. CODE CIV. PROC. art. 971. This court\nhas, however, passed several times on deciding whether, or to what extent, the\nTCPA applies in federal court. Cuba v. Pylant, 814 F.3d 701, 706 & n.6\n(5th Cir. 2016); but see id. at 719 (Graves, J., dissenting) (arguing that the\nTCPA cannot apply because the state statute conflicts with the Federal Rules);\nBlock v. Tanenhaus, 867 F.3d 585, 589 n.2 (5th Cir. 2017) (collecting cases). In\nthis appeal, we are required to confront the question directly. And we\ngenerally agree with Judge Graves’s conclusion.\n Codified in the Texas Civil Practice and Remedies Code, the TCPA\neffectuates a speedy process for resolving litigation that may impinge on a\nparty’s exercise of the rights to free speech, petition, or association. See Tex.\nCiv. Prac. & Rem. Code § 27.003(a). Under the statutory burden-shifting\nframework, if a movant for TCPA relief shows “by a preponderance of the\nevidence” that the action is based on the movant’s exercise of the listed rights,\na court must dismiss the case. Id. at § 27.005(b)(1)–(3). But if the non-movant\n 4\n\f Case: 17-11320 Document: 00515088714 Page: 5 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\n“establishes by clear and specific evidence a prima facie case for each element\nof the claim in question,” the court may not dismiss. Id. at § 27.005(c). The\nmovant then may show “by a preponderance of the evidence each essential\nelement of a valid defense” to the claim and be entitled to dismissal.\nId. at § 27.005(d). Pleadings and affidavits are permissible for evaluating the\ndismissal motion and responses. Id. at § 27.006(a). Discovery is generally\nstayed while the motion is pending, id. at § 27.003(c), subject to limited\nrelevant discovery for good cause shown. Id. at § 27.006(b). Specific time limits\nare prescribed for the filing of the motion, holding a hearing, and ruling on the\nmotion. Id. at § 27.004(a)–(c). Mandatory attorney’s fees and costs are\nawarded to the movant if the case is dismissed, id. at § 27.009(a)(1), and\nsanctions may be imposed to deter the party who brought the legal action.\nId. at § 27.009(a)(2).\n The Erie line of authorities holds that substantive state law must be\napplied in federal courts in diversity cases like this one, but state procedural\nlaw yields to the applicable Federal Rules. Hanna v. Plumer,\n380 U.S. 460, 465, 85 S. Ct. 1136, 1141 (1965). Determining whether the state\nlaw is procedural or substantive may prove elusive. See Cuba,\n814 F.3d at 718– 19 (Graves, J., dissenting). Succinctly put, however,\n“[a] federal court exercising diversity jurisdiction should not apply a state law\nor rule if (1) a Federal Rule of Civil Procedure ‘answer[s] the same question’ as\nthe state law or rule and (2) the Federal Rule does not violate the Rules\nEnabling Act.” Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333\n(D.C. Cir. 2015) (Kavanaugh, J.) (quoting Shady Grove Orthopedic Assocs.,\nP.A. v. Allstate Ins. Co., 559 U.S. 393, 398–99, 130 S. Ct. 1431, 1437 (2010)\n(majority op.)). Courts do not “wade into Erie’s murky waters unless the\nfederal rule is inapplicable or invalid.” Shady Grove,\n559 U.S. at 398, 130 S. Ct. at 1437.\n 5\n\f Case: 17-11320 Document: 00515088714 Page: 6 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\n Relying on Abbas and like decisions, Klocke argues that the TCPA’s\nburden-shifting framework and heightened evidentiary standards for pretrial\ndismissal collide with and “answer the same question[s]” as Federal Rules of\nCivil Procedure 12 and 56. See also Carbone v. Cable News Network, Inc.,\n910 F.3d 1345, 1352 (11th Cir. 2018) (Pryor, J.); Makaeff v. Trump Univ., LLC,\n715 F.3d 254, 275 (9th Cir. 2013) (Kozinski, C.J., concurring). We find most\npersuasive the reasoning of the D.C. Circuit that Rules 12 and 56, which\ngovern dismissal and summary judgment motions, respectively, answer the\nsame question as the anti-SLAPP statute: what are the circumstances under\nwhich a court must dismiss a case before trial? Abbas, 783 F.3d at 1333–34.\nAccording to the D.C. Circuit, the Federal Rules and the anti-SLAPP statute\nconflict because, unlike the former procedures, the D.C. anti-SLAPP provisions\nrequire the plaintiff to show “a likelihood of success on the merits.” Id. at 1334.\n“The D.C. Anti-SLAPP Act, in other words, conflicts with the Federal Rules by\nsetting up an additional hurdle a plaintiff must jump over to get to trial.” Id.;\nbut see Godin v. Schencks, 629 F.3d 79, 86–87 (1st Cir. 2010) (holding Maine’s\nanti-SLAPP law does not conflict with federal rules, because “neither Fed. R.\nCiv. P. 12(b)(6) nor Fed. R. Civ. P. 56, on a straightforward reading of its\nlanguage, was meant to control the particular issues under [Maine’s anti-\nSLAPP statute] . . . .”); see also Adelson v. Harris, 774 F.3d 803, 809 (2d Cir.\n2014) (approving use of Nevada anti-SLAPP law in federal court in part\nbecause “immunity” and fee-shifting statutes are substantive under Erie);\nUnited States ex rel. Newsham v. Lockheed Missiles & Space Co., Inc.,\n190 F.3d 963, 973 (9th Cir. 1999).\n The court in Abbas was heavily influenced by the Supreme Court’s\ndecision in Shady Grove, where a New York statute largely copied the\nrequirements for class certification under Rule 23 but added that a suit “to\nrecover a penalty, or minimum measure of recovery created or imposed by\n 6\n\f Case: 17-11320 Document: 00515088714 Page: 7 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\nstatute may not be maintained as a class action.” Shady Grove,\n559 U.S. at 396 n.1, 130 S. Ct. at 1436 n.1. Holding the state law\nunenforceable in federal court, the Supreme Court decided that Rule 23\n“creates a categorical rule entitling a plaintiff whose suit meets the specified\ncriteria to pursue his claim as a class action.” Id. at 398, 130 S. Ct. at 1437.\nAfter all, “Rule 23 permits all class actions that meet its requirements, and a\nState cannot limit that permission by structuring one part of its statute to\ntrack Rule 23 and enacting another part that imposes additional\nrequirements.” Id. at 401, 130 S. Ct. at 1439. In other words, both statutes\nanswered the same question, “whether a class action may proceed for a given\nsuit,” id., but the state rule imposed additional requirements that Rule 23 did\nnot.\n In sum, Shady Grove and Abbas hold that a state rule conflicts with a\nfederal procedural rule when it imposes additional procedural requirements\nnot found in the federal rules. The rules “answer the same question” when\neach specifies requirements for a case to proceed at the same stage of litigation.\n Because the TCPA’s burden-shifting framework imposes additional\nrequirements beyond those found in Rules 12 and 56 and answers the same\nquestion as those rules, the state law cannot apply in federal court. Under\nRule 12(b)(6), a federal court may dismiss a case for failure to state a claim\nupon which relief may be granted if, accepting all well-pleaded factual\nallegations as true, the complaint does not state a plausible claim for relief.\nAshcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S. Ct. 1937, 1949–50 (2009). This\nis not an insuperable pleading barrier, and it requires no evidentiary support:\n“a well-pleaded complaint may proceed even if it strikes a savvy judge that\nactual proof of those facts is improbable, and that a recovery is very remote\nand unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556,\n127 S. Ct. 1955, 1965 (2007) (quotation marks omitted). Rule 56 states that a\n 7\n\f Case: 17-11320 Document: 00515088714 Page: 8 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\ncourt “shall grant summary judgment if the movant shows that there is no\ngenuine dispute as to any material fact and the movant is entitled to judgment\nas a matter of law.” Fed. R. Civ. P. 56(a). The party resisting summary\njudgment succeeds simply by showing that a material fact issue exists and\nrequires trial by a factfinder. In ruling on a summary judgment motion, “the\njudge’s function is not himself to weigh the evidence and determine the truth\nof the matter but to determine whether there is a genuine issue for trial.”\nAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511\n(1986). Summary judgment motions are normally resolved after the discovery\nprocess has concluded or sufficiently progressed.\n In contrast to the federal procedural requirements, the TCPA imposes\nadditional requirements that demand judicial weighing of evidence. Thus,\nconfronted with a motion to dismiss under the TCPA, the court must determine\n“by a preponderance of the evidence” whether the action relates to a party’s\nexercise of First Amendment rights. Tex. Civ. Prac. & Rem. Code\n§ 27.005(b)(1)-(3). The court must also determine whether there is “clear and\nspecific evidence” that a plaintiff can meet each element of his claim.\nId. at § 27.005(c). “Clear and specific evidence” must be, inter alia,\n“unambiguous, sure, or free from doubt.” In re Lipsky, 460 S.W.3d 579, 590\n(Tex. 2015). The standard, which lies somewhere between the state’s pleading\nbaseline and the standard necessary to prevail at trial, id. at 591, in any event\nexceeds the plaintiff’s Rule 56 burden to defeat summary judgment. Finally,\nthe court must determine “by a preponderance of the evidence” if the defendant\ncan establish a valid defense to the plaintiff’s claim. Tex. Civ. Prac. & Rem.\nCode § 27.005(d). All these determinations are to be made while discovery\nnormally available in federal court is circumscribed by the TCPA, except for\n“good cause.” Id. at §§ 27.003(c), 27.006(b). Because the TCPA imposes\n\n\n 8\n\f Case: 17-11320 Document: 00515088714 Page: 9 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\nevidentiary weighing requirements not found in the Federal Rules, and\noperates largely without pre-decisional discovery, it conflicts with those rules. 5\n Watson advocates the reasoning of the First Circuit, which held that the\nMaine anti-SLAPP statute’s requirement that a plaintiff show probable\nsuccess “does not seek to displace the Federal Rules or have Rules 12(b)(6) and\n56 cease to function.” Godin, 629 F.3d at 88. To be sure, nothing about the\nTCPA suggests that a party could not file a Rule 12 or 56 motion in federal\ncourt alongside a TCPA motion to dismiss. The TCPA states that it “does not\nabrogate or lessen any other defense, remedy, immunity, or privilege available\nunder other constitutional, statutory, case, or common law or rule provisions.”\nTex. Civ. Prac. & Rem. Code § 27.011(a). Watson’s reasoning boils down to the\nidea that the federal rules impose only minimum procedural requirements and\nstate rules may build upon them. “But the test of whether a conflict between\nthe Federal Rules and a state statute exists is not whether it is logically\npossible for a court to comply with the requirements of both, but whether the\nFederal Rules in question are ‘sufficiently broad to control the issue before the\ncourt.’” Carbone, 910 F.3d at 1355. Further, the Federal Rules impose\ncomprehensive, not minimum, pleading requirements. Rules 8, 12, and 56\n“provide a comprehensive framework governing pretrial dismissal and\njudgment.” Id. at 1351. These rules “contemplate that a claim will be assessed\non the pleadings alone or under the summary judgment standard; there is no\nroom for any other device for determining whether a valid claim supported by\nsufficient evidence [will] avoid pretrial dismissal.” Id. Watson’s reasoning also\n\n\n\n 5 This analysis does not even reach the time constraints imposed by the TCPA for\nmotions and rulings on dismissals, analogies to which are found nowhere in the Federal\nRules. Although this court analyzed a timeliness requirement in Cuba, we did so because no\nparty had challenged whether such provisions of the TCPA run afoul of Erie and Shady\nGrove. Cuba, 814 F.3d at 706 n.6.\n\n 9\n\f Case: 17-11320 Document: 00515088714 Page: 10 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\ncontravenes Shady Grove’s conclusion that states may not superimpose\nadditional requirements on the Federal Rules where the provisions “answer\nthe same question.” 6\n The practical conflict caused by application of the TCPA in federal court\nis exemplified in this case, where appellee Watson sought dismissal predicated\nsolely on the TCPA without alluding to Rule 12(b)(6). Klocke was\nunderstandably thrown off balance by this selective choice of procedure, but he\nwas additionally waylaid when the court applied its own Local Rule deadline\nfor his response to the motion while declining to explain how the TCPA,\nincluding its limits on discovery, would apply in the case. This court also\ngrappled with overlap between the TCPA and the Federal Rules in Cuba,\nwhich had to figure out the impact of the TCPA’s denial of a motion to dismiss\nby operation of law, Tex. Civ. Prac. & Rem. Code § 27.008(a), on the timeliness\nof an appeal to this court. And in Henry, to which we turn momentarily,\nwhether to grant an interlocutory appeal of the denial of a motion to dismiss\nproved vexing.\n Describing the rights afforded certain litigants under the TCPA as\n“substantive” fails to address the uncertainty caused by the state statute’s\nongoing conflict with federal rules. We do not disregard the statute’s expressed\npurpose to safeguard the exercise of protected First Amendment rights by\nexpediting such cases to conclusion. But Judge Kozinski’s summary of the\n\n\n\n\n 6 Klocke also alleges that the TCPA’s attorney’s fees and sanctions provisions conflict\nwith Rules 12(b)(6) and 56. But we need not discuss that issue in detail because those\nprovisions are not applicable apart from the burden-shifting early dismissal framework. See\nTex. Civ. Prac. & Rem. Code § 27.009(a) (“If the court orders dismissal of a legal action under\nthis chapter, the court shall award to the moving party” attorney’s fees and possible\nsanctions.) (emphasis added). Suffice to say that because the TCPA does not apply in federal\ncourt, the district court erred by awarding fees and sanctions pursuant to it.\n\n 10\n\f Case: 17-11320 Document: 00515088714 Page: 11 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\noperation of a California anti-SLAPP statute pertains equally to the TCPA: the\nstatute\n creates no substantive rights; it merely provides a procedural\n mechanism for vindicating existing rights. The language of the\n statute is procedural. . . . The statute deals only with the conduct\n of the lawsuit; it creates no rights independent of existing\n litigation; and its only purpose is the swift termination of certain\n lawsuits the legislators believed to be unduly burdensome.\n\nMakaeff, 715 F.3d at 273 (Kozinski, C.J., concurring) (citation omitted).\n Because a conflict exists, we must also decide, although there is really\nno doubt, whether Rules 12 and 56 are “a valid exercise of Congress’s\nrulemaking authority” under the Rules Enabling Act. All Plaintiffs v. All\nDefendants, 645 F.3d 329, 333 (5th Cir. 2011); see Burlington N. R.R. Co. v.\nWoods, 480 U.S. 1, 5, 107 S. Ct. 967, 969–70 (1987). These federal rules\nrepresent such a valid exercise. “So far, the Supreme Court has rejected every\nchallenge to the Federal Rules that it has considered under the Rules Enabling\nAct.” Abbas, 783 F.3d at 1336. As Sibbach explains, “any federal rule that\n‘really regulates procedure’ is valid under the Rules Enabling Act.” Id. at 1337\n(quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14, 61 S. Ct. 422, 426 (1941)).\nRules 12 and 56\n are valid under the Rules Enabling Act because they define the\n procedures for determining whether a claim is alleged in a\n sufficient manner in a complaint and whether there is a genuine\n dispute of material fact sufficient to warrant a trial. These Rules\n affect[] only the process of enforcing litigants’ rights and not the\n rights themselves, and thus really regulate procedure.\n\nCarbone, 910 F.3d at 1357 (quotation marks and internal citation omitted)\n(alteration in original).\n Watson’s most important potential support derives from the one case in\nwhich this court applied the burden-shifting Louisiana anti-SLAPP statute,\n\n 11\n\f Case: 17-11320 Document: 00515088714 Page: 12 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\nLA. CODE CIV. PROC. art. 971, and dismissed a case because the plaintiff had not\nmet its “high burden” of rebutting the motion by showing “a probability of\nsuccess” on its claim. Henry, 566 F.3d at 169, 182. In Henry, the court stated\nthat “Louisiana law, including the nominally-procedural Article 971, governs\nthis diversity case.” Id. at 168–69. But the court did not discuss the potential\nconflict between the state law and federal rules, and Henry preceded the\ndecision in Shady Grove. A series of subsequent decisions in this court has\npointedly declined to hold Henry controlling on the applicability of the TCPA,\nalthough none of the Texas anti-SLAPP appeals ultimately turned, as does this\ncase, on actual application of the TCPA’s shifting burdens.\n Although this question is not free from doubt, we conclude that Henry is\nnot binding on this panel under our rule of orderliness. United States v. Boche-\nPerez, 755 F.3d 327, 334 (5th Cir. 2014) (“[A] panel of the court cannot overturn\na prior panel decision absent an intervening change in the law . . . .”) (quotation\nmarks omitted). Henry interprets a different statute, albeit a different version\nof an anti-SLAPP statute. The two states’ laws differ in that Texas imposes\nhigher and more complex preliminary burdens on the motion to dismiss\nprocess 7 and imposes rigorous procedural deadlines. 8 The conflict between the\nTexas law and the Federal Rules is manifest, while the comparable conflict\n\n\n\n 7 Texas requires the movant for dismissal to show by a “preponderance of the evidence”\nthat the lawsuit is based on the movant’s exercise of the right to free speech, petition, or\nassociation. Tex. Civ. Prac. & Rem. Code § 27.005(b)(1)-(3). Louisiana requires a “prima\nfacie showing.” Henry, 566 F.3d at 170. Texas requires the non-movant to set out a prima\nfacie case on each element of its claim by “clear and specific evidence,” and then authorizes\nrebuttal by a “preponderance of the evidence” on each element of a valid defense to the claim.\nTex. Civ. Prac. & Rem. Code § 27.005(c)-(d). Louisiana requires the plaintiff to demonstrate\n“a probability of success on his claim.” LA. CODE CIV. PROC. art. 971(A)(1), (3).\n\n 8The motion to dismiss must generally be filed within 60 days of service of process,\nthe court must generally hold a hearing no later than 60 days following service of the\ndismissal motion, and the court must generally rule on the motion within 30 days after the\nhearing. Tex. Civ. Prac. & Rem. Code §§ 27.003(b), 27.004(a)-(b), 27.005(a).\n 12\n\f Case: 17-11320 Document: 00515088714 Page: 13 Date Filed: 08/23/2019\n\n\n\n No. 17-11320\nbetween the Federal Rules and Louisiana law is less obvious. See, e.g., Block,\n815 F.3d at 221 (“[A] non-movant’s burden in opposing an Article 971 motion\nto strike is the same as that of a non-movant opposing summary judgment\nunder Rule 56”). In addition, there is no indication in Henry that the court\nconsidered the potential overlap or conflict between the Louisiana anti-SLAPP\nprovision and the Federal Rules, nor is it obvious that that case would have\nbeen decided differently, e.g., on summary judgment under the Federal Rules.\nAnd of course, the Henry panel did not have the benefit of the Supreme Court’s\ncompelling decision in Shady Grove. For these reasons, we conclude that this\npanel is not bound by a non-argued, undecided issue in another case\ninterpreting another state’s dissimilar statute.\n B. The district court’s enforcement of the local rules\n Klocke also asserts that the district court erred by enforcing the\nNorthern District of Texas’s Local Rules and holding that he missed the\ndeadline to respond to Watson’s TCPA motion. Because we conclude that the\nTCPA does not apply in this diversity case in federal court, Klocke’s ostensible\nwaiver is irrelevant. Klocke expressly preserved his argument that the Fifth\nCircuit had not explicitly held whether the TCPA applied in federal court. He\nis now entitled to pursue his case under the Federal Rules unhindered by the\nTCPA. He is likewise free to pursue discovery apart from the district court’s\ndenial of discovery under the TCPA.\n CONCLUSION\n The district court’s judgment of dismissal is REVERSED, and the case\nis REMANDED for further proceedings consistent with this opinion.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Wayne Klocke v. University of TX at Arlington\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-11320 Document: 00515088714 Page: 1 Date Filed: 08/23/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 17-11320 FILED\\n August 23, 2019\\n Lyle W. Cayce\\nWAYNE M. KLOCKE, Clerk\\nIndependent Administrator of\\nthe Estate of Thomas Klocke,\\n\\n Plaintiff - Appellant\\nv.\\n\\nNICHOLAS MATTHEW WATSON,\\n\\n Defendant - Appellee\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore JONES, BARKSDALE, and WILLETT, Circuit Judges.\\nEDITH H. JONES, Circuit Judge:\\n The critical issue in this appeal is whether, or to what extent, the Texas\\nCitizens Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code\\n§§ 27.001- .011, which is a type of anti-SLAPP statute, 1 applies in a diversity\\nsuit in federal court. The district court held it applicable as a “substantive”\\nmatter and accordingly granted appellee Nicholas Watson’s motion to dismiss\\nand awarded attorney’s fees pursuant to the TCPA. Resolving an issue that\\nhas brewed for several years in this circuit, we conclude that the TCPA does\\n\\n\\n\\n\\n 1 SLAPP is an acronym for Strategic Litigation Against Public Participation.\\n\\f Case: 17-11320 Document: 00515088714 Page: 2 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nnot apply to diversity cases in federal court and therefore REVERSE and\\nREMAND for further proceedings.\\n BACKGROUND\\n Appellant Wayne Klocke’s son, Thomas, was a student at the University\\nof Texas at Arlington who tragically committed suicide in June 2016 after\\nbeing refused permission to graduate. Thomas was allegedly the victim of\\nappellee Watson’s false charge of homophobic harassment, for which the\\nUniversity administered its severe punishment after allegedly violating\\nTitle IX procedures designed to achieve due process.\\n As administrator of his son’s estate, Klocke sued the University for Title\\nIX violations and Watson for common law defamation and defamation per se.\\nWatson moved to dismiss the defamation claims under the TCPA.\\n Klocke responded in a document titled “Plaintiff’s Objection to\\nDefendant Watson’s Motion to Dismiss; in the alternative, Motion for\\nProtective Order and Request for Procedural Clarification from the Court and\\nBrief in Support.” The response asserted that the TCPA is inapplicable in\\nfederal court, but it did not substantively address Watson’s arguments based\\non the requirements of the TCPA. The objection noted that the Fifth Circuit\\nhad not explicitly held whether the TCPA applied in federal court and asked\\nthe district court to clarify “whether and how it will entertain Defendant\\nWatson’s TCPA motion to dismiss in this case . . . and what procedures and\\ndeadlines will apply.” Klocke also requested the district court to clarify\\nwhether he must file a reply pursuant to the Northern District of Texas’s Local\\nRules or at the motion hearing prescribed in the TCPA. 2 Alternatively, Klocke\\nmoved for discovery and further time to respond substantively to the TCPA\\nmotion if the court held that the TCPA was applicable.\\n\\n\\n 2 The TCPA mandates a motion hearing. Tex. Civ. Prac. & Rem. Code § 27.004(a)–(c).\\n 2\\n\\f Case: 17-11320 Document: 00515088714 Page: 3 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\n The district court overruled the objection to applying the TCPA and\\nconcluded that Klocke waived any “substantive” TCPA arguments by failing to\\nmake them within twenty-one days pursuant to Local Rule 7.1(e). The district\\ncourt denied his other requests and accordingly granted Watson’s motion to\\ndismiss. Later, the court awarded Watson $25,000 in attorney’s fees, $3,000\\nin expenses, and a $1.00 sanction, all pursuant to the TCPA. The district court\\nentered a “Final Judgment as to Certain Party.” 3 Klocke timely appealed. 4\\n STANDARD OF REVIEW\\n This court reviews de novo a decision applying state law in federal court.\\nSee Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 395 (5th Cir. 2003). The\\ncourt reviews “the district court’s administrative handling of a case, including\\nits enforcement of the local rules and its own scheduling orders, for abuse of\\ndiscretion.” Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th Cir. 2002).\\nAbuse of discretion is also the test on appeal of a “court’s decision to limit\\ndiscovery….” Crosby v. La. Health Serv. and Indem. Co., 647 F.3d 258, 261\\n(5th Cir. 2011).\\n DISCUSSION\\n On appeal, Klocke principally contends that the TCPA’s essentially\\n“procedural” provisions conflict with federal procedural rules and therefore do\\nnot apply in federal court. He also argues that the district court erred by\\nenforcing its local rules and not allowing him to respond to Watson’s TCPA\\n\\n 3 The court denied the University’s Rule 12(b)(6) motion to dismiss, and the case\\nagainst that defendant remains pending in the district court. We nevertheless have appellate\\njurisdiction over this appeal as to Watson’s dismissal pursuant to Federal Rule of Civil\\nProcedure 54(b). The court’s dismissal order “As to Certain Party” sufficiently explains that\\nthere was “no just reason for delay” albeit without explicit reference to the Rule itself. See\\nStewart v. Miss. Transp. Comm’n, 586 F.3d 321, 327 (5th Cir. 2009).\\n\\n 4 The court also overruled Klocke’s motion for reconsideration, which sought to offer\\nevidence in support of the defamation of his son by Watson. The court, however, reiterated\\nthe “substantive” applicability of the TCPA in federal court and rejected Klocke’s evidence,\\ninter alia, as untimely.\\n 3\\n\\f Case: 17-11320 Document: 00515088714 Page: 4 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nmotion and by denying him an opportunity to move for discovery under the\\nTCPA.\\n A. Applying the TCPA in federal court?\\n The TCPA is an anti-SLAPP (Strategic Litigation Against Public\\nParticipation) statute designed to “encourage and safeguard the constitutional\\nrights of persons to petition, speak freely, associate freely, and otherwise\\nparticipate in government to the maximum extent permitted by law.” Tex. Civ.\\nPrac. & Rem. Code § 27.002. Other states have passed similar anti-SLAPP\\nstatutes because they “have expressed concerns over the use (or abuse) of\\nlawsuits that have the purpose or effect of chilling the exercise of First\\nAmendment rights.” Henry v. Lake Charles American Press, L.L.C.,\\n566 F.3d 164, 169 (5th Cir. 2009). In Henry, this court held that Louisiana’s\\n“nominally procedural” anti-SLAPP statute applies in federal court pursuant\\nto the Erie doctrine. Id. at 168–69; see LA. CODE CIV. PROC. art. 971. This court\\nhas, however, passed several times on deciding whether, or to what extent, the\\nTCPA applies in federal court. Cuba v. Pylant, 814 F.3d 701, 706 & n.6\\n(5th Cir. 2016); but see id. at 719 (Graves, J., dissenting) (arguing that the\\nTCPA cannot apply because the state statute conflicts with the Federal Rules);\\nBlock v. Tanenhaus, 867 F.3d 585, 589 n.2 (5th Cir. 2017) (collecting cases). In\\nthis appeal, we are required to confront the question directly. And we\\ngenerally agree with Judge Graves’s conclusion.\\n Codified in the Texas Civil Practice and Remedies Code, the TCPA\\neffectuates a speedy process for resolving litigation that may impinge on a\\nparty’s exercise of the rights to free speech, petition, or association. See Tex.\\nCiv. Prac. & Rem. Code § 27.003(a). Under the statutory burden-shifting\\nframework, if a movant for TCPA relief shows “by a preponderance of the\\nevidence” that the action is based on the movant’s exercise of the listed rights,\\na court must dismiss the case. Id. at § 27.005(b)(1)–(3). But if the non-movant\\n 4\\n\\f Case: 17-11320 Document: 00515088714 Page: 5 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\n“establishes by clear and specific evidence a prima facie case for each element\\nof the claim in question,” the court may not dismiss. Id. at § 27.005(c). The\\nmovant then may show “by a preponderance of the evidence each essential\\nelement of a valid defense” to the claim and be entitled to dismissal.\\nId. at § 27.005(d). Pleadings and affidavits are permissible for evaluating the\\ndismissal motion and responses. Id. at § 27.006(a). Discovery is generally\\nstayed while the motion is pending, id. at § 27.003(c), subject to limited\\nrelevant discovery for good cause shown. Id. at § 27.006(b). Specific time limits\\nare prescribed for the filing of the motion, holding a hearing, and ruling on the\\nmotion. Id. at § 27.004(a)–(c). Mandatory attorney’s fees and costs are\\nawarded to the movant if the case is dismissed, id. at § 27.009(a)(1), and\\nsanctions may be imposed to deter the party who brought the legal action.\\nId. at § 27.009(a)(2).\\n The Erie line of authorities holds that substantive state law must be\\napplied in federal courts in diversity cases like this one, but state procedural\\nlaw yields to the applicable Federal Rules. Hanna v. Plumer,\\n380 U.S. 460, 465, 85 S. Ct. 1136, 1141 (1965). Determining whether the state\\nlaw is procedural or substantive may prove elusive. See Cuba,\\n814 F.3d at 718– 19 (Graves, J., dissenting). Succinctly put, however,\\n“[a] federal court exercising diversity jurisdiction should not apply a state law\\nor rule if (1) a Federal Rule of Civil Procedure ‘answer[s] the same question’ as\\nthe state law or rule and (2) the Federal Rule does not violate the Rules\\nEnabling Act.” Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333\\n(D.C. Cir. 2015) (Kavanaugh, J.) (quoting Shady Grove Orthopedic Assocs.,\\nP.A. v. Allstate Ins. Co., 559 U.S. 393, 398–99, 130 S. Ct. 1431, 1437 (2010)\\n(majority op.)). Courts do not “wade into Erie’s murky waters unless the\\nfederal rule is inapplicable or invalid.” Shady Grove,\\n559 U.S. at 398, 130 S. Ct. at 1437.\\n 5\\n\\f Case: 17-11320 Document: 00515088714 Page: 6 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\n Relying on Abbas and like decisions, Klocke argues that the TCPA’s\\nburden-shifting framework and heightened evidentiary standards for pretrial\\ndismissal collide with and “answer the same question[s]” as Federal Rules of\\nCivil Procedure 12 and 56. See also Carbone v. Cable News Network, Inc.,\\n910 F.3d 1345, 1352 (11th Cir. 2018) (Pryor, J.); Makaeff v. Trump Univ., LLC,\\n715 F.3d 254, 275 (9th Cir. 2013) (Kozinski, C.J., concurring). We find most\\npersuasive the reasoning of the D.C. Circuit that Rules 12 and 56, which\\ngovern dismissal and summary judgment motions, respectively, answer the\\nsame question as the anti-SLAPP statute: what are the circumstances under\\nwhich a court must dismiss a case before trial? Abbas, 783 F.3d at 1333–34.\\nAccording to the D.C. Circuit, the Federal Rules and the anti-SLAPP statute\\nconflict because, unlike the former procedures, the D.C. anti-SLAPP provisions\\nrequire the plaintiff to show “a likelihood of success on the merits.” Id. at 1334.\\n“The D.C. Anti-SLAPP Act, in other words, conflicts with the Federal Rules by\\nsetting up an additional hurdle a plaintiff must jump over to get to trial.” Id.;\\nbut see Godin v. Schencks, 629 F.3d 79, 86–87 (1st Cir. 2010) (holding Maine’s\\nanti-SLAPP law does not conflict with federal rules, because “neither Fed. R.\\nCiv. P. 12(b)(6) nor Fed. R. Civ. P. 56, on a straightforward reading of its\\nlanguage, was meant to control the particular issues under [Maine’s anti-\\nSLAPP statute] . . . .”); see also Adelson v. Harris, 774 F.3d 803, 809 (2d Cir.\\n2014) (approving use of Nevada anti-SLAPP law in federal court in part\\nbecause “immunity” and fee-shifting statutes are substantive under Erie);\\nUnited States ex rel. Newsham v. Lockheed Missiles & Space Co., Inc.,\\n190 F.3d 963, 973 (9th Cir. 1999).\\n The court in Abbas was heavily influenced by the Supreme Court’s\\ndecision in Shady Grove, where a New York statute largely copied the\\nrequirements for class certification under Rule 23 but added that a suit “to\\nrecover a penalty, or minimum measure of recovery created or imposed by\\n 6\\n\\f Case: 17-11320 Document: 00515088714 Page: 7 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nstatute may not be maintained as a class action.” Shady Grove,\\n559 U.S. at 396 n.1, 130 S. Ct. at 1436 n.1. Holding the state law\\nunenforceable in federal court, the Supreme Court decided that Rule 23\\n“creates a categorical rule entitling a plaintiff whose suit meets the specified\\ncriteria to pursue his claim as a class action.” Id. at 398, 130 S. Ct. at 1437.\\nAfter all, “Rule 23 permits all class actions that meet its requirements, and a\\nState cannot limit that permission by structuring one part of its statute to\\ntrack Rule 23 and enacting another part that imposes additional\\nrequirements.” Id. at 401, 130 S. Ct. at 1439. In other words, both statutes\\nanswered the same question, “whether a class action may proceed for a given\\nsuit,” id., but the state rule imposed additional requirements that Rule 23 did\\nnot.\\n In sum, Shady Grove and Abbas hold that a state rule conflicts with a\\nfederal procedural rule when it imposes additional procedural requirements\\nnot found in the federal rules. The rules “answer the same question” when\\neach specifies requirements for a case to proceed at the same stage of litigation.\\n Because the TCPA’s burden-shifting framework imposes additional\\nrequirements beyond those found in Rules 12 and 56 and answers the same\\nquestion as those rules, the state law cannot apply in federal court. Under\\nRule 12(b)(6), a federal court may dismiss a case for failure to state a claim\\nupon which relief may be granted if, accepting all well-pleaded factual\\nallegations as true, the complaint does not state a plausible claim for relief.\\nAshcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S. Ct. 1937, 1949–50 (2009). This\\nis not an insuperable pleading barrier, and it requires no evidentiary support:\\n“a well-pleaded complaint may proceed even if it strikes a savvy judge that\\nactual proof of those facts is improbable, and that a recovery is very remote\\nand unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556,\\n127 S. Ct. 1955, 1965 (2007) (quotation marks omitted). Rule 56 states that a\\n 7\\n\\f Case: 17-11320 Document: 00515088714 Page: 8 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\ncourt “shall grant summary judgment if the movant shows that there is no\\ngenuine dispute as to any material fact and the movant is entitled to judgment\\nas a matter of law.” Fed. R. Civ. P. 56(a). The party resisting summary\\njudgment succeeds simply by showing that a material fact issue exists and\\nrequires trial by a factfinder. In ruling on a summary judgment motion, “the\\njudge’s function is not himself to weigh the evidence and determine the truth\\nof the matter but to determine whether there is a genuine issue for trial.”\\nAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511\\n(1986). Summary judgment motions are normally resolved after the discovery\\nprocess has concluded or sufficiently progressed.\\n In contrast to the federal procedural requirements, the TCPA imposes\\nadditional requirements that demand judicial weighing of evidence. Thus,\\nconfronted with a motion to dismiss under the TCPA, the court must determine\\n“by a preponderance of the evidence” whether the action relates to a party’s\\nexercise of First Amendment rights. Tex. Civ. Prac. & Rem. Code\\n§ 27.005(b)(1)-(3). The court must also determine whether there is “clear and\\nspecific evidence” that a plaintiff can meet each element of his claim.\\nId. at § 27.005(c). “Clear and specific evidence” must be, inter alia,\\n“unambiguous, sure, or free from doubt.” In re Lipsky, 460 S.W.3d 579, 590\\n(Tex. 2015). The standard, which lies somewhere between the state’s pleading\\nbaseline and the standard necessary to prevail at trial, id. at 591, in any event\\nexceeds the plaintiff’s Rule 56 burden to defeat summary judgment. Finally,\\nthe court must determine “by a preponderance of the evidence” if the defendant\\ncan establish a valid defense to the plaintiff’s claim. Tex. Civ. Prac. & Rem.\\nCode § 27.005(d). All these determinations are to be made while discovery\\nnormally available in federal court is circumscribed by the TCPA, except for\\n“good cause.” Id. at §§ 27.003(c), 27.006(b). Because the TCPA imposes\\n\\n\\n 8\\n\\f Case: 17-11320 Document: 00515088714 Page: 9 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nevidentiary weighing requirements not found in the Federal Rules, and\\noperates largely without pre-decisional discovery, it conflicts with those rules. 5\\n Watson advocates the reasoning of the First Circuit, which held that the\\nMaine anti-SLAPP statute’s requirement that a plaintiff show probable\\nsuccess “does not seek to displace the Federal Rules or have Rules 12(b)(6) and\\n56 cease to function.” Godin, 629 F.3d at 88. To be sure, nothing about the\\nTCPA suggests that a party could not file a Rule 12 or 56 motion in federal\\ncourt alongside a TCPA motion to dismiss. The TCPA states that it “does not\\nabrogate or lessen any other defense, remedy, immunity, or privilege available\\nunder other constitutional, statutory, case, or common law or rule provisions.”\\nTex. Civ. Prac. & Rem. Code § 27.011(a). Watson’s reasoning boils down to the\\nidea that the federal rules impose only minimum procedural requirements and\\nstate rules may build upon them. “But the test of whether a conflict between\\nthe Federal Rules and a state statute exists is not whether it is logically\\npossible for a court to comply with the requirements of both, but whether the\\nFederal Rules in question are ‘sufficiently broad to control the issue before the\\ncourt.’” Carbone, 910 F.3d at 1355. Further, the Federal Rules impose\\ncomprehensive, not minimum, pleading requirements. Rules 8, 12, and 56\\n“provide a comprehensive framework governing pretrial dismissal and\\njudgment.” Id. at 1351. These rules “contemplate that a claim will be assessed\\non the pleadings alone or under the summary judgment standard; there is no\\nroom for any other device for determining whether a valid claim supported by\\nsufficient evidence [will] avoid pretrial dismissal.” Id. Watson’s reasoning also\\n\\n\\n\\n 5 This analysis does not even reach the time constraints imposed by the TCPA for\\nmotions and rulings on dismissals, analogies to which are found nowhere in the Federal\\nRules. Although this court analyzed a timeliness requirement in Cuba, we did so because no\\nparty had challenged whether such provisions of the TCPA run afoul of Erie and Shady\\nGrove. Cuba, 814 F.3d at 706 n.6.\\n\\n 9\\n\\f Case: 17-11320 Document: 00515088714 Page: 10 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\ncontravenes Shady Grove’s conclusion that states may not superimpose\\nadditional requirements on the Federal Rules where the provisions “answer\\nthe same question.” 6\\n The practical conflict caused by application of the TCPA in federal court\\nis exemplified in this case, where appellee Watson sought dismissal predicated\\nsolely on the TCPA without alluding to Rule 12(b)(6). Klocke was\\nunderstandably thrown off balance by this selective choice of procedure, but he\\nwas additionally waylaid when the court applied its own Local Rule deadline\\nfor his response to the motion while declining to explain how the TCPA,\\nincluding its limits on discovery, would apply in the case. This court also\\ngrappled with overlap between the TCPA and the Federal Rules in Cuba,\\nwhich had to figure out the impact of the TCPA’s denial of a motion to dismiss\\nby operation of law, Tex. Civ. Prac. & Rem. Code § 27.008(a), on the timeliness\\nof an appeal to this court. And in Henry, to which we turn momentarily,\\nwhether to grant an interlocutory appeal of the denial of a motion to dismiss\\nproved vexing.\\n Describing the rights afforded certain litigants under the TCPA as\\n“substantive” fails to address the uncertainty caused by the state statute’s\\nongoing conflict with federal rules. We do not disregard the statute’s expressed\\npurpose to safeguard the exercise of protected First Amendment rights by\\nexpediting such cases to conclusion. But Judge Kozinski’s summary of the\\n\\n\\n\\n\\n 6 Klocke also alleges that the TCPA’s attorney’s fees and sanctions provisions conflict\\nwith Rules 12(b)(6) and 56. But we need not discuss that issue in detail because those\\nprovisions are not applicable apart from the burden-shifting early dismissal framework. See\\nTex. Civ. Prac. & Rem. Code § 27.009(a) (“If the court orders dismissal of a legal action under\\nthis chapter, the court shall award to the moving party” attorney’s fees and possible\\nsanctions.) (emphasis added). Suffice to say that because the TCPA does not apply in federal\\ncourt, the district court erred by awarding fees and sanctions pursuant to it.\\n\\n 10\\n\\f Case: 17-11320 Document: 00515088714 Page: 11 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\noperation of a California anti-SLAPP statute pertains equally to the TCPA: the\\nstatute\\n creates no substantive rights; it merely provides a procedural\\n mechanism for vindicating existing rights. The language of the\\n statute is procedural. . . . The statute deals only with the conduct\\n of the lawsuit; it creates no rights independent of existing\\n litigation; and its only purpose is the swift termination of certain\\n lawsuits the legislators believed to be unduly burdensome.\\n\\nMakaeff, 715 F.3d at 273 (Kozinski, C.J., concurring) (citation omitted).\\n Because a conflict exists, we must also decide, although there is really\\nno doubt, whether Rules 12 and 56 are “a valid exercise of Congress’s\\nrulemaking authority” under the Rules Enabling Act. All Plaintiffs v. All\\nDefendants, 645 F.3d 329, 333 (5th Cir. 2011); see Burlington N. R.R. Co. v.\\nWoods, 480 U.S. 1, 5, 107 S. Ct. 967, 969–70 (1987). These federal rules\\nrepresent such a valid exercise. “So far, the Supreme Court has rejected every\\nchallenge to the Federal Rules that it has considered under the Rules Enabling\\nAct.” Abbas, 783 F.3d at 1336. As Sibbach explains, “any federal rule that\\n‘really regulates procedure’ is valid under the Rules Enabling Act.” Id. at 1337\\n(quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14, 61 S. Ct. 422, 426 (1941)).\\nRules 12 and 56\\n are valid under the Rules Enabling Act because they define the\\n procedures for determining whether a claim is alleged in a\\n sufficient manner in a complaint and whether there is a genuine\\n dispute of material fact sufficient to warrant a trial. These Rules\\n affect[] only the process of enforcing litigants’ rights and not the\\n rights themselves, and thus really regulate procedure.\\n\\nCarbone, 910 F.3d at 1357 (quotation marks and internal citation omitted)\\n(alteration in original).\\n Watson’s most important potential support derives from the one case in\\nwhich this court applied the burden-shifting Louisiana anti-SLAPP statute,\\n\\n 11\\n\\f Case: 17-11320 Document: 00515088714 Page: 12 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nLA. CODE CIV. PROC. art. 971, and dismissed a case because the plaintiff had not\\nmet its “high burden” of rebutting the motion by showing “a probability of\\nsuccess” on its claim. Henry, 566 F.3d at 169, 182. In Henry, the court stated\\nthat “Louisiana law, including the nominally-procedural Article 971, governs\\nthis diversity case.” Id. at 168–69. But the court did not discuss the potential\\nconflict between the state law and federal rules, and Henry preceded the\\ndecision in Shady Grove. A series of subsequent decisions in this court has\\npointedly declined to hold Henry controlling on the applicability of the TCPA,\\nalthough none of the Texas anti-SLAPP appeals ultimately turned, as does this\\ncase, on actual application of the TCPA’s shifting burdens.\\n Although this question is not free from doubt, we conclude that Henry is\\nnot binding on this panel under our rule of orderliness. United States v. Boche-\\nPerez, 755 F.3d 327, 334 (5th Cir. 2014) (“[A] panel of the court cannot overturn\\na prior panel decision absent an intervening change in the law . . . .”) (quotation\\nmarks omitted). Henry interprets a different statute, albeit a different version\\nof an anti-SLAPP statute. The two states’ laws differ in that Texas imposes\\nhigher and more complex preliminary burdens on the motion to dismiss\\nprocess 7 and imposes rigorous procedural deadlines. 8 The conflict between the\\nTexas law and the Federal Rules is manifest, while the comparable conflict\\n\\n\\n\\n 7 Texas requires the movant for dismissal to show by a “preponderance of the evidence”\\nthat the lawsuit is based on the movant’s exercise of the right to free speech, petition, or\\nassociation. Tex. Civ. Prac. & Rem. Code § 27.005(b)(1)-(3). Louisiana requires a “prima\\nfacie showing.” Henry, 566 F.3d at 170. Texas requires the non-movant to set out a prima\\nfacie case on each element of its claim by “clear and specific evidence,” and then authorizes\\nrebuttal by a “preponderance of the evidence” on each element of a valid defense to the claim.\\nTex. Civ. Prac. & Rem. Code § 27.005(c)-(d). Louisiana requires the plaintiff to demonstrate\\n“a probability of success on his claim.” LA. CODE CIV. PROC. art. 971(A)(1), (3).\\n\\n 8The motion to dismiss must generally be filed within 60 days of service of process,\\nthe court must generally hold a hearing no later than 60 days following service of the\\ndismissal motion, and the court must generally rule on the motion within 30 days after the\\nhearing. Tex. Civ. Prac. & Rem. Code §§ 27.003(b), 27.004(a)-(b), 27.005(a).\\n 12\\n\\f Case: 17-11320 Document: 00515088714 Page: 13 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-11320\\nbetween the Federal Rules and Louisiana law is less obvious. See, e.g., Block,\\n815 F.3d at 221 (“[A] non-movant’s burden in opposing an Article 971 motion\\nto strike is the same as that of a non-movant opposing summary judgment\\nunder Rule 56”). In addition, there is no indication in Henry that the court\\nconsidered the potential overlap or conflict between the Louisiana anti-SLAPP\\nprovision and the Federal Rules, nor is it obvious that that case would have\\nbeen decided differently, e.g., on summary judgment under the Federal Rules.\\nAnd of course, the Henry panel did not have the benefit of the Supreme Court’s\\ncompelling decision in Shady Grove. For these reasons, we conclude that this\\npanel is not bound by a non-argued, undecided issue in another case\\ninterpreting another state’s dissimilar statute.\\n B. The district court’s enforcement of the local rules\\n Klocke also asserts that the district court erred by enforcing the\\nNorthern District of Texas’s Local Rules and holding that he missed the\\ndeadline to respond to Watson’s TCPA motion. Because we conclude that the\\nTCPA does not apply in this diversity case in federal court, Klocke’s ostensible\\nwaiver is irrelevant. Klocke expressly preserved his argument that the Fifth\\nCircuit had not explicitly held whether the TCPA applied in federal court. He\\nis now entitled to pursue his case under the Federal Rules unhindered by the\\nTCPA. He is likewise free to pursue discovery apart from the district court’s\\ndenial of discovery under the TCPA.\\n CONCLUSION\\n The district court’s judgment of dismissal is REVERSED, and the case\\nis REMANDED for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3691,"cells":{"id":{"kind":"number","value":4655532,"string":"4,655,532"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Dany Pena Oseguera v. William Barr, U. S. Atty Gen"},"decision_date":{"kind":"string","value":"2019-08-23"},"docket_number":{"kind":"string","value":"17-60339"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"KURT D. ENGELHARDT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-60339 Document: 00515089293 Page: 1 Date Filed: 08/23/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n No. 17-60339 FILED\\n August 23, 2019\\n\\nDANY ARIEL PENA OSEGUERA, Lyle W. Cayce\\n Clerk\\n Petitioner\\nv.\\n\\nWILLIAM P. BARR, U.S. ATTORNEY GENERAL,\\n\\n Respondent\\n\\n\\n\\n\\n Petition for Review of an Order of the\\n Board of Immigration Appeals\\n\\n\\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\\nKURT D. ENGELHARDT, Circuit Judge:\\n\\n\\n Dany Ariel Pena Oseguera (Pena Oseguera) is a native of Honduras. He\\nappeals the denial of his application for asylum and withholding of removal.\\n I.\\n In early 2013, Pena Oseguera was a university student and lived with\\nhis family. During that time, his mother, a Honduran supervisory police officer,\\nreceived a tip about corrupt police officers who were colluding with gangs. She\\nreferred the tip to a member of the police force with jurisdiction to investigate\\ncorruption. The investigator was murdered in June 2013.\\n Pena Oseguera claims he was approached later in 2013 by a person who\\noffered him a job as a bill collector. Pena Oseguera expressed interest but later\\n\\f Case: 17-60339 Document: 00515089293 Page: 2 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-60339\\ndeclined the offer. At that point, the person threatened to kill him. Pena\\nOseguera later found out that the person was a gang member. Several days\\nlater, Pena Oseguera’s mother received two text messages threatening her\\nentire family. The messages noted that she was a police officer and specifically\\nmentioned Pena Oseguera.\\n Pena Oseguera’s parents quickly arranged for him to travel to the United\\nStates. After he left, his mother received two more messages threatening her\\nfamily. She also stated that over a year later, her home was shot up by\\nunknown assailants, who she suspected were the corrupt police officers 1.\\n Pena Oseguera applied for asylum, withholding of removal, and relief\\nunder the Convention Against Torture (CAT). On June 6, 2016, the\\nImmigration Judge (IJ) granted relief under CAT. The IJ did not grant the\\nasylum and withholding of removal requests, finding that Pena Oseguera did\\nnot establish a nexus between the alleged persecution and a legally “protected\\nground.” Pena Osegeura appealed, and the Board of Immigration Appeals\\n(BIA) upheld the IJ’s determination on April 3, 2017. He then timely filed a\\npetition for review of the BIA’s decision on May 3, 2017.\\n II.\\n Courts of appeals have exclusive jurisdiction to review final orders of\\nremoval. 8 U.S.C. § 1252(a)(5) (2012). This court usually only reviews the BIA’s\\nfinal decision, unless, as in this instance, the BIA’s decision is affected by the\\nIJ’s decision. In that circumstance, we review both. Sealed Petitioner v. Sealed\\nRespondent, 829 F.3d 379, 383 (5th Cir. 2016). We review legal conclusions de\\nnovo and factual findings for substantial evidence. Id.\\n\\n\\n\\n\\n 1 Pena Oseguera’s mother also entered the United States and testified in support of\\nhis application.\\n 2\\n\\f Case: 17-60339 Document: 00515089293 Page: 3 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-60339\\n III.\\n As an applicant for asylum, Pena Oseguera must show that he is “unable\\nor unwilling to return” to his country of origin “because of persecution or a well-\\nfounded fear of persecution on account of race, religion, nationality,\\nmembership in a particular social group, or political opinion.” 8 U.S.C. §\\n1101(a)(42). Pena Oseguera must also show a nexus – that the protected\\nground “was or will be at least one central reason for persecuting the\\napplicant.” Id. at § 1158(b)(1)(B)(i). A central motive is not “incidental,\\ntangential, superficial, or subordinate to another reason for harm.” Shaikh v.\\nHolder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting In re J-B-N & S-M, 24 I. &\\nN. Dec. 208, 214 (BIA 2007)).\\n At the time we heard oral arguments in this case, Matter of L-E-A- was\\npending before the Attorney General. 27 I. & N. Dec. 581 (U.S. Att’y Gen. 2019).\\nThat case directly took up the question of whether families qualified as “social\\ngroups” for the purposes of refugee status. 2 We held this case in abeyance\\npending a decision by the Attorney General. A decision has now been\\npublished, and Matter of L-E-A stands for the proposition that families may\\nqualify as social groups, but the decision must be reached on a case-by-case\\nbasis. The “applicant must establish that his specific family group is defined\\nwith sufficient particularity and is socially distinct in his society.” 27 I. & N.\\nDec. 581, 586 (U.S. Att’y Gen. 2019). This is “a fact-based inquiry made on a\\ncase-by-case basis.” Id. at 584 (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 42\\n(BIA 2017)).\\n In the instant case, the BIA assumed that “the respondent properly and\\ntimely set forth the particular social group of his family.” It then stated that\\n\\n\\n 2 “Whether, and under what circumstances, an alien may establish persecution on\\naccount of membership in a ‘particular social group’ . . . based on the alien’s membership in\\na family unit.” In re L-E-A-, 27 I. & N. Dec. 494. 494 (U.S. Att’y Gen. 2018).\\n 3\\n\\f Case: 17-60339 Document: 00515089293 Page: 4 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-60339\\n“the Immigration Judge’s decision does not specifically address this [social]\\ngroup.” Importantly, the BIA went on to suggest that the factual record and\\nanalysis from the IJ was lacking, but brushed that aside because it intended\\nto make the decision based only on an analysis of the nexus: “However, we need\\nnot remand the record for additional fact finding or analysis [on the issue of\\nsocial group].”\\n The BIA admitted that the Immigration Judge incorrectly conflated the\\nrespondent’s claim with that of his mother (“We briefly note that the\\nrespondent is not a derivative application on his mother’s separate asylum\\napplication, and thus each claim must stand on its own merits.” Id. at 3.). The\\nBIA then claims to have come to an “independent conclusion” which “this\\nreasoning by the Immigration Judge does not meaningfully impact.” However,\\nthe BIA must rely on the factual findings of the IJ, which were likely impacted\\nby the incorrect legal posture through which the IJ viewed the case. Zumel v.\\nLynch, 803 F.3d 463, 475 (9th Cir. 2015).\\n IV.\\n Considering this error, and in order that the IJ and the BIA may have\\nthe benefit of the increased clarity provided by Matter of L-E-A-, we determine\\nit prudent to remand. We recognize that Matter of L-E-A- is at odds with the\\nprecedent of several circuits. Matter of L-E-A-, 27 I&N Dec. at 589-91\\n(analyzing precedent from the First, Fourth, Sixth, Seventh, Eighth, and Ninth\\nCircuits). However, it is not at odds with any precedent in the Fifth Circuit.\\nWe therefore VACATE and REMAND for consideration in light of Matter of L-\\nE-A-.\\n\\n\\n\\n\\n 4\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4432785/\", \"author_raw\": \"KURT D. ENGELHARDT, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"COSTA"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JOLLY\": \", Circuit\", \"COSTA\": \", Circuit\", \"ENGELHARDT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4655532/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Dany Pena Oseguera v. William Barr, U. S. Atty Gen\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-60339 Document: 00515089293 Page: 1 Date Filed: 08/23/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n No. 17-60339 FILED\n August 23, 2019\n\nDANY ARIEL PENA OSEGUERA, Lyle W. Cayce\n Clerk\n Petitioner\nv.\n\nWILLIAM P. BARR, U.S. ATTORNEY GENERAL,\n\n Respondent\n\n\n\n\n Petition for Review of an Order of the\n Board of Immigration Appeals\n\n\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\nKURT D. ENGELHARDT, Circuit Judge:\n\n\n Dany Ariel Pena Oseguera (Pena Oseguera) is a native of Honduras. He\nappeals the denial of his application for asylum and withholding of removal.\n I.\n In early 2013, Pena Oseguera was a university student and lived with\nhis family. During that time, his mother, a Honduran supervisory police officer,\nreceived a tip about corrupt police officers who were colluding with gangs. She\nreferred the tip to a member of the police force with jurisdiction to investigate\ncorruption. The investigator was murdered in June 2013.\n Pena Oseguera claims he was approached later in 2013 by a person who\noffered him a job as a bill collector. Pena Oseguera expressed interest but later\n\f Case: 17-60339 Document: 00515089293 Page: 2 Date Filed: 08/23/2019\n\n\n\n No. 17-60339\ndeclined the offer. At that point, the person threatened to kill him. Pena\nOseguera later found out that the person was a gang member. Several days\nlater, Pena Oseguera’s mother received two text messages threatening her\nentire family. The messages noted that she was a police officer and specifically\nmentioned Pena Oseguera.\n Pena Oseguera’s parents quickly arranged for him to travel to the United\nStates. After he left, his mother received two more messages threatening her\nfamily. She also stated that over a year later, her home was shot up by\nunknown assailants, who she suspected were the corrupt police officers 1.\n Pena Oseguera applied for asylum, withholding of removal, and relief\nunder the Convention Against Torture (CAT). On June 6, 2016, the\nImmigration Judge (IJ) granted relief under CAT. The IJ did not grant the\nasylum and withholding of removal requests, finding that Pena Oseguera did\nnot establish a nexus between the alleged persecution and a legally “protected\nground.” Pena Osegeura appealed, and the Board of Immigration Appeals\n(BIA) upheld the IJ’s determination on April 3, 2017. He then timely filed a\npetition for review of the BIA’s decision on May 3, 2017.\n II.\n Courts of appeals have exclusive jurisdiction to review final orders of\nremoval. 8 U.S.C. § 1252(a)(5) (2012). This court usually only reviews the BIA’s\nfinal decision, unless, as in this instance, the BIA’s decision is affected by the\nIJ’s decision. In that circumstance, we review both. Sealed Petitioner v. Sealed\nRespondent, 829 F.3d 379, 383 (5th Cir. 2016). We review legal conclusions de\nnovo and factual findings for substantial evidence. Id.\n\n\n\n\n 1 Pena Oseguera’s mother also entered the United States and testified in support of\nhis application.\n 2\n\f Case: 17-60339 Document: 00515089293 Page: 3 Date Filed: 08/23/2019\n\n\n\n No. 17-60339\n III.\n As an applicant for asylum, Pena Oseguera must show that he is “unable\nor unwilling to return” to his country of origin “because of persecution or a well-\nfounded fear of persecution on account of race, religion, nationality,\nmembership in a particular social group, or political opinion.” 8 U.S.C. §\n1101(a)(42). Pena Oseguera must also show a nexus – that the protected\nground “was or will be at least one central reason for persecuting the\napplicant.” Id. at § 1158(b)(1)(B)(i). A central motive is not “incidental,\ntangential, superficial, or subordinate to another reason for harm.” Shaikh v.\nHolder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting In re J-B-N & S-M, 24 I. &\nN. Dec. 208, 214 (BIA 2007)).\n At the time we heard oral arguments in this case, Matter of L-E-A- was\npending before the Attorney General. 27 I. & N. Dec. 581 (U.S. Att’y Gen. 2019).\nThat case directly took up the question of whether families qualified as “social\ngroups” for the purposes of refugee status. 2 We held this case in abeyance\npending a decision by the Attorney General. A decision has now been\npublished, and Matter of L-E-A stands for the proposition that families may\nqualify as social groups, but the decision must be reached on a case-by-case\nbasis. The “applicant must establish that his specific family group is defined\nwith sufficient particularity and is socially distinct in his society.” 27 I. & N.\nDec. 581, 586 (U.S. Att’y Gen. 2019). This is “a fact-based inquiry made on a\ncase-by-case basis.” Id. at 584 (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 42\n(BIA 2017)).\n In the instant case, the BIA assumed that “the respondent properly and\ntimely set forth the particular social group of his family.” It then stated that\n\n\n 2 “Whether, and under what circumstances, an alien may establish persecution on\naccount of membership in a ‘particular social group’ . . . based on the alien’s membership in\na family unit.” In re L-E-A-, 27 I. & N. Dec. 494. 494 (U.S. Att’y Gen. 2018).\n 3\n\f Case: 17-60339 Document: 00515089293 Page: 4 Date Filed: 08/23/2019\n\n\n\n No. 17-60339\n“the Immigration Judge’s decision does not specifically address this [social]\ngroup.” Importantly, the BIA went on to suggest that the factual record and\nanalysis from the IJ was lacking, but brushed that aside because it intended\nto make the decision based only on an analysis of the nexus: “However, we need\nnot remand the record for additional fact finding or analysis [on the issue of\nsocial group].”\n The BIA admitted that the Immigration Judge incorrectly conflated the\nrespondent’s claim with that of his mother (“We briefly note that the\nrespondent is not a derivative application on his mother’s separate asylum\napplication, and thus each claim must stand on its own merits.” Id. at 3.). The\nBIA then claims to have come to an “independent conclusion” which “this\nreasoning by the Immigration Judge does not meaningfully impact.” However,\nthe BIA must rely on the factual findings of the IJ, which were likely impacted\nby the incorrect legal posture through which the IJ viewed the case. Zumel v.\nLynch, 803 F.3d 463, 475 (9th Cir. 2015).\n IV.\n Considering this error, and in order that the IJ and the BIA may have\nthe benefit of the increased clarity provided by Matter of L-E-A-, we determine\nit prudent to remand. We recognize that Matter of L-E-A- is at odds with the\nprecedent of several circuits. Matter of L-E-A-, 27 I&N Dec. at 589-91\n(analyzing precedent from the First, Fourth, Sixth, Seventh, Eighth, and Ninth\nCircuits). However, it is not at odds with any precedent in the Fifth Circuit.\nWe therefore VACATE and REMAND for consideration in light of Matter of L-\nE-A-.\n\n\n\n\n 4\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Dany Pena Oseguera v. William Barr, U. S. Atty Gen\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-60339 Document: 00515089293 Page: 1 Date Filed: 08/23/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n No. 17-60339 FILED\\n August 23, 2019\\n\\nDANY ARIEL PENA OSEGUERA, Lyle W. Cayce\\n Clerk\\n Petitioner\\nv.\\n\\nWILLIAM P. BARR, U.S. ATTORNEY GENERAL,\\n\\n Respondent\\n\\n\\n\\n\\n Petition for Review of an Order of the\\n Board of Immigration Appeals\\n\\n\\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\\nKURT D. ENGELHARDT, Circuit Judge:\\n\\n\\n Dany Ariel Pena Oseguera (Pena Oseguera) is a native of Honduras. He\\nappeals the denial of his application for asylum and withholding of removal.\\n I.\\n In early 2013, Pena Oseguera was a university student and lived with\\nhis family. During that time, his mother, a Honduran supervisory police officer,\\nreceived a tip about corrupt police officers who were colluding with gangs. She\\nreferred the tip to a member of the police force with jurisdiction to investigate\\ncorruption. The investigator was murdered in June 2013.\\n Pena Oseguera claims he was approached later in 2013 by a person who\\noffered him a job as a bill collector. Pena Oseguera expressed interest but later\\n\\f Case: 17-60339 Document: 00515089293 Page: 2 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-60339\\ndeclined the offer. At that point, the person threatened to kill him. Pena\\nOseguera later found out that the person was a gang member. Several days\\nlater, Pena Oseguera’s mother received two text messages threatening her\\nentire family. The messages noted that she was a police officer and specifically\\nmentioned Pena Oseguera.\\n Pena Oseguera’s parents quickly arranged for him to travel to the United\\nStates. After he left, his mother received two more messages threatening her\\nfamily. She also stated that over a year later, her home was shot up by\\nunknown assailants, who she suspected were the corrupt police officers 1.\\n Pena Oseguera applied for asylum, withholding of removal, and relief\\nunder the Convention Against Torture (CAT). On June 6, 2016, the\\nImmigration Judge (IJ) granted relief under CAT. The IJ did not grant the\\nasylum and withholding of removal requests, finding that Pena Oseguera did\\nnot establish a nexus between the alleged persecution and a legally “protected\\nground.” Pena Osegeura appealed, and the Board of Immigration Appeals\\n(BIA) upheld the IJ’s determination on April 3, 2017. He then timely filed a\\npetition for review of the BIA’s decision on May 3, 2017.\\n II.\\n Courts of appeals have exclusive jurisdiction to review final orders of\\nremoval. 8 U.S.C. § 1252(a)(5) (2012). This court usually only reviews the BIA’s\\nfinal decision, unless, as in this instance, the BIA’s decision is affected by the\\nIJ’s decision. In that circumstance, we review both. Sealed Petitioner v. Sealed\\nRespondent, 829 F.3d 379, 383 (5th Cir. 2016). We review legal conclusions de\\nnovo and factual findings for substantial evidence. Id.\\n\\n\\n\\n\\n 1 Pena Oseguera’s mother also entered the United States and testified in support of\\nhis application.\\n 2\\n\\f Case: 17-60339 Document: 00515089293 Page: 3 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-60339\\n III.\\n As an applicant for asylum, Pena Oseguera must show that he is “unable\\nor unwilling to return” to his country of origin “because of persecution or a well-\\nfounded fear of persecution on account of race, religion, nationality,\\nmembership in a particular social group, or political opinion.” 8 U.S.C. §\\n1101(a)(42). Pena Oseguera must also show a nexus – that the protected\\nground “was or will be at least one central reason for persecuting the\\napplicant.” Id. at § 1158(b)(1)(B)(i). A central motive is not “incidental,\\ntangential, superficial, or subordinate to another reason for harm.” Shaikh v.\\nHolder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting In re J-B-N & S-M, 24 I. &\\nN. Dec. 208, 214 (BIA 2007)).\\n At the time we heard oral arguments in this case, Matter of L-E-A- was\\npending before the Attorney General. 27 I. & N. Dec. 581 (U.S. Att’y Gen. 2019).\\nThat case directly took up the question of whether families qualified as “social\\ngroups” for the purposes of refugee status. 2 We held this case in abeyance\\npending a decision by the Attorney General. A decision has now been\\npublished, and Matter of L-E-A stands for the proposition that families may\\nqualify as social groups, but the decision must be reached on a case-by-case\\nbasis. The “applicant must establish that his specific family group is defined\\nwith sufficient particularity and is socially distinct in his society.” 27 I. & N.\\nDec. 581, 586 (U.S. Att’y Gen. 2019). This is “a fact-based inquiry made on a\\ncase-by-case basis.” Id. at 584 (quoting Matter of L-E-A-, 27 I. & N. Dec. 40, 42\\n(BIA 2017)).\\n In the instant case, the BIA assumed that “the respondent properly and\\ntimely set forth the particular social group of his family.” It then stated that\\n\\n\\n 2 “Whether, and under what circumstances, an alien may establish persecution on\\naccount of membership in a ‘particular social group’ . . . based on the alien’s membership in\\na family unit.” In re L-E-A-, 27 I. & N. Dec. 494. 494 (U.S. Att’y Gen. 2018).\\n 3\\n\\f Case: 17-60339 Document: 00515089293 Page: 4 Date Filed: 08/23/2019\\n\\n\\n\\n No. 17-60339\\n“the Immigration Judge’s decision does not specifically address this [social]\\ngroup.” Importantly, the BIA went on to suggest that the factual record and\\nanalysis from the IJ was lacking, but brushed that aside because it intended\\nto make the decision based only on an analysis of the nexus: “However, we need\\nnot remand the record for additional fact finding or analysis [on the issue of\\nsocial group].”\\n The BIA admitted that the Immigration Judge incorrectly conflated the\\nrespondent’s claim with that of his mother (“We briefly note that the\\nrespondent is not a derivative application on his mother’s separate asylum\\napplication, and thus each claim must stand on its own merits.” Id. at 3.). The\\nBIA then claims to have come to an “independent conclusion” which “this\\nreasoning by the Immigration Judge does not meaningfully impact.” However,\\nthe BIA must rely on the factual findings of the IJ, which were likely impacted\\nby the incorrect legal posture through which the IJ viewed the case. Zumel v.\\nLynch, 803 F.3d 463, 475 (9th Cir. 2015).\\n IV.\\n Considering this error, and in order that the IJ and the BIA may have\\nthe benefit of the increased clarity provided by Matter of L-E-A-, we determine\\nit prudent to remand. We recognize that Matter of L-E-A- is at odds with the\\nprecedent of several circuits. Matter of L-E-A-, 27 I&N Dec. at 589-91\\n(analyzing precedent from the First, Fourth, Sixth, Seventh, Eighth, and Ninth\\nCircuits). However, it is not at odds with any precedent in the Fifth Circuit.\\nWe therefore VACATE and REMAND for consideration in light of Matter of L-\\nE-A-.\\n\\n\\n\\n\\n 4\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3692,"cells":{"id":{"kind":"number","value":4655662,"string":"4,655,662"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Lindsey Hoyt v. Lane Construction Corporati"},"decision_date":{"kind":"string","value":"2019-08-23"},"docket_number":{"kind":"string","value":"18-10289"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JONES, HAYNES, and OLDHAM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"ANDREW S. OLDHAM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-10289 Document: 00515089951 Page: 1 Date Filed: 08/23/2019\\n\\n\\n\\n\\n REVISED August 23, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n June 10, 2019\\n No. 18-10289\\n Lyle W. Cayce\\n Clerk\\nLINDSEY HOYT, Individually, and Independently as Administrator of the\\nEstate of Jeffery Hoyt and as Next Friend of Joel Hoyt, Evan Hoyt, and Katie\\nHoyt; PATRICK HOYT,\\n\\n Plaintiffs-Appellants,\\n\\nv.\\n\\nTHE LANE CONSTRUCTION CORPORATION,\\n\\n Defendant-Appellee.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore JONES, HAYNES, and OLDHAM, Circuit Judges.\\nANDREW S. OLDHAM, Circuit Judge:\\n We must decide whether the district court erred by refusing to remand\\nthis case to state court. It did not. Next, we must decide whether the district\\ncourt erred by granting summary judgment to the defendant. It did.\\n I.\\n On December 29, 2015, Jeffery Hoyt hit a patch of ice while driving on\\nFM 2264 in Wise County, Texas. Jeffery slid off the road. His car landed\\nupside down in an adjacent body of water. Tragically, Jeffery drowned. Less\\n\\n Case: 18-10289 Document: 00515089951 Page: 2 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nthan an hour later, a second driver hit the same patch of ice. The second driver\\nlikewise slid off the road. And the second driver landed directly on top of\\nJeffery’s submerged vehicle. That apparently saved the second driver from\\ndrowning. First responders rescued him and, in the process, discovered\\nJeffery’s vehicle and body.\\n On September 20, 2016, members of Jeffery’s family (“the Hoyts”) filed\\nsuit in Texas state court. They sued C.E.N. Concrete Construction Co., Storm\\nWater Management, Inc., and the Lane Construction Corporation. The Hoyts,\\nC.E.N., and Storm are citizens of Texas. Lane is not. The Hoyts contended all\\nthree companies had performed construction work on FM 2264 and caused ice\\nto form at the crash site. The defendants moved for summary judgment. The\\nstate district court granted C.E.N.’s motion and entered a “take nothing”\\njudgment in its favor.\\n The Hoyts and Storm engaged in settlement discussions. They never\\nreached agreement. Yet on September 22, 2017—one year and two days after\\nthe suit began—the Hoyts voluntarily dismissed their claims against Storm.\\nThe Hoyts received no compensation from Storm.\\n Five days later, Lane removed the case to federal court on the theory\\nthat it now fit within federal diversity jurisdiction. See 28 U.S.C. § 1332(a)(1);\\nLincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (requiring “complete\\ndiversity”). The next day, the Hoyts filed an emergency motion to remand.\\nThey argued Lane’s notice of removal was untimely. The federal district court\\ndenied that motion. In a second motion to remand filed about a month later,\\nthe Hoyts argued the voluntary-involuntary rule prohibited removal because\\nC.E.N. had been dismissed against their wishes. The district court denied that\\nmotion too.\\n Lane moved for summary judgment on the Hoyts’ claims for premises\\nliability and gross negligence. The federal district court granted the motion.\\n 2\\n\\n Case: 18-10289 Document: 00515089951 Page: 3 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nIt dismissed the claims against Lane with prejudice. The Hoyts timely\\nappealed.\\n II.\\n The Hoyts argue we must remand the case to state court. We disagree.\\nThe district court properly rejected both remand motions.\\n A.\\n The Hoyts’ first motion for remand turns on timeliness. Under 28 U.S.C.\\n§ 1446(c), the defendant in a diversity case has one year following the\\ncommencement of an action to remove it. But Congress created an exception\\nto this time bar where “the district court finds that the plaintiff has acted in\\nbad faith in order to prevent a defendant from removing the action.” Id.\\n§ 1446(c)(1). Here, the district court found the Hoyts acted in bad faith by\\nimproperly joining Storm (which prevented complete diversity and hence\\nprecluded removal). 1 The district court therefore denied the Hoyts’ motion to\\nremand under § 1446(c)’s time bar.\\n Although we review the denial of a motion to remand de novo, we review\\nthe underlying finding of bad faith for clear error. Spear Mktg., Inc. v.\\nBancorpSouth Bank, 791 F.3d 586, 591 (5th Cir. 2015). We hold (1) the district\\ncourt’s bad-faith finding was not clearly erroneous, and (2) the Hoyts cannot\\navoid that result by relying on cases that predate Congress’s enactment of the\\nbad-faith exception to § 1446(c)(1)’s time bar.\\n 1.\\n Exercising its role as factfinder, the district court found the Hoyts “knew\\nmonths beforehand that the evidence would not support the claims against\\n\\n\\n 1 This Court has “adopt[ed] the term ‘improper joinder’ as being more consistent with\\nthe statutory language than the term ‘fraudulent joinder,’ ” but “there is no substantive\\ndifference between the two terms.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1\\n(5th Cir. 2004) (en banc). Thus, we use the term “improper joinder” except where quoting\\nother authorities.\\n 3\\n\\n Case: 18-10289 Document: 00515089951 Page: 4 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nStorm.” That was not clear error. The Hoyts dismissed Storm a mere two days\\nafter the one-year deadline expired. They did so without receiving any\\nconsideration from Storm. Before that dismissal, the Hoyts seem to have\\npursued their claim against Storm only half-heartedly. Their witness list for\\ntrial did not include any fact witnesses from Storm. And the Hoyts’ expert\\nwitnesses made no serious efforts to establish Storm’s liability. All of this\\nsuggests the Hoyts kept Storm in the case for one purpose and one purpose\\nonly—to prevent removal during § 1446(c)’s one-year removal period. Two\\ndays after accomplishing that purpose, the Hoyts dismissed Storm for free.\\n The Hoyts’ response is unpersuasive. In the district court, the Hoyts\\nsubmitted an affidavit from their attorney to describe allegedly strategic\\nreasons for their decision to dismiss Storm. But these explanations relate to\\nwhy the Hoyts were reluctant to go to trial against Storm or accept Storm’s\\n(apparently low) settlement offer. They do not explain why the Hoyts waited\\nuntil just two days after the one-year deadline to dismiss Storm. And while\\nthe Hoyts claim they dismissed Storm after their settlement discussions came\\nto naught, the district court found it “suspicious[ ]” the Hoyts did not clarify\\nwhen “the alleged discussions with Storm” took place. We agree.\\n Nor can the Hoyts win a remand by raising “fact issues” regarding their\\ngood faith. True, “we resolve all contested factual issues . . . in favor of the\\nplaintiff ” when determining whether it improperly joined a non-diverse\\ndefendant. Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th\\nCir. 2007). That makes sense because, when considering whether “the plaintiff\\n[is able] to establish a cause of action against the non-diverse party in state\\ncourt,” the question is what the plaintiff might prove in the future. Ibid.; see\\nGuillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005); Smallwood v.\\nIll. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc). When it comes\\nto bad faith, by contrast, the question is what motivated the plaintiff in the\\n 4\\n\\n Case: 18-10289 Document: 00515089951 Page: 5 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\npast—that is, whether the plaintiff ’s litigation conduct meant “to prevent a\\ndefendant from removing the action.” 28 U.S.C. § 1446(c)(1). The district court\\nfound as a matter of fact the Hoyts acted in bad faith. The Hoyts failed to carry\\ntheir burden to prove that finding was clearly erroneous.\\n 2.\\n The Hoyts also argue we must reverse because their litigation conduct\\ndoes not satisfy the exception we created in Tedford v. Warner-Lambert Co.,\\n327 F.3d 423 (5th Cir. 2003). But Tedford pre-dates Congress’s enactment of\\nthe bad-faith exception in § 1446(c)(1), and it therefore does not control.\\n Before 2011, § 1446 prohibited defendants like Lane from removing a\\ncase “more than 1 year after commencement of the action”—full stop. 28 U.S.C.\\n§ 1446(b) (2006). The statutory text contained no exceptions. Believing this\\nold version of § 1446(b) was “not inflexible,” however, Tedford ruled “the\\nconduct of the parties may affect whether it is equitable to strictly apply the\\none-year limit.” 327 F.3d at 426. In light of the plaintiff’s “efforts to\\nmanipulate statutory rules,” the Tedford Court concluded, “[e]quity demands\\n[the plaintiff ] be estopped from seeking to remand the case on the basis of the\\none-year limit in § 1446(b).” Id. at 428 & n.13.\\n Other courts disagreed. They held that § 1446 did not allow for equitable\\ntolling or estoppel. See, e.g., Brock v. Syntex Labs., Inc., No. 92-5740, 1993 WL\\n389946, at *1 (6th Cir. Oct. 1, 1993); Kinabrew v. Emco-Wheaton, Inc., 936 F.\\nSupp. 351, 352 n.1 (M.D. La. 1996) (collecting cases). This split persisted until\\n2011, when Congress amended § 1446. See Federal Courts Jurisdiction and\\nVenue Clarification Act of 2011, Pub. L. No. 112-63, § 103(b), 125 Stat. 758,\\n760 (2011). By adding the bad-faith exception to the one-year deadline,\\nCongress resolved the conflict.\\n If Congress wanted to resolve the conflict by adopting the Tedford\\nstandard, it could have done so. Cf. 42 U.S.C. § 2000bb(b)(1) (listing the\\n 5\\n\\n Case: 18-10289 Document: 00515089951 Page: 6 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nrestoration of “the compelling interest test as set forth in Sherbert v. Verner,\\n374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)” as a purpose\\nof the Religious Freedom Restoration Act). But it did not. Congress instead\\nchose to replace Tedford’s equitable-estoppel principle with a “bad faith”\\nstandard. See 28 U.S.C. § 1446(c)(1). And we presume that choice of different\\ntext carries with it a choice of different meaning. Cf. Henson v. Santander\\nConsumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (“[W]hen we’re engaged in\\nthe business of interpreting statutes we presume differences in language . . .\\nconvey differences in meaning.”). We therefore no longer apply the old § 1446\\nand the Tedford exception we created. We now apply the new § 1446 and the\\nbad-faith exception Congress created. See Thompson v. Deutsche Bank Nat’l\\nTr. Co., 775 F.3d 298, 303 (5th Cir. 2014).\\n Our holding is consistent with the principle that “Congress is vested with\\nthe power to prescribe the basic procedural scheme under which claims may\\nbe heard in federal courts.” Patsy v. Bd. of Regents, 457 U.S. 496, 501 (1982).\\nOnce Congress has prescribed those procedures, we cannot add to them. See,\\ne.g., Ross v. Blake, 136 S. Ct. 1850, 1857 (2016) (holding the Prison Litigation\\nReform Act does not admit of judge-made exceptions). We do not exalt judge-\\nmade doctrines over valid laws. See Am. Express Co. v. Italian Colors Rest.,\\n570 U.S. 228, 235–39 (2013) (refusing to apply “a judge-made exception to the\\nFAA” broadly because “[t]he FAA does not sanction such a judicially created\\nsuperstructure”); CLS Bank Int’l v. Alice Corp. Pty., 717 F.3d 1269, 1303 (Fed.\\nCir. 2013) (en banc) (Rader, C.J., concurring in part and dissenting in part)\\n(“[J]udge-made exceptions to properly enacted statutes are to be narrowly\\nconstrued.”).\\n It does not matter the House Report accompanying the 2011 statute cites\\nTedford. That’s for two reasons. First, when “a statute’s text is clear, courts\\nshould not resort to legislative history.” Adkins v. Silverman, 899 F.3d 395,\\n 6\\n\\n Case: 18-10289 Document: 00515089951 Page: 7 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n403 (5th Cir. 2018). And we think the new § 1446(c)(1) is clear. But second, in\\nall events, the report cites Tedford only once, and only then to explain the\\nconflict the amendment would resolve. See H.R. REP. 112-10, at 15 (2011), as\\nreprinted in 2011 U.S.C.C.A.N. 576, 580. The report does not say the bill would\\nadopt the Tedford standard. Instead, it refers to the statutory bad-faith\\nexception as a “new standard.” Ibid. Relying on a single reference to Tedford—\\nwithout accounting for the author’s description of the bad-faith standard as\\n“new”—would be “akin to ‘looking over a crowd and picking out your friends.’ ”\\nPatricia M. Wald, Some Observations on the Use of Legislative History in the\\n1981 Supreme Court Term, 68 IOWA L. REV. 195, 214 (1983) (quoting Harold\\nLeventhal’s description of problems with citing legislative history).\\n Thus, even if the Hoyts’ litigation conduct would not satisfy the old\\nTedford standard (an issue we need not decide), that is no reason to reverse\\nthe district court’s finding of “bad faith” under the new § 1446(c)(1).\\n B.\\n The Hoyts’ second motion to remand turned on the voluntary-\\ninvoluntary rule. Removal was improper, they said, because diversity\\njurisdiction existed only after C.E.N. exited the case, and because C.E.N. exited\\nthe case pursuant to an opposed motion for summary judgment, not a\\nvoluntary act of the Hoyts. The Hoyts’ argument implicates the federal\\nremoval statute, a judge-made exception to the statute, and a judge-made\\nexception to that exception. We explain each in turn.\\n We start with the only easy part—the statutory text. Section 1446(b)(3)\\nis the provision governing removal of a case that becomes removable after the\\ninitial pleading is filed. Subject to exceptions not applicable here:\\n if the case stated by the initial pleading is not removable, a notice\\n of removal may be filed within 30 days after receipt by the\\n defendant . . . of a copy of an amended pleading, motion, order or\\n\\n 7\\n\\n Case: 18-10289 Document: 00515089951 Page: 8 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n other paper from which it may first be ascertained that the case is\\n one which is or has become removable.\\n28 U.S.C. § 1446(b)(3).\\n One might think a case is “removable” under § 1446 so long as it “may\\nbe removed” under § 1441. Indeed, courts generally understand § 1441 as\\ndefining removability. See Teamsters Local 404 Health Servs. & Ins. Plan v.\\nKing Pharm., Inc., 906 F.3d 260, 266 (2d Cir. 2018) (“[D]efin[ing] what kind of\\nproceedings are removable . . . is the ambit of § 1441.”); Medlin v. Boeing Vertol\\nCo., 620 F.2d 957, 964 (3d Cir. 1980) (“Section 1441(b) . . . defin[es]\\nremovability . . . .”). And with exceptions not relevant here, § 1441 provides\\n“any civil action brought in a State court of which the district courts of the\\nUnited States have original jurisdiction, may be removed.” 28 U.S.C.\\n§ 1441(a).\\n But this is an area thick with binding precedent. And precedent tells us\\nremovability under §§ 1441 and 1446 is subject to a judge-made exception:\\n“[W]here the case is not removable because of joinder of defendants,” only “the\\nvoluntary dismissal or nonsuit by [the plaintiff ] of a party or of parties\\ndefendant” can convert a nonremovable case into a removable one. Great N.\\nRy. Co. v. Alexander, 246 U.S. 276, 281 (1918). We have described this\\n“judicially-created voluntary-involuntary rule” as providing “an action\\nnonremovable when commenced may become removable thereafter only by the\\nvoluntary act of the plaintiff.” Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d\\n529, 532 (5th Cir. 2006) (quotation omitted).\\n The Supreme Court developed this principle before § 1446 expressly\\nprovided for removal of cases that were not initially removable. But in 1949,\\nCongress amended § 1446(b) to allow removal “after receipt . . . of an amended\\npleading, motion, order or other paper from which it may first be ascertained\\nthat the case is . . . removable.” Act of May 24, 1949, Pub. L. No. 81-72, § 83(a),\\n\\n 8\\n\\n Case: 18-10289 Document: 00515089951 Page: 9 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n63 Stat. 89, 101 (1949). Then we held the new § 1446(b) did not abrogate the\\nvoluntary-involuntary rule. See Weems v. Louis Dreyfus Corp., 380 F.2d 545,\\n547–48 (5th Cir. 1967).\\n The judicially created voluntary-involuntary rule is itself subject to a\\njudicially created exception for improper joinder. See Great N. Ry., 246 U.S. at\\n282 (recognizing the voluntary-involuntary rule applies only “in the absence of\\na fraudulent purpose to defeat removal”). When the non-diverse defendant\\nwas improperly joined, “the voluntary-involuntary rule is inapplicable.”\\nCrockett, 436 F.3d at 532.\\n Beneath this doctrinal thicket lurks a question presented—namely,\\nwhether C.E.N. was improperly joined. 2 We hold it was. Therefore, the\\nvoluntary-involuntary rule does not apply. And because the voluntary-\\n\\n\\n 2 The Hoyts argue we should not consider the improper-joinder exception because\\nLane forfeited the issue by failing to include it in its notice of removal. A notice of removal\\nmust “contain[ ] a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a).\\nLane’s notice of removal identified diversity jurisdiction as the ground for removal and\\nexplained that complete diversity existed because the Texas defendants were no longer in the\\ncase. Lane first raised improper joinder in its response to the Hoyts’ second motion to\\nremand. In this case at least, improper joinder was not a ground for removal. It was a\\nrebuttal to the Hoyts’ argument that the voluntary-involuntary rule prevented removal. In\\nother words, it was an exception to an exception to the ground of removal. We do not require\\na litigant to anticipatorily rebut all potential arguments his adversary may raise. Failing to\\ndo so is not a forfeiture. See R.J. Corman Derailment Servs., LLC v. Int’l Union of Operating\\nEng’rs, Local Union 150, 335 F.3d 643, 650 (7th Cir. 2003) (“[A] party cannot waive something\\nthat it does not know is at issue.”); NLRB v. NPC Int’l, Inc., No. 13-0010, 2017 WL 634713,\\nat *5 (W.D. Tenn. Feb. 16, 2017) (“A moving party does not waive reply arguments merely\\nbecause it fails to accurately predict the contentions of a responding party.”).\\n Neither the Hoyts nor the dissent point to any cases holding to the contrary. Some courts\\nhave held a removing defendant forfeits an improper-joinder argument by failing to include\\nit in the notice of removal when a non-diverse party remains in the case at the time of\\nremoval. See, e.g., Wessel v. Miraglia, No. 4:04-cv-377, 2004 WL 1943776, at *3 (N.D. Tex.\\nAug. 31, 2004) (treating improper joinder as a ground that should have been included in a\\nnotice of removal). But that rule does not apply where, as here, improper joinder is used as\\nan exception to the voluntary-involuntary rule. Thus, we need not decide whether those cases\\nare rightly decided. See Pharos Capital Grp., LLC v. Nutmeg Ins. Co., 999 F. Supp. 2d 947,\\n953 (N.D. Tex. 2014) (“[E]ven though it was brought up for the first time in its response to\\nthe Motion to Remand, [the removing defendant’s] improper joinder argument was not\\nwaived.”).\\n 9\\n\\n Case: 18-10289 Document: 00515089951 Page: 10 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\ninvoluntary rule does not apply, the case was removable under §§ 1441 and\\n1446.\\n Improper joinder “can be established by demonstrating,” among other\\nthings, the “inability of the plaintiff to establish a cause of action against the\\nnon-diverse party in state court.” Crockett, 436 F.3d at 532 (quotation\\nomitted). Assessing a plaintiff ’s ability to establish a cause of action against a\\nnon-diverse defendant in state court turns on whether the state courts have\\nalready ruled on the merits of the plaintiff ’s claim. If a state court has not yet\\nruled, the federal court must ask whether “there [is] any reasonable possibility\\nthat a state court would rule against the non-diverse defendant.” Poulos v.\\nNaas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). “If a state court has come to\\njudgment,” the federal court must ask whether “there [is] any reasonable\\npossibility that the judgment will be reversed on appeal.” Ibid.; see also\\nKnudson v. Sys. Painters, Inc., 634 F.3d 968, 980 n.11 (8th Cir. 2011); Arthur\\nv. E.I. du Pont, 798 F. Supp. 367, 369 (S.D. W. Va. 1992). 3\\n In this case, the state court had granted C.E.N.’s motion for summary\\njudgment. When C.E.N. won summary judgment, it exited the case. See, e.g.,\\nPoulos, 959 F.2d at 70 (describing a party who won summary judgment in state\\n\\n\\n\\n 3Apparently rejecting this framework, the dissent would conduct a “Rule 12(b)(6)-type\\nanalysis” and disregard the state court’s grant of summary judgment. Post at 20–22 (Haynes,\\nJ., dissenting). Under this Court’s precedent, a “Rule 12(b)(6)-type analysis” applies when a\\nfederal court is considering whether to dismiss a non-diverse defendant as improperly joined.\\nFlagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016) (en banc); Smallwood, 385 F.3d at\\n572–73. But it does not necessarily apply when a state court has already dismissed the non-\\ndiverse defendant. Cf. Crockett, 436 F.3d at 533. It would be passing strange for a federal\\ncourt asking whether the plaintiff can “establish a cause of action against the non-diverse\\nparty in state court,” Flagg, 819 F.3d at 136 (quotation omitted), to ignore that “a state court\\nhas come to judgment” on that very question, Poulos, 959 F.2d at 73; see also Knudson, 634\\nF.3d at 980 n.11. “We are always chary to create a circuit split,” Gahagan v. U.S. Citizenship\\n& Immigration Servs., 911 F.3d 298, 304 (5th Cir. 2018) (quotation omitted), and the dissent\\nprovides no compelling reason to do so here. The bottom line is this: for the reasons we have\\nexplained, the Hoyts’ case against C.E.N. was not winnable because they could not appeal\\nthe state court’s dismissal.\\n 10\\n\\n Case: 18-10289 Document: 00515089951 Page: 11 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\ncourt as “gone from the case”); Higgins v. E.I. DuPont de Nemours & Co., 863\\nF.2d 1162, 1166 (4th Cir. 1988) (explaining a “non-diverse party is eliminated\\nfrom the state action by voluntary or involuntary dismissal” in state court).\\nThe federal district court concluded there was no possibility the state court’s\\ngrant of summary judgment to C.E.N. would be reversed on appeal. The Hoyts\\nhad not argued they “could or would pursue an appeal of the granting of\\nC.E.N.’s motion for summary judgment,” and the district court concluded the\\nHoyts “apparently abandoned the right to do so.”\\n The Hoyts’ appellate briefs did not challenge the district court’s\\nconclusion that they could not appeal the grant of summary judgment to C.E.N.\\nAny argument undermining the district court’s conclusion is therefore\\nforfeited. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). The Hoyts’\\ncounsel did raise the issue at oral argument, but “[a]rguments presented for\\nthe first time at oral argument are [forfeited].” Comsat Corp. v. FCC, 250 F.3d\\n931, 936 n.5 (5th Cir. 2001).\\n When a state court order creates diversity jurisdiction and that order\\ncannot be reversed on appeal, our precedent treats the voluntary-involuntary\\nrule as inapplicable. See Crockett, 436 F.3d at 533 (“[R]emoval on the basis of\\nan unappealed severance, by a state court, of claims against improperly joined\\ndefendants is not subject to the voluntary-involuntary rule.”); 14C CHARLES\\nALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3723 (Rev. 4th ed.\\n2019) (explaining Crockett “makes sense because there is no risk of reversal of\\nan unappealed severance order”). In light of the district court’s now-\\nunchallengeable ruling that the state court’s dismissal of C.E.N. could not be\\nreversed on appeal, we are compelled to conclude C.E.N. was improperly\\n\\n\\n\\n\\n 11\\n\\n Case: 18-10289 Document: 00515089951 Page: 12 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\njoined. 4 As a result, the voluntary-involuntary rule did not bar Lane from\\nremoving the case to federal court. Therefore, the district court did not err in\\ndenying the Hoyts’ second motion to remand.\\n III.\\n We now consider whether the district court erred by granting Lane’s\\nmotion for summary judgment. Applying de novo review, DeVoss v. Sw.\\nAirlines Co., 903 F.3d 487, 490 (5th Cir. 2018), we conclude it did.\\n A.\\n The district court first held Lane is statutorily immune from the Hoyts’\\ndamages claims. Texas law provides:\\n A contractor who constructs or repairs a highway, road, or street\\n for the Texas Department of Transportation [(“TxDOT”)] is not\\n liable to a claimant for personal injury, property damage, or death\\n arising from the performance of the construction or repair if, at the\\n time of the personal injury, property damage, or death, the\\n contractor is in compliance with contract documents material to\\n the condition or defect that was the proximate cause of the\\n personal injury, property damage, or death.\\n\\n\\n\\n 4 The dissent says the Hoyts’ forfeiture is irrelevant because the issue is\\n“jurisdictional.” Post at 17–18 n.1 (Haynes, J., dissenting). That conflates the rules of\\nsubject-matter jurisdiction (which cannot be forfeited) with the rules of removal procedure\\n(which can be forfeited). Only Congress can make rules of unforfeitable subject-matter\\njurisdiction. See, e.g., Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017).\\nBy contrast, the judge-made voluntary-involuntary rule is a forfeitable rule of removal\\nprocedure. See Crockett, 436 F.3d at 533 (describing the voluntary-involuntary rule as a\\nmatter of “removal jurisdiction”); Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1543 (5th Cir.\\n1991) (explaining “improper removal (i.e., lack of removal jurisdiction) . . . is waivable”); see\\nalso Higgins, 863 F.2d at 1166 (holding a potential violation of the voluntary-involuntary rule\\ndid not deprive a federal district court of jurisdiction); Jones v. CMM of Ind., LLC, No. 05-cv-\\n4039, 2006 WL 120085, at *2 n.2 (E.D. La. Jan. 17, 2006) (holding “the voluntary/involuntary\\nrule is one of removal procedure rather than subject matter jurisdiction”). In all events, the\\nHoyts cannot bring C.E.N. back into the case for an independent reason—namely, their\\nclaims against C.E.N. are meritless for all the reasons the district court already gave. See\\nHoyt v. Lane, Order on Plaintiffs’ Second Motion to Remand, No. 17-cv-780, Doc. 32, at 4–5\\n(Dec. 4, 2017). Their “inability . . . to establish a cause of action against the non-diverse party\\nin state court” demonstrates improper joinder by itself. Crockett, 436 F.3d at 532 (quotation\\nomitted).\\n 12\\n\\n Case: 18-10289 Document: 00515089951 Page: 13 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nTEX. CIV. PRAC. & REM. CODE § 97.002. According to the district court, Lane\\nperformed its work on FM 2264 pursuant to a TxDOT contract and “did\\neverything to follow TxDOT plans.”\\n We disagree. On October 27, 2015—nine weeks before Jeffery’s tragic\\naccident—Lane performed remedial “erosion control” work alongside FM 2264.\\nTxDOT determined this remedial work was necessitated by Lane’s\\n“negligence.” Lane was not properly removing “accumulated silt” from the\\nconstruction site and instead was “push[ing] off [the silt] along the [right of\\nway].” The Hoyts argue this silt caused the pooling of water on FM 2264 that\\nkilled Jeffery. To support that argument, the Hoyts submitted expert\\ntestimony that Lane’s “[f]ailure to properly install and maintain sediment\\ncontrol measures” in accordance with its TxDOT contract caused water to\\n“flow[ ] onto the roadway.”\\n But that’s not all. On January 15, 2016—two weeks after Jeffery’s tragic\\ndeath—TxDOT completed a “Construction Stage Gate Checklist” for the FM\\n2264 project. It found Lane failed to install stormwater run-off “control\\nmeasures” in accordance with TxDOT specifications. It further found the\\n“control measures” were not “performing” or “properly maintained.”\\n These record materials—spanning the time period from before Jeffery’s\\naccident to after it—raise a material dispute of fact regarding Lane’s\\ncompliance or lack thereof with its TxDOT contract. Moreover, statutory\\nimmunity under § 97.002 is an affirmative defense on which Lane bore the\\nburden of proof. See Brown v. RK Hall Constr., Ltd., 500 S.W.3d 509, 512 (Tex.\\nApp.—Texarkana 2016, pet. denied). And Lane failed to show as a matter of\\nlaw that its TxDOT-documented negligence before the accident and its TxDOT-\\ndocumented inspection deficiencies after the accident did not cause Jeffery’s\\ndeath. Therefore, it was error to grant summary judgment on this ground.\\n\\n\\n 13\\n\\n Case: 18-10289 Document: 00515089951 Page: 14 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n B.\\n The district court next granted summary judgment to Lane on the Hoyts’\\npremises-liability claim. It did so on two grounds. We conclude material\\ndisputes of fact preclude both.\\n First, the district court found the ice patch that killed Jeffery was “a\\nnatural formation.” It is true that, under Texas law, “naturally occurring ice\\nthat accumulates without the assistance or involvement of unnatural contact\\nis not an unreasonably dangerous condition sufficient to support a premises\\nliability claim.” Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 414 (Tex.\\n2010). Here, however, the Hoyts have pointed to summary judgment evidence\\nthat the ice patch on FM 2264 accumulated through unnatural conditions—\\nnamely, Lane’s construction activities at the crash site. It submitted an expert\\nreport to that effect. Moreover, the State Trooper who responded to the\\naccident testified the ice patch that killed Jeffery was the only patch of ice\\nalong a 20-mile stretch of highway. The second driver (who also slid off the\\nroad and landed on top of Jeffery’s vehicle) testified to the same effect. This\\ntestimony—viewed in the light most favorable to the Hoyts—creates a material\\ndispute of fact regarding whether the ice patch formed naturally.\\n Second, the district court found Lane “did not have actual knowledge of\\na dangerous premises condition at the time of [Jeffery’s] accident.” Under\\nTexas law, actual knowledge can be proved through direct evidence or\\nreasonable inference. For example, in City of San Antonio v. Rodriguez, 931\\nS.W.2d 535 (Tex. 1996) (per curiam), the plaintiff slipped on a city-owned\\nbasketball court. See id. at 536. The city had actual knowledge of leaks in the\\nroof but disputed it had actual knowledge that rain had leaked onto the\\nbasketball court when Rodriguez slipped. See id. at 537. The Supreme Court\\nof Texas held that was irrelevant:\\n\\n\\n 14\\n\\n Case: 18-10289 Document: 00515089951 Page: 15 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n [T]here was evidence that the person in charge of the recreation\\n center knew of the leaks in the roof and knew that it had been\\n raining. Depending on the position of the leaks above the floor and\\n the amount of rain, the jury might have inferred that the person\\n in charge knew that there would be water on the floor.\\nIbid.\\n So here. The Hoyts produced evidence tending to show Lane knew the\\nculverts at its construction site could overflow in a heavy rain. Lane knew\\nabout the drainage problems associated with its work on the culverts. And\\nLane knew the site received 4–6 inches of heavy rain, under freezing\\ntemperatures, the night before Jeffery died. That distinguishes this case from\\nCity of Corsicana v. Stewart, 249 S.W.3d 412 (Tex. 2008) (per curiam), in which\\nthe defendant city did not know a road had flooded, in part because a city\\nofficial was unaware of the rain. See id. at 415–16 & n.3. Therefore, as in\\nRodriguez, a jury reasonably could infer Lane knew there would be ice on the\\nroad. If anything, that inference is easier here because Lane employees\\nrepeatedly worried drivers could slip off the road where Jeffery died—with or\\nwithout ice. As one Lane employee testified, “I just talked to [TxDOT officials]\\nnumerous times that I was afraid that our people working there [in the spot\\nwhere Jeffery died], a car could drive off on top of them.”\\n C.\\n Finally, the district court granted summary judgment for Lane on the\\nHoyts’ gross negligence claim. The Hoyts argue all the evidence they offered\\nto prove premises liability also suffices to show gross negligence. Having\\nvacated the grant of summary judgment on premises liability, we similarly\\nvacate the grant of summary judgment on gross negligence for\\nreconsideration. 5\\n\\n\\n That reconsideration need not include the Hoyts’ alternative argument that Lane’s\\n 5\\n\\nconcessions regarding material disputes of fact in state court preclude summary judgment in\\n 15\\n\\n Case: 18-10289 Document: 00515089951 Page: 16 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n * * *\\n The district court did not err by denying the Hoyts’ motions for remand\\nbut did err by granting Lane’s motion for summary judgment. The judgment\\nis AFFIRMED in part, VACATED in part, and REMANDED for further\\nproceedings consistent with this opinion.\\n\\n\\n\\n\\nfederal court. Neither of the doctrines the Hoyts invoke—judicial admissions and evidentiary\\nadmissions—applies to concessions of law. “[W]hether a genuine dispute concerning a\\nmaterial fact exists is itself a question of law that must be decided by the court. It does not\\ndepend upon what either or both of the parties may have thought about the matter.” 10A\\nCHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2720 (4th ed. 2019); see\\nalso John v. Louisiana, 757 F.2d 698, 712 (5th Cir. 1985). “[A] statement of legal opinion . . .\\nis not a judicial admission.” McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 682 (7th Cir. 2002);\\nsee also Anderson v. Comm’r of Internal Revenue, 698 F.3d 160, 167 (3d Cir. 2012); Roger\\nMiller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 394 (6th Cir. 2007); N.Y. State\\nNat’l Org. for Women v. Terry, 159 F.3d 86, 97 n.7 (2d Cir. 1998). “[A]nd legal conclusions\\nmay not be used as evidentiary admissions.” W.V. Realty, Inc. v. N. Ins. Co. of N.Y., 334 F.3d\\n306, 316 (3d Cir. 2003); see also Incase Inc. v. Timex Corp., 488 F.3d 46, 56 (1st Cir. 2007).\\nTherefore, Lane’s state court concessions do not help the Hoyts here.\\n\\n 16\\n\\n Case: 18-10289 Document: 00515089951 Page: 17 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4432915/\", \"author_raw\": \"ANDREW S. OLDHAM, Circuit Judge:\"}, {\"author\": \"HAYNES, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"HAYNES, Circuit Judge, dissenting:\\n I respectfully dissent from the majority opinion’s determination that we\\nhave jurisdiction in this case. Accordingly, I would vacate the district court’s\\njudgment and remand to the district court to remand to state court without\\nreaching the merits.\\n My disagreement centers on the determination as to C.E.N. under the\\nvoluntary-involuntary rule. Here, the state court issued an order (the “C.E.N.\\nOrder”) granting summary judgment in favor of C.E.N. The Hoyts did not\\nappeal at that point but, of course, the summary judgment was not final given\\nthe presence of other defendants. See Bison Bldg. Materials, Ltd. v. Aldridge,\\n422 S.W.3d 582, 585 (Tex. 2012) (“A judgment is final for purposes of appeal ‘if\\nand only if either it actually disposes of all claims and parties then before the\\ncourt . . . or it states with unmistakable clarity that it is a final judgment as to\\nall claims and all parties.’” (quoting Lehmann v. Har–Con Corp., 39 S.W.3d\\n191, 192–93 (Tex. 2001))). In denying the Hoyts’ second motion to remand, the\\ndistrict court noted that the Hoyts did not argue they could or would appeal\\nthe district court’s grant of C.E.N.’s summary judgment motion. Without citing\\nany authority, the court concluded that the Hoyts had “apparently abandoned\\nthe right to do so by agreeing with C.E.N. that costs as between them will be\\nborne by the party incurring same,” where “[t]he state court had ordered that\\nC.E.N. recover its costs from plaintiffs.”\\n The district court was incorrect. Nothing prevents the Hoyts from\\nappealing the C.E.N. Order if the case is remanded. 1 In granting C.E.N.’s\\n\\n\\n\\n 1 Lane does not explain how this court would have jurisdiction over the state court\\npartial judgment in favor of C.E.N. In other words, if the Hoyts had named C.E.N. in the\\nappeal to this court, how could this court have reversed the state court decision? Cf. D.C.\\nCourt of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923).\\nC.E.N.’s presence in this case raises a question not of removal procedure, but of jurisdiction\\nitself: if C.E.N. is still a party, then diversity is not complete, so diversity jurisdiction does\\n 17\\n\\n Case: 18-10289 Document: 00515089951 Page: 18 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nmotion for summary judgment, the state court did not dismiss C.E.N. from the\\nsuit; instead, it entered a take-nothing judgment in C.E.N.’s favor. If winning\\na case makes you a non-party to that case, there could never be an appeal. The\\ndistrict court’s conclusion is based upon an agreement that addresses only\\ncosts and does not state that the case is settled or that the Hoyts will not\\nappeal. 2 Had there never been a removal, the Hoyts could have appealed the\\nsummary judgment to the state court of appeals once the rest of the case was\\nconcluded and a final judgment entered. See Aldridge, 422 S.W.3d at 585\\n(noting that “Texas appellate courts only have jurisdiction to review final\\njudgments”).\\n Lane did not assert in its notice of removal that the Hoyts had\\nfraudulently joined C.E.N. or any other resident defendant. Instead, Lane\\nclaimed only that removal was proper based on the bad faith exception in 28\\n\\n\\n\\n\\nnot exist. See 28 U.S.C. § 1332(a). Because C.E.N.’s presence in this case is jurisdictional,\\nthe Hoyts have not waived their argument that C.E.N. is still in the case. See Caterpillar\\nInc. v. Lewis, 519 U.S. 61, 73 (1996) (recognizing that diversity goes to subject matter\\njurisdiction); see also Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales, Inc., 666 F.3d\\n932, 935 (5th Cir. 2012) (“A lack of subject matter jurisdiction may be raised at any time and\\nmay be examined for the first time on appeal.”).\\n The majority opinion relies on out-of-circuit cases to conclude that C.E.N. was no\\nlonger a party to the case after it won summary judgment. But in Poulos v. Naas Foods, Inc.,\\nthe Seventh Circuit did not conclude that summary judgment in a party’s favor removed that\\nparty from a case; instead, it held that an exception to the voluntary-involuntary rule applied\\nsuch that removal was proper. 959 F.2d 69, 70, 74 (7th Cir. 1992). Moreover, we are not\\nbound to follow out-of-circuit decisions, and the majority opinion points to no precedent from\\nthe Supreme Court or our court to support its conclusion.\\n 2 The agreement, signed one week after the C.E.N. summary judgment was granted,\\nstates: “This letter will set out our Rule 11 Agreement regarding the court costs reflected in\\n[the summary judgment order]. . . . C.E.N. agrees that it will not seek to collect the court\\ncosts awarded to it in that order from Plaintiffs. Instead, C.E.N. and Plaintiffs agree to treat\\nthe summary judgment order as if it stated ‘All costs with regard to C.E.N. . . . shall be paid\\nby party incurring same.’” Rule 11 is the Texas Rule of Civil Procedure requiring agreements\\namong parties or counsel to be in writing and signed. See TEX. R. CIV. P. 11. Nothing here\\nwould evince a full settlement of the case or be enforceable as such. At oral argument, the\\nparties confirmed there was no settlement of the entire case with C.E.N.\\n 18\\n\\n Case: 18-10289 Document: 00515089951 Page: 19 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nU.S.C. § 1446(c). 3 The first time Lane alleged that the Hoyts had fraudulently\\njoined C.E.N. was in response to the Hoyts’ second motion to remand. The\\nHoyts responded that Lane had waived its right to assert fraudulent joinder as\\na basis for removal, and a party cannot belatedly rely on a previously\\nunmentioned ground for removal.\\n I agree. Section 1446(a) requires a statement of the grounds for removal,\\nand fraudulent joinder of C.E.N. was not listed. See 28 U.S.C. § 1446(a)\\n(requiring a notice of removal to contain “a short and plain statement of the\\ngrounds for removal”); see also Wood v. Crane Co., 764 F.3d 316, 323 (4th Cir.\\n2014) (stating that after thirty-day removal deadline, “[c]ourts have no\\ndiscretion to permit amendments furnishing new allegations of a jurisdictional\\nbasis”); Ervast v. Flexible Prods. Co., 346 F.3d 1007, 1012 n.4 (11th Cir. 2003)\\n(“Flexible argues, tardily, in its appellate brief, that there also exists diversity\\njurisdiction . . . . Although that may be the case, we decline the invitation to\\nexercise jurisdiction on that basis because Flexible had the burden to plead\\nthis basis in its notice of removal, and it did not.”). Lane has waived the\\nargument. 4\\n Even if this argument is not waived, C.E.N. was not improperly joined.\\nWe recently addressed the standard for improper joinder in Flagg v. Stryker\\nCorp., 819 F.3d 132 (5th Cir. 2016) (en banc). “Ordinarily, diversity\\njurisdiction requires complete diversity—if any plaintiff is a citizen of the same\\nState as any defendant, then diversity jurisdiction does not exist.” Id. at 136.\\n\\n\\n 3 Section 1446(c) provides: “A case may not be removed under subsection (b)(3) on the\\nbasis of jurisdiction conferred by section 1332 more than 1 year after commencement of the\\naction, unless the district court finds that the plaintiff has acted in bad faith in order to\\nprevent a defendant from removing the action.”\\n 4 Footnote 2 of the majority opinion overlooks the fact that, because C.E.N. was still a\\nparty to the case, improper joinder was a necessary element that Lane should have pleaded.\\nIf C.E.N. was not improperly joined, then complete diversity did not exist at the time of\\nremoval and the district court did not have jurisdiction over the case. See 28 U.S.C. § 1332(a).\\n 19\\n\\n Case: 18-10289 Document: 00515089951 Page: 20 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n“However, if the plaintiff improperly joins a non-diverse defendant, then the\\ncourt may disregard the citizenship of that defendant, dismiss the non-diverse\\ndefendant from the case, and exercise subject matter jurisdiction over the\\nremaining diverse defendant.” Id. A “non-diverse party is improperly joined\\nif the plaintiff is unable ‘to establish a cause of action against the non-diverse\\nparty in state court.’” Id. (quoting Smallwood v. Ill. Cent. R.R. Co., 385 F.3d\\n568, 573 (5th Cir. 2004) (en banc)). “Thus, the test for improper joinder ‘is\\nwhether the defendant has demonstrated that there is no possibility of\\nrecovery by the plaintiff against an in-state defendant.’” Flagg, 819 F.3d at\\n136 (emphasis added) (quoting Smallwood, 385 F.3d at 573). We have stated:\\n In most cases, to determine whether the plaintiff has\\n any possibility of recovery against the non-diverse\\n defendant, the court should “conduct a Rule 12(b)(6)-\\n type analysis, looking initially at the allegations of the\\n complaint to determine whether the complaint states\\n a claim under state law against the in-state defendant.\\n Ordinarily, if a plaintiff can survive a Rule 12(b)(6)\\n challenge, there is no improper joinder.”\\nFlagg, 819 F.3d at 136 (quoting Smallwood, 385 F.3d at 573). 5\\n The district court did not conduct a Rule 12(b)(6) analysis, relying\\ninstead solely on the fact that the Hoyts lost on summary judgment and finding\\nit “tantamount to a determination that C.E.N. had been improperly joined.” In\\nso doing, the district court quoted Smallwood, but did not actually apply it.\\nThe district court based its conclusion off the fact that “C.E.N. did not do any\\nwork on the culvert where [Mr. Hoyt] was killed prior to the accident” and its\\nperception of the state court judge who ruled on the summary judgment\\n\\n\\n\\n 5 While there are limited circumstances where a district court can “pierce the\\npleadings,” to make a Smallwood determination, see Flagg, 819 F.3d at 136–37, the district\\ncourt did no such thing. It relied instead upon its own conclusion that the state court judge\\nwould not grant summary judgment absent no possibility of recovery.\\n 20\\n\\n Case: 18-10289 Document: 00515089951 Page: 21 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nmotion. It did not elaborate on why C.E.N.’s supposed failure to do any work\\non that culvert was necessarily fatal to the Hoyts’ claims. Indeed, the district\\ncourt did not discuss the Hoyts’ theory of recovery against C.E.N. at all.\\nInstead, the district court cited this court’s decisions in Crockett v. R.J.\\nReynolds Tobacco Co., 436 F.3d 529 (5th Cir. 2006), and Morgan v. Chase Home\\nFin., LLC, 306 F. App’x 49 (5th Cir. 2008), to conclude that it could rely on\\nstate court rulings in determining improper joinder.\\n Both cases are distinguishable. Crockett involved the permissive joinder\\nof parties under FED. R. CIV. P. 20(a). 6 436 F.3d at 533. In Morgan, the district\\ncourt itself determined that the plaintiff had fraudulently joined the\\nnondiverse defendant because Texas law explicitly barred the plaintiff’s only\\ncause of action. 306 F. App’x at 53. There is no indication that the Morgan\\ndistrict court relied on the state court’s dismissal of the plaintiff’s claim. Thus,\\nthe district court cited no relevant precedent for its decision to forego the Rule\\n12(b)(6)-like improper joinder analysis before piercing the pleadings.\\n Lane does not explain why this court should not analyze fraudulent\\njoinder under the “Rule 12(b)(6)-type analysis” set forth in Smallwood and\\nFlagg. 7 Like the district court, Lane relies on Crockett and Morgan to assert\\nthat a federal court can rely on state court decisions to find improper joinder.\\nBut as stated above, both Crockett and Morgan are distinguishable. 8\\n\\n\\n 6 FED. R. CIV. P. 20(a) is not at issue here.\\n 7The majority opinion relies upon out-of-circuit cases, but we are bound by our own\\nprecedent which requires a “12(b)(6)-type analysis,” see Flagg, 819 F.3d at 136, and does not\\nsupport a conclusion that we are bound by state trial court decisions in conducting this\\nanalysis.\\n 8 Even if piercing the pleadings was appropriate in this case, Lane does not show why\\nthe state court’s summary judgment order is indeed tantamount to a finding of improper\\njoinder. The state court provided no analysis to support its ruling. Further, Lane does not\\ndemonstrate that C.E.N.’s apparent failure to do any work on the culvert where Mr. Hoyt\\ncrashed during the relevant period rebuts the Hoyts’ claims. The Hoyts argue that C.E.N.\\ndid not properly dispose of construction debris at another culvert, which led to the debris\\n 21\\n\\n Case: 18-10289 Document: 00515089951 Page: 22 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n If we apply the proper standard, the district court erred in concluding\\nthat the Hoyts fraudulently joined C.E.N. In their second amended petition,\\nthe Hoyts claim that C.E.N. was negligent in conducting its construction zone\\noperation and maintenance activities. Lane does not argue that the Hoyts’\\nclaims against C.E.N. could not survive a Rule 12(b)(6)-like analysis. The state\\ndistrict court’s grant of summary judgment is not to the contrary, as it does not\\nmean the Hoyts had “no possibility of recovery” against C.E.N. Flagg, 819 F.3d\\nat 136 (quoting Smallwood, 385 F.3d at 573).\\n In sum, Lane failed to demonstrate that the Hoyts improperly joined\\nC.E.N. Accordingly, the district court abused its discretion when it applied the\\nwrong legal standard to conclude otherwise, seemingly resting on its own\\nperception of how that particular state court judge decides summary\\njudgments. Because the voluntary-involuntary rule precluded removal and\\nLane did not show that the Hoyts fraudulently joined C.E.N., I conclude that\\nwe should vacate the district court’s judgment and remand to the district court\\nto remand to state court. From the judgment finding jurisdiction, I respectfully\\ndissent. 9\\n\\n\\n\\n\\nbeing dumped into, and causing the accumulated water in, the culvert where Mr. Hoyt\\ncrashed.\\n 9 Because I conclude we lack jurisdiction, I would not reach the merits of the case.\\nHowever, given the majority opinion’s conclusion that we have jurisdiction, which means we\\nreach the merits, I agree with the analysis of the merits.\\n 22\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4432915/\", \"author_raw\": \"HAYNES, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"JONES"},"judge2":{"kind":"string","value":"HAYNES"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JONES\": \", Circuit\", \"HAYNES\": \", Circuit\", \"OLDHAM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4655662/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Lindsey Hoyt v. Lane Construction Corporati\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-23\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10289 Document: 00515089951 Page: 1 Date Filed: 08/23/2019\n\n\n\n\n REVISED August 23, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n June 10, 2019\n No. 18-10289\n Lyle W. Cayce\n Clerk\nLINDSEY HOYT, Individually, and Independently as Administrator of the\nEstate of Jeffery Hoyt and as Next Friend of Joel Hoyt, Evan Hoyt, and Katie\nHoyt; PATRICK HOYT,\n\n Plaintiffs-Appellants,\n\nv.\n\nTHE LANE CONSTRUCTION CORPORATION,\n\n Defendant-Appellee.\n\n\n\n\n Appeals from the United States District Court\n for the Northern District of Texas\n\n\nBefore JONES, HAYNES, and OLDHAM, Circuit Judges.\nANDREW S. OLDHAM, Circuit Judge:\n We must decide whether the district court erred by refusing to remand\nthis case to state court. It did not. Next, we must decide whether the district\ncourt erred by granting summary judgment to the defendant. It did.\n I.\n On December 29, 2015, Jeffery Hoyt hit a patch of ice while driving on\nFM 2264 in Wise County, Texas. Jeffery slid off the road. His car landed\nupside down in an adjacent body of water. Tragically, Jeffery drowned. Less\n\n Case: 18-10289 Document: 00515089951 Page: 2 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\nthan an hour later, a second driver hit the same patch of ice. The second driver\nlikewise slid off the road. And the second driver landed directly on top of\nJeffery’s submerged vehicle. That apparently saved the second driver from\ndrowning. First responders rescued him and, in the process, discovered\nJeffery’s vehicle and body.\n On September 20, 2016, members of Jeffery’s family (“the Hoyts”) filed\nsuit in Texas state court. They sued C.E.N. Concrete Construction Co., Storm\nWater Management, Inc., and the Lane Construction Corporation. The Hoyts,\nC.E.N., and Storm are citizens of Texas. Lane is not. The Hoyts contended all\nthree companies had performed construction work on FM 2264 and caused ice\nto form at the crash site. The defendants moved for summary judgment. The\nstate district court granted C.E.N.’s motion and entered a “take nothing”\njudgment in its favor.\n The Hoyts and Storm engaged in settlement discussions. They never\nreached agreement. Yet on September 22, 2017—one year and two days after\nthe suit began—the Hoyts voluntarily dismissed their claims against Storm.\nThe Hoyts received no compensation from Storm.\n Five days later, Lane removed the case to federal court on the theory\nthat it now fit within federal diversity jurisdiction. See 28 U.S.C. § 1332(a)(1);\nLincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (requiring “complete\ndiversity”). The next day, the Hoyts filed an emergency motion to remand.\nThey argued Lane’s notice of removal was untimely. The federal district court\ndenied that motion. In a second motion to remand filed about a month later,\nthe Hoyts argued the voluntary-involuntary rule prohibited removal because\nC.E.N. had been dismissed against their wishes. The district court denied that\nmotion too.\n Lane moved for summary judgment on the Hoyts’ claims for premises\nliability and gross negligence. The federal district court granted the motion.\n 2\n\n Case: 18-10289 Document: 00515089951 Page: 3 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\nIt dismissed the claims against Lane with prejudice. The Hoyts timely\nappealed.\n II.\n The Hoyts argue we must remand the case to state court. We disagree.\nThe district court properly rejected both remand motions.\n A.\n The Hoyts’ first motion for remand turns on timeliness. Under 28 U.S.C.\n§ 1446(c), the defendant in a diversity case has one year following the\ncommencement of an action to remove it. But Congress created an exception\nto this time bar where “the district court finds that the plaintiff has acted in\nbad faith in order to prevent a defendant from removing the action.” Id.\n§ 1446(c)(1). Here, the district court found the Hoyts acted in bad faith by\nimproperly joining Storm (which prevented complete diversity and hence\nprecluded removal). 1 The district court therefore denied the Hoyts’ motion to\nremand under § 1446(c)’s time bar.\n Although we review the denial of a motion to remand de novo, we review\nthe underlying finding of bad faith for clear error. Spear Mktg., Inc. v.\nBancorpSouth Bank, 791 F.3d 586, 591 (5th Cir. 2015). We hold (1) the district\ncourt’s bad-faith finding was not clearly erroneous, and (2) the Hoyts cannot\navoid that result by relying on cases that predate Congress’s enactment of the\nbad-faith exception to § 1446(c)(1)’s time bar.\n 1.\n Exercising its role as factfinder, the district court found the Hoyts “knew\nmonths beforehand that the evidence would not support the claims against\n\n\n 1 This Court has “adopt[ed] the term ‘improper joinder’ as being more consistent with\nthe statutory language than the term ‘fraudulent joinder,’ ” but “there is no substantive\ndifference between the two terms.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1\n(5th Cir. 2004) (en banc). Thus, we use the term “improper joinder” except where quoting\nother authorities.\n 3\n\n Case: 18-10289 Document: 00515089951 Page: 4 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\nStorm.” That was not clear error. The Hoyts dismissed Storm a mere two days\nafter the one-year deadline expired. They did so without receiving any\nconsideration from Storm. Before that dismissal, the Hoyts seem to have\npursued their claim against Storm only half-heartedly. Their witness list for\ntrial did not include any fact witnesses from Storm. And the Hoyts’ expert\nwitnesses made no serious efforts to establish Storm’s liability. All of this\nsuggests the Hoyts kept Storm in the case for one purpose and one purpose\nonly—to prevent removal during § 1446(c)’s one-year removal period. Two\ndays after accomplishing that purpose, the Hoyts dismissed Storm for free.\n The Hoyts’ response is unpersuasive. In the district court, the Hoyts\nsubmitted an affidavit from their attorney to describe allegedly strategic\nreasons for their decision to dismiss Storm. But these explanations relate to\nwhy the Hoyts were reluctant to go to trial against Storm or accept Storm’s\n(apparently low) settlement offer. They do not explain why the Hoyts waited\nuntil just two days after the one-year deadline to dismiss Storm. And while\nthe Hoyts claim they dismissed Storm after their settlement discussions came\nto naught, the district court found it “suspicious[ ]” the Hoyts did not clarify\nwhen “the alleged discussions with Storm” took place. We agree.\n Nor can the Hoyts win a remand by raising “fact issues” regarding their\ngood faith. True, “we resolve all contested factual issues . . . in favor of the\nplaintiff ” when determining whether it improperly joined a non-diverse\ndefendant. Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th\nCir. 2007). That makes sense because, when considering whether “the plaintiff\n[is able] to establish a cause of action against the non-diverse party in state\ncourt,” the question is what the plaintiff might prove in the future. Ibid.; see\nGuillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005); Smallwood v.\nIll. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc). When it comes\nto bad faith, by contrast, the question is what motivated the plaintiff in the\n 4\n\n Case: 18-10289 Document: 00515089951 Page: 5 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\npast—that is, whether the plaintiff ’s litigation conduct meant “to prevent a\ndefendant from removing the action.” 28 U.S.C. § 1446(c)(1). The district court\nfound as a matter of fact the Hoyts acted in bad faith. The Hoyts failed to carry\ntheir burden to prove that finding was clearly erroneous.\n 2.\n The Hoyts also argue we must reverse because their litigation conduct\ndoes not satisfy the exception we created in Tedford v. Warner-Lambert Co.,\n327 F.3d 423 (5th Cir. 2003). But Tedford pre-dates Congress’s enactment of\nthe bad-faith exception in § 1446(c)(1), and it therefore does not control.\n Before 2011, § 1446 prohibited defendants like Lane from removing a\ncase “more than 1 year after commencement of the action”—full stop. 28 U.S.C.\n§ 1446(b) (2006). The statutory text contained no exceptions. Believing this\nold version of § 1446(b) was “not inflexible,” however, Tedford ruled “the\nconduct of the parties may affect whether it is equitable to strictly apply the\none-year limit.” 327 F.3d at 426. In light of the plaintiff’s “efforts to\nmanipulate statutory rules,” the Tedford Court concluded, “[e]quity demands\n[the plaintiff ] be estopped from seeking to remand the case on the basis of the\none-year limit in § 1446(b).” Id. at 428 & n.13.\n Other courts disagreed. They held that § 1446 did not allow for equitable\ntolling or estoppel. See, e.g., Brock v. Syntex Labs., Inc., No. 92-5740, 1993 WL\n389946, at *1 (6th Cir. Oct. 1, 1993); Kinabrew v. Emco-Wheaton, Inc., 936 F.\nSupp. 351, 352 n.1 (M.D. La. 1996) (collecting cases). This split persisted until\n2011, when Congress amended § 1446. See Federal Courts Jurisdiction and\nVenue Clarification Act of 2011, Pub. L. No. 112-63, § 103(b), 125 Stat. 758,\n760 (2011). By adding the bad-faith exception to the one-year deadline,\nCongress resolved the conflict.\n If Congress wanted to resolve the conflict by adopting the Tedford\nstandard, it could have done so. Cf. 42 U.S.C. § 2000bb(b)(1) (listing the\n 5\n\n Case: 18-10289 Document: 00515089951 Page: 6 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\nrestoration of “the compelling interest test as set forth in Sherbert v. Verner,\n374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)” as a purpose\nof the Religious Freedom Restoration Act). But it did not. Congress instead\nchose to replace Tedford’s equitable-estoppel principle with a “bad faith”\nstandard. See 28 U.S.C. § 1446(c)(1). And we presume that choice of different\ntext carries with it a choice of different meaning. Cf. Henson v. Santander\nConsumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (“[W]hen we’re engaged in\nthe business of interpreting statutes we presume differences in language . . .\nconvey differences in meaning.”). We therefore no longer apply the old § 1446\nand the Tedford exception we created. We now apply the new § 1446 and the\nbad-faith exception Congress created. See Thompson v. Deutsche Bank Nat’l\nTr. Co., 775 F.3d 298, 303 (5th Cir. 2014).\n Our holding is consistent with the principle that “Congress is vested with\nthe power to prescribe the basic procedural scheme under which claims may\nbe heard in federal courts.” Patsy v. Bd. of Regents, 457 U.S. 496, 501 (1982).\nOnce Congress has prescribed those procedures, we cannot add to them. See,\ne.g., Ross v. Blake, 136 S. Ct. 1850, 1857 (2016) (holding the Prison Litigation\nReform Act does not admit of judge-made exceptions). We do not exalt judge-\nmade doctrines over valid laws. See Am. Express Co. v. Italian Colors Rest.,\n570 U.S. 228, 235–39 (2013) (refusing to apply “a judge-made exception to the\nFAA” broadly because “[t]he FAA does not sanction such a judicially created\nsuperstructure”); CLS Bank Int’l v. Alice Corp. Pty., 717 F.3d 1269, 1303 (Fed.\nCir. 2013) (en banc) (Rader, C.J., concurring in part and dissenting in part)\n(“[J]udge-made exceptions to properly enacted statutes are to be narrowly\nconstrued.”).\n It does not matter the House Report accompanying the 2011 statute cites\nTedford. That’s for two reasons. First, when “a statute’s text is clear, courts\nshould not resort to legislative history.” Adkins v. Silverman, 899 F.3d 395,\n 6\n\n Case: 18-10289 Document: 00515089951 Page: 7 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\n403 (5th Cir. 2018). And we think the new § 1446(c)(1) is clear. But second, in\nall events, the report cites Tedford only once, and only then to explain the\nconflict the amendment would resolve. See H.R. REP. 112-10, at 15 (2011), as\nreprinted in 2011 U.S.C.C.A.N. 576, 580. The report does not say the bill would\nadopt the Tedford standard. Instead, it refers to the statutory bad-faith\nexception as a “new standard.” Ibid. Relying on a single reference to Tedford—\nwithout accounting for the author’s description of the bad-faith standard as\n“new”—would be “akin to ‘looking over a crowd and picking out your friends.’ ”\nPatricia M. Wald, Some Observations on the Use of Legislative History in the\n1981 Supreme Court Term, 68 IOWA L. REV. 195, 214 (1983) (quoting Harold\nLeventhal’s description of problems with citing legislative history).\n Thus, even if the Hoyts’ litigation conduct would not satisfy the old\nTedford standard (an issue we need not decide), that is no reason to reverse\nthe district court’s finding of “bad faith” under the new § 1446(c)(1).\n B.\n The Hoyts’ second motion to remand turned on the voluntary-\ninvoluntary rule. Removal was improper, they said, because diversity\njurisdiction existed only after C.E.N. exited the case, and because C.E.N. exited\nthe case pursuant to an opposed motion for summary judgment, not a\nvoluntary act of the Hoyts. The Hoyts’ argument implicates the federal\nremoval statute, a judge-made exception to the statute, and a judge-made\nexception to that exception. We explain each in turn.\n We start with the only easy part—the statutory text. Section 1446(b)(3)\nis the provision governing removal of a case that becomes removable after the\ninitial pleading is filed. Subject to exceptions not applicable here:\n if the case stated by the initial pleading is not removable, a notice\n of removal may be filed within 30 days after receipt by the\n defendant . . . of a copy of an amended pleading, motion, order or\n\n 7\n\n Case: 18-10289 Document: 00515089951 Page: 8 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\n other paper from which it may first be ascertained that the case is\n one which is or has become removable.\n28 U.S.C. § 1446(b)(3).\n One might think a case is “removable” under § 1446 so long as it “may\nbe removed” under § 1441. Indeed, courts generally understand § 1441 as\ndefining removability. See Teamsters Local 404 Health Servs. & Ins. Plan v.\nKing Pharm., Inc., 906 F.3d 260, 266 (2d Cir. 2018) (“[D]efin[ing] what kind of\nproceedings are removable . . . is the ambit of § 1441.”); Medlin v. Boeing Vertol\nCo., 620 F.2d 957, 964 (3d Cir. 1980) (“Section 1441(b) . . . defin[es]\nremovability . . . .”). And with exceptions not relevant here, § 1441 provides\n“any civil action brought in a State court of which the district courts of the\nUnited States have original jurisdiction, may be removed.” 28 U.S.C.\n§ 1441(a).\n But this is an area thick with binding precedent. And precedent tells us\nremovability under §§ 1441 and 1446 is subject to a judge-made exception:\n“[W]here the case is not removable because of joinder of defendants,” only “the\nvoluntary dismissal or nonsuit by [the plaintiff ] of a party or of parties\ndefendant” can convert a nonremovable case into a removable one. Great N.\nRy. Co. v. Alexander, 246 U.S. 276, 281 (1918). We have described this\n“judicially-created voluntary-involuntary rule” as providing “an action\nnonremovable when commenced may become removable thereafter only by the\nvoluntary act of the plaintiff.” Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d\n529, 532 (5th Cir. 2006) (quotation omitted).\n The Supreme Court developed this principle before § 1446 expressly\nprovided for removal of cases that were not initially removable. But in 1949,\nCongress amended § 1446(b) to allow removal “after receipt . . . of an amended\npleading, motion, order or other paper from which it may first be ascertained\nthat the case is . . . removable.” Act of May 24, 1949, Pub. L. No. 81-72, § 83(a),\n\n 8\n\n Case: 18-10289 Document: 00515089951 Page: 9 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\n63 Stat. 89, 101 (1949). Then we held the new § 1446(b) did not abrogate the\nvoluntary-involuntary rule. See Weems v. Louis Dreyfus Corp., 380 F.2d 545,\n547–48 (5th Cir. 1967).\n The judicially created voluntary-involuntary rule is itself subject to a\njudicially created exception for improper joinder. See Great N. Ry., 246 U.S. at\n282 (recognizing the voluntary-involuntary rule applies only “in the absence of\na fraudulent purpose to defeat removal”). When the non-diverse defendant\nwas improperly joined, “the voluntary-involuntary rule is inapplicable.”\nCrockett, 436 F.3d at 532.\n Beneath this doctrinal thicket lurks a question presented—namely,\nwhether C.E.N. was improperly joined. 2 We hold it was. Therefore, the\nvoluntary-involuntary rule does not apply. And because the voluntary-\n\n\n 2 The Hoyts argue we should not consider the improper-joinder exception because\nLane forfeited the issue by failing to include it in its notice of removal. A notice of removal\nmust “contain[ ] a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a).\nLane’s notice of removal identified diversity jurisdiction as the ground for removal and\nexplained that complete diversity existed because the Texas defendants were no longer in the\ncase. Lane first raised improper joinder in its response to the Hoyts’ second motion to\nremand. In this case at least, improper joinder was not a ground for removal. It was a\nrebuttal to the Hoyts’ argument that the voluntary-involuntary rule prevented removal. In\nother words, it was an exception to an exception to the ground of removal. We do not require\na litigant to anticipatorily rebut all potential arguments his adversary may raise. Failing to\ndo so is not a forfeiture. See R.J. Corman Derailment Servs., LLC v. Int’l Union of Operating\nEng’rs, Local Union 150, 335 F.3d 643, 650 (7th Cir. 2003) (“[A] party cannot waive something\nthat it does not know is at issue.”); NLRB v. NPC Int’l, Inc., No. 13-0010, 2017 WL 634713,\nat *5 (W.D. Tenn. Feb. 16, 2017) (“A moving party does not waive reply arguments merely\nbecause it fails to accurately predict the contentions of a responding party.”).\n Neither the Hoyts nor the dissent point to any cases holding to the contrary. Some courts\nhave held a removing defendant forfeits an improper-joinder argument by failing to include\nit in the notice of removal when a non-diverse party remains in the case at the time of\nremoval. See, e.g., Wessel v. Miraglia, No. 4:04-cv-377, 2004 WL 1943776, at *3 (N.D. Tex.\nAug. 31, 2004) (treating improper joinder as a ground that should have been included in a\nnotice of removal). But that rule does not apply where, as here, improper joinder is used as\nan exception to the voluntary-involuntary rule. Thus, we need not decide whether those cases\nare rightly decided. See Pharos Capital Grp., LLC v. Nutmeg Ins. Co., 999 F. Supp. 2d 947,\n953 (N.D. Tex. 2014) (“[E]ven though it was brought up for the first time in its response to\nthe Motion to Remand, [the removing defendant’s] improper joinder argument was not\nwaived.”).\n 9\n\n Case: 18-10289 Document: 00515089951 Page: 10 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\ninvoluntary rule does not apply, the case was removable under §§ 1441 and\n1446.\n Improper joinder “can be established by demonstrating,” among other\nthings, the “inability of the plaintiff to establish a cause of action against the\nnon-diverse party in state court.” Crockett, 436 F.3d at 532 (quotation\nomitted). Assessing a plaintiff ’s ability to establish a cause of action against a\nnon-diverse defendant in state court turns on whether the state courts have\nalready ruled on the merits of the plaintiff ’s claim. If a state court has not yet\nruled, the federal court must ask whether “there [is] any reasonable possibility\nthat a state court would rule against the non-diverse defendant.” Poulos v.\nNaas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). “If a state court has come to\njudgment,” the federal court must ask whether “there [is] any reasonable\npossibility that the judgment will be reversed on appeal.” Ibid.; see also\nKnudson v. Sys. Painters, Inc., 634 F.3d 968, 980 n.11 (8th Cir. 2011); Arthur\nv. E.I. du Pont, 798 F. Supp. 367, 369 (S.D. W. Va. 1992). 3\n In this case, the state court had granted C.E.N.’s motion for summary\njudgment. When C.E.N. won summary judgment, it exited the case. See, e.g.,\nPoulos, 959 F.2d at 70 (describing a party who won summary judgment in state\n\n\n\n 3Apparently rejecting this framework, the dissent would conduct a “Rule 12(b)(6)-type\nanalysis” and disregard the state court’s grant of summary judgment. Post at 20–22 (Haynes,\nJ., dissenting). Under this Court’s precedent, a “Rule 12(b)(6)-type analysis” applies when a\nfederal court is considering whether to dismiss a non-diverse defendant as improperly joined.\nFlagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016) (en banc); Smallwood, 385 F.3d at\n572–73. But it does not necessarily apply when a state court has already dismissed the non-\ndiverse defendant. Cf. Crockett, 436 F.3d at 533. It would be passing strange for a federal\ncourt asking whether the plaintiff can “establish a cause of action against the non-diverse\nparty in state court,” Flagg, 819 F.3d at 136 (quotation omitted), to ignore that “a state court\nhas come to judgment” on that very question, Poulos, 959 F.2d at 73; see also Knudson, 634\nF.3d at 980 n.11. “We are always chary to create a circuit split,” Gahagan v. U.S. Citizenship\n& Immigration Servs., 911 F.3d 298, 304 (5th Cir. 2018) (quotation omitted), and the dissent\nprovides no compelling reason to do so here. The bottom line is this: for the reasons we have\nexplained, the Hoyts’ case against C.E.N. was not winnable because they could not appeal\nthe state court’s dismissal.\n 10\n\n Case: 18-10289 Document: 00515089951 Page: 11 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\ncourt as “gone from the case”); Higgins v. E.I. DuPont de Nemours & Co., 863\nF.2d 1162, 1166 (4th Cir. 1988) (explaining a “non-diverse party is eliminated\nfrom the state action by voluntary or involuntary dismissal” in state court).\nThe federal district court concluded there was no possibility the state court’s\ngrant of summary judgment to C.E.N. would be reversed on appeal. The Hoyts\nhad not argued they “could or would pursue an appeal of the granting of\nC.E.N.’s motion for summary judgment,” and the district court concluded the\nHoyts “apparently abandoned the right to do so.”\n The Hoyts’ appellate briefs did not challenge the district court’s\nconclusion that they could not appeal the grant of summary judgment to C.E.N.\nAny argument undermining the district court’s conclusion is therefore\nforfeited. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). The Hoyts’\ncounsel did raise the issue at oral argument, but “[a]rguments presented for\nthe first time at oral argument are [forfeited].” Comsat Corp. v. FCC, 250 F.3d\n931, 936 n.5 (5th Cir. 2001).\n When a state court order creates diversity jurisdiction and that order\ncannot be reversed on appeal, our precedent treats the voluntary-involuntary\nrule as inapplicable. See Crockett, 436 F.3d at 533 (“[R]emoval on the basis of\nan unappealed severance, by a state court, of claims against improperly joined\ndefendants is not subject to the voluntary-involuntary rule.”); 14C CHARLES\nALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3723 (Rev. 4th ed.\n2019) (explaining Crockett “makes sense because there is no risk of reversal of\nan unappealed severance order”). In light of the district court’s now-\nunchallengeable ruling that the state court’s dismissal of C.E.N. could not be\nreversed on appeal, we are compelled to conclude C.E.N. was improperly\n\n\n\n\n 11\n\n Case: 18-10289 Document: 00515089951 Page: 12 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\njoined. 4 As a result, the voluntary-involuntary rule did not bar Lane from\nremoving the case to federal court. Therefore, the district court did not err in\ndenying the Hoyts’ second motion to remand.\n III.\n We now consider whether the district court erred by granting Lane’s\nmotion for summary judgment. Applying de novo review, DeVoss v. Sw.\nAirlines Co., 903 F.3d 487, 490 (5th Cir. 2018), we conclude it did.\n A.\n The district court first held Lane is statutorily immune from the Hoyts’\ndamages claims. Texas law provides:\n A contractor who constructs or repairs a highway, road, or street\n for the Texas Department of Transportation [(“TxDOT”)] is not\n liable to a claimant for personal injury, property damage, or death\n arising from the performance of the construction or repair if, at the\n time of the personal injury, property damage, or death, the\n contractor is in compliance with contract documents material to\n the condition or defect that was the proximate cause of the\n personal injury, property damage, or death.\n\n\n\n 4 The dissent says the Hoyts’ forfeiture is irrelevant because the issue is\n“jurisdictional.” Post at 17–18 n.1 (Haynes, J., dissenting). That conflates the rules of\nsubject-matter jurisdiction (which cannot be forfeited) with the rules of removal procedure\n(which can be forfeited). Only Congress can make rules of unforfeitable subject-matter\njurisdiction. See, e.g., Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017).\nBy contrast, the judge-made voluntary-involuntary rule is a forfeitable rule of removal\nprocedure. See Crockett, 436 F.3d at 533 (describing the voluntary-involuntary rule as a\nmatter of “removal jurisdiction”); Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1543 (5th Cir.\n1991) (explaining “improper removal (i.e., lack of removal jurisdiction) . . . is waivable”); see\nalso Higgins, 863 F.2d at 1166 (holding a potential violation of the voluntary-involuntary rule\ndid not deprive a federal district court of jurisdiction); Jones v. CMM of Ind., LLC, No. 05-cv-\n4039, 2006 WL 120085, at *2 n.2 (E.D. La. Jan. 17, 2006) (holding “the voluntary/involuntary\nrule is one of removal procedure rather than subject matter jurisdiction”). In all events, the\nHoyts cannot bring C.E.N. back into the case for an independent reason—namely, their\nclaims against C.E.N. are meritless for all the reasons the district court already gave. See\nHoyt v. Lane, Order on Plaintiffs’ Second Motion to Remand, No. 17-cv-780, Doc. 32, at 4–5\n(Dec. 4, 2017). Their “inability . . . to establish a cause of action against the non-diverse party\nin state court” demonstrates improper joinder by itself. Crockett, 436 F.3d at 532 (quotation\nomitted).\n 12\n\n Case: 18-10289 Document: 00515089951 Page: 13 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\nTEX. CIV. PRAC. & REM. CODE § 97.002. According to the district court, Lane\nperformed its work on FM 2264 pursuant to a TxDOT contract and “did\neverything to follow TxDOT plans.”\n We disagree. On October 27, 2015—nine weeks before Jeffery’s tragic\naccident—Lane performed remedial “erosion control” work alongside FM 2264.\nTxDOT determined this remedial work was necessitated by Lane’s\n“negligence.” Lane was not properly removing “accumulated silt” from the\nconstruction site and instead was “push[ing] off [the silt] along the [right of\nway].” The Hoyts argue this silt caused the pooling of water on FM 2264 that\nkilled Jeffery. To support that argument, the Hoyts submitted expert\ntestimony that Lane’s “[f]ailure to properly install and maintain sediment\ncontrol measures” in accordance with its TxDOT contract caused water to\n“flow[ ] onto the roadway.”\n But that’s not all. On January 15, 2016—two weeks after Jeffery’s tragic\ndeath—TxDOT completed a “Construction Stage Gate Checklist” for the FM\n2264 project. It found Lane failed to install stormwater run-off “control\nmeasures” in accordance with TxDOT specifications. It further found the\n“control measures” were not “performing” or “properly maintained.”\n These record materials—spanning the time period from before Jeffery’s\naccident to after it—raise a material dispute of fact regarding Lane’s\ncompliance or lack thereof with its TxDOT contract. Moreover, statutory\nimmunity under § 97.002 is an affirmative defense on which Lane bore the\nburden of proof. See Brown v. RK Hall Constr., Ltd., 500 S.W.3d 509, 512 (Tex.\nApp.—Texarkana 2016, pet. denied). And Lane failed to show as a matter of\nlaw that its TxDOT-documented negligence before the accident and its TxDOT-\ndocumented inspection deficiencies after the accident did not cause Jeffery’s\ndeath. Therefore, it was error to grant summary judgment on this ground.\n\n\n 13\n\n Case: 18-10289 Document: 00515089951 Page: 14 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\n B.\n The district court next granted summary judgment to Lane on the Hoyts’\npremises-liability claim. It did so on two grounds. We conclude material\ndisputes of fact preclude both.\n First, the district court found the ice patch that killed Jeffery was “a\nnatural formation.” It is true that, under Texas law, “naturally occurring ice\nthat accumulates without the assistance or involvement of unnatural contact\nis not an unreasonably dangerous condition sufficient to support a premises\nliability claim.” Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 414 (Tex.\n2010). Here, however, the Hoyts have pointed to summary judgment evidence\nthat the ice patch on FM 2264 accumulated through unnatural conditions—\nnamely, Lane’s construction activities at the crash site. It submitted an expert\nreport to that effect. Moreover, the State Trooper who responded to the\naccident testified the ice patch that killed Jeffery was the only patch of ice\nalong a 20-mile stretch of highway. The second driver (who also slid off the\nroad and landed on top of Jeffery’s vehicle) testified to the same effect. This\ntestimony—viewed in the light most favorable to the Hoyts—creates a material\ndispute of fact regarding whether the ice patch formed naturally.\n Second, the district court found Lane “did not have actual knowledge of\na dangerous premises condition at the time of [Jeffery’s] accident.” Under\nTexas law, actual knowledge can be proved through direct evidence or\nreasonable inference. For example, in City of San Antonio v. Rodriguez, 931\nS.W.2d 535 (Tex. 1996) (per curiam), the plaintiff slipped on a city-owned\nbasketball court. See id. at 536. The city had actual knowledge of leaks in the\nroof but disputed it had actual knowledge that rain had leaked onto the\nbasketball court when Rodriguez slipped. See id. at 537. The Supreme Court\nof Texas held that was irrelevant:\n\n\n 14\n\n Case: 18-10289 Document: 00515089951 Page: 15 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\n [T]here was evidence that the person in charge of the recreation\n center knew of the leaks in the roof and knew that it had been\n raining. Depending on the position of the leaks above the floor and\n the amount of rain, the jury might have inferred that the person\n in charge knew that there would be water on the floor.\nIbid.\n So here. The Hoyts produced evidence tending to show Lane knew the\nculverts at its construction site could overflow in a heavy rain. Lane knew\nabout the drainage problems associated with its work on the culverts. And\nLane knew the site received 4–6 inches of heavy rain, under freezing\ntemperatures, the night before Jeffery died. That distinguishes this case from\nCity of Corsicana v. Stewart, 249 S.W.3d 412 (Tex. 2008) (per curiam), in which\nthe defendant city did not know a road had flooded, in part because a city\nofficial was unaware of the rain. See id. at 415–16 & n.3. Therefore, as in\nRodriguez, a jury reasonably could infer Lane knew there would be ice on the\nroad. If anything, that inference is easier here because Lane employees\nrepeatedly worried drivers could slip off the road where Jeffery died—with or\nwithout ice. As one Lane employee testified, “I just talked to [TxDOT officials]\nnumerous times that I was afraid that our people working there [in the spot\nwhere Jeffery died], a car could drive off on top of them.”\n C.\n Finally, the district court granted summary judgment for Lane on the\nHoyts’ gross negligence claim. The Hoyts argue all the evidence they offered\nto prove premises liability also suffices to show gross negligence. Having\nvacated the grant of summary judgment on premises liability, we similarly\nvacate the grant of summary judgment on gross negligence for\nreconsideration. 5\n\n\n That reconsideration need not include the Hoyts’ alternative argument that Lane’s\n 5\n\nconcessions regarding material disputes of fact in state court preclude summary judgment in\n 15\n\n Case: 18-10289 Document: 00515089951 Page: 16 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\n * * *\n The district court did not err by denying the Hoyts’ motions for remand\nbut did err by granting Lane’s motion for summary judgment. The judgment\nis AFFIRMED in part, VACATED in part, and REMANDED for further\nproceedings consistent with this opinion.\n\n\n\n\nfederal court. Neither of the doctrines the Hoyts invoke—judicial admissions and evidentiary\nadmissions—applies to concessions of law. “[W]hether a genuine dispute concerning a\nmaterial fact exists is itself a question of law that must be decided by the court. It does not\ndepend upon what either or both of the parties may have thought about the matter.” 10A\nCHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2720 (4th ed. 2019); see\nalso John v. Louisiana, 757 F.2d 698, 712 (5th Cir. 1985). “[A] statement of legal opinion . . .\nis not a judicial admission.” McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 682 (7th Cir. 2002);\nsee also Anderson v. Comm’r of Internal Revenue, 698 F.3d 160, 167 (3d Cir. 2012); Roger\nMiller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 394 (6th Cir. 2007); N.Y. State\nNat’l Org. for Women v. Terry, 159 F.3d 86, 97 n.7 (2d Cir. 1998). “[A]nd legal conclusions\nmay not be used as evidentiary admissions.” W.V. Realty, Inc. v. N. Ins. Co. of N.Y., 334 F.3d\n306, 316 (3d Cir. 2003); see also Incase Inc. v. Timex Corp., 488 F.3d 46, 56 (1st Cir. 2007).\nTherefore, Lane’s state court concessions do not help the Hoyts here.\n\n 16\n\n Case: 18-10289 Document: 00515089951 Page: 17 Date Filed: 08/23/2019\n\n\n\n No. 18-10289\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Lindsey Hoyt v. Lane Construction Corporati\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-23\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10289 Document: 00515089951 Page: 1 Date Filed: 08/23/2019\\n\\n\\n\\n\\n REVISED August 23, 2019\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n June 10, 2019\\n No. 18-10289\\n Lyle W. Cayce\\n Clerk\\nLINDSEY HOYT, Individually, and Independently as Administrator of the\\nEstate of Jeffery Hoyt and as Next Friend of Joel Hoyt, Evan Hoyt, and Katie\\nHoyt; PATRICK HOYT,\\n\\n Plaintiffs-Appellants,\\n\\nv.\\n\\nTHE LANE CONSTRUCTION CORPORATION,\\n\\n Defendant-Appellee.\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore JONES, HAYNES, and OLDHAM, Circuit Judges.\\nANDREW S. OLDHAM, Circuit Judge:\\n We must decide whether the district court erred by refusing to remand\\nthis case to state court. It did not. Next, we must decide whether the district\\ncourt erred by granting summary judgment to the defendant. It did.\\n I.\\n On December 29, 2015, Jeffery Hoyt hit a patch of ice while driving on\\nFM 2264 in Wise County, Texas. Jeffery slid off the road. His car landed\\nupside down in an adjacent body of water. Tragically, Jeffery drowned. Less\\n\\n Case: 18-10289 Document: 00515089951 Page: 2 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nthan an hour later, a second driver hit the same patch of ice. The second driver\\nlikewise slid off the road. And the second driver landed directly on top of\\nJeffery’s submerged vehicle. That apparently saved the second driver from\\ndrowning. First responders rescued him and, in the process, discovered\\nJeffery’s vehicle and body.\\n On September 20, 2016, members of Jeffery’s family (“the Hoyts”) filed\\nsuit in Texas state court. They sued C.E.N. Concrete Construction Co., Storm\\nWater Management, Inc., and the Lane Construction Corporation. The Hoyts,\\nC.E.N., and Storm are citizens of Texas. Lane is not. The Hoyts contended all\\nthree companies had performed construction work on FM 2264 and caused ice\\nto form at the crash site. The defendants moved for summary judgment. The\\nstate district court granted C.E.N.’s motion and entered a “take nothing”\\njudgment in its favor.\\n The Hoyts and Storm engaged in settlement discussions. They never\\nreached agreement. Yet on September 22, 2017—one year and two days after\\nthe suit began—the Hoyts voluntarily dismissed their claims against Storm.\\nThe Hoyts received no compensation from Storm.\\n Five days later, Lane removed the case to federal court on the theory\\nthat it now fit within federal diversity jurisdiction. See 28 U.S.C. § 1332(a)(1);\\nLincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (requiring “complete\\ndiversity”). The next day, the Hoyts filed an emergency motion to remand.\\nThey argued Lane’s notice of removal was untimely. The federal district court\\ndenied that motion. In a second motion to remand filed about a month later,\\nthe Hoyts argued the voluntary-involuntary rule prohibited removal because\\nC.E.N. had been dismissed against their wishes. The district court denied that\\nmotion too.\\n Lane moved for summary judgment on the Hoyts’ claims for premises\\nliability and gross negligence. The federal district court granted the motion.\\n 2\\n\\n Case: 18-10289 Document: 00515089951 Page: 3 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nIt dismissed the claims against Lane with prejudice. The Hoyts timely\\nappealed.\\n II.\\n The Hoyts argue we must remand the case to state court. We disagree.\\nThe district court properly rejected both remand motions.\\n A.\\n The Hoyts’ first motion for remand turns on timeliness. Under 28 U.S.C.\\n§ 1446(c), the defendant in a diversity case has one year following the\\ncommencement of an action to remove it. But Congress created an exception\\nto this time bar where “the district court finds that the plaintiff has acted in\\nbad faith in order to prevent a defendant from removing the action.” Id.\\n§ 1446(c)(1). Here, the district court found the Hoyts acted in bad faith by\\nimproperly joining Storm (which prevented complete diversity and hence\\nprecluded removal). 1 The district court therefore denied the Hoyts’ motion to\\nremand under § 1446(c)’s time bar.\\n Although we review the denial of a motion to remand de novo, we review\\nthe underlying finding of bad faith for clear error. Spear Mktg., Inc. v.\\nBancorpSouth Bank, 791 F.3d 586, 591 (5th Cir. 2015). We hold (1) the district\\ncourt’s bad-faith finding was not clearly erroneous, and (2) the Hoyts cannot\\navoid that result by relying on cases that predate Congress’s enactment of the\\nbad-faith exception to § 1446(c)(1)’s time bar.\\n 1.\\n Exercising its role as factfinder, the district court found the Hoyts “knew\\nmonths beforehand that the evidence would not support the claims against\\n\\n\\n 1 This Court has “adopt[ed] the term ‘improper joinder’ as being more consistent with\\nthe statutory language than the term ‘fraudulent joinder,’ ” but “there is no substantive\\ndifference between the two terms.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1\\n(5th Cir. 2004) (en banc). Thus, we use the term “improper joinder” except where quoting\\nother authorities.\\n 3\\n\\n Case: 18-10289 Document: 00515089951 Page: 4 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nStorm.” That was not clear error. The Hoyts dismissed Storm a mere two days\\nafter the one-year deadline expired. They did so without receiving any\\nconsideration from Storm. Before that dismissal, the Hoyts seem to have\\npursued their claim against Storm only half-heartedly. Their witness list for\\ntrial did not include any fact witnesses from Storm. And the Hoyts’ expert\\nwitnesses made no serious efforts to establish Storm’s liability. All of this\\nsuggests the Hoyts kept Storm in the case for one purpose and one purpose\\nonly—to prevent removal during § 1446(c)’s one-year removal period. Two\\ndays after accomplishing that purpose, the Hoyts dismissed Storm for free.\\n The Hoyts’ response is unpersuasive. In the district court, the Hoyts\\nsubmitted an affidavit from their attorney to describe allegedly strategic\\nreasons for their decision to dismiss Storm. But these explanations relate to\\nwhy the Hoyts were reluctant to go to trial against Storm or accept Storm’s\\n(apparently low) settlement offer. They do not explain why the Hoyts waited\\nuntil just two days after the one-year deadline to dismiss Storm. And while\\nthe Hoyts claim they dismissed Storm after their settlement discussions came\\nto naught, the district court found it “suspicious[ ]” the Hoyts did not clarify\\nwhen “the alleged discussions with Storm” took place. We agree.\\n Nor can the Hoyts win a remand by raising “fact issues” regarding their\\ngood faith. True, “we resolve all contested factual issues . . . in favor of the\\nplaintiff ” when determining whether it improperly joined a non-diverse\\ndefendant. Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th\\nCir. 2007). That makes sense because, when considering whether “the plaintiff\\n[is able] to establish a cause of action against the non-diverse party in state\\ncourt,” the question is what the plaintiff might prove in the future. Ibid.; see\\nGuillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005); Smallwood v.\\nIll. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc). When it comes\\nto bad faith, by contrast, the question is what motivated the plaintiff in the\\n 4\\n\\n Case: 18-10289 Document: 00515089951 Page: 5 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\npast—that is, whether the plaintiff ’s litigation conduct meant “to prevent a\\ndefendant from removing the action.” 28 U.S.C. § 1446(c)(1). The district court\\nfound as a matter of fact the Hoyts acted in bad faith. The Hoyts failed to carry\\ntheir burden to prove that finding was clearly erroneous.\\n 2.\\n The Hoyts also argue we must reverse because their litigation conduct\\ndoes not satisfy the exception we created in Tedford v. Warner-Lambert Co.,\\n327 F.3d 423 (5th Cir. 2003). But Tedford pre-dates Congress’s enactment of\\nthe bad-faith exception in § 1446(c)(1), and it therefore does not control.\\n Before 2011, § 1446 prohibited defendants like Lane from removing a\\ncase “more than 1 year after commencement of the action”—full stop. 28 U.S.C.\\n§ 1446(b) (2006). The statutory text contained no exceptions. Believing this\\nold version of § 1446(b) was “not inflexible,” however, Tedford ruled “the\\nconduct of the parties may affect whether it is equitable to strictly apply the\\none-year limit.” 327 F.3d at 426. In light of the plaintiff’s “efforts to\\nmanipulate statutory rules,” the Tedford Court concluded, “[e]quity demands\\n[the plaintiff ] be estopped from seeking to remand the case on the basis of the\\none-year limit in § 1446(b).” Id. at 428 & n.13.\\n Other courts disagreed. They held that § 1446 did not allow for equitable\\ntolling or estoppel. See, e.g., Brock v. Syntex Labs., Inc., No. 92-5740, 1993 WL\\n389946, at *1 (6th Cir. Oct. 1, 1993); Kinabrew v. Emco-Wheaton, Inc., 936 F.\\nSupp. 351, 352 n.1 (M.D. La. 1996) (collecting cases). This split persisted until\\n2011, when Congress amended § 1446. See Federal Courts Jurisdiction and\\nVenue Clarification Act of 2011, Pub. L. No. 112-63, § 103(b), 125 Stat. 758,\\n760 (2011). By adding the bad-faith exception to the one-year deadline,\\nCongress resolved the conflict.\\n If Congress wanted to resolve the conflict by adopting the Tedford\\nstandard, it could have done so. Cf. 42 U.S.C. § 2000bb(b)(1) (listing the\\n 5\\n\\n Case: 18-10289 Document: 00515089951 Page: 6 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nrestoration of “the compelling interest test as set forth in Sherbert v. Verner,\\n374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)” as a purpose\\nof the Religious Freedom Restoration Act). But it did not. Congress instead\\nchose to replace Tedford’s equitable-estoppel principle with a “bad faith”\\nstandard. See 28 U.S.C. § 1446(c)(1). And we presume that choice of different\\ntext carries with it a choice of different meaning. Cf. Henson v. Santander\\nConsumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (“[W]hen we’re engaged in\\nthe business of interpreting statutes we presume differences in language . . .\\nconvey differences in meaning.”). We therefore no longer apply the old § 1446\\nand the Tedford exception we created. We now apply the new § 1446 and the\\nbad-faith exception Congress created. See Thompson v. Deutsche Bank Nat’l\\nTr. Co., 775 F.3d 298, 303 (5th Cir. 2014).\\n Our holding is consistent with the principle that “Congress is vested with\\nthe power to prescribe the basic procedural scheme under which claims may\\nbe heard in federal courts.” Patsy v. Bd. of Regents, 457 U.S. 496, 501 (1982).\\nOnce Congress has prescribed those procedures, we cannot add to them. See,\\ne.g., Ross v. Blake, 136 S. Ct. 1850, 1857 (2016) (holding the Prison Litigation\\nReform Act does not admit of judge-made exceptions). We do not exalt judge-\\nmade doctrines over valid laws. See Am. Express Co. v. Italian Colors Rest.,\\n570 U.S. 228, 235–39 (2013) (refusing to apply “a judge-made exception to the\\nFAA” broadly because “[t]he FAA does not sanction such a judicially created\\nsuperstructure”); CLS Bank Int’l v. Alice Corp. Pty., 717 F.3d 1269, 1303 (Fed.\\nCir. 2013) (en banc) (Rader, C.J., concurring in part and dissenting in part)\\n(“[J]udge-made exceptions to properly enacted statutes are to be narrowly\\nconstrued.”).\\n It does not matter the House Report accompanying the 2011 statute cites\\nTedford. That’s for two reasons. First, when “a statute’s text is clear, courts\\nshould not resort to legislative history.” Adkins v. Silverman, 899 F.3d 395,\\n 6\\n\\n Case: 18-10289 Document: 00515089951 Page: 7 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n403 (5th Cir. 2018). And we think the new § 1446(c)(1) is clear. But second, in\\nall events, the report cites Tedford only once, and only then to explain the\\nconflict the amendment would resolve. See H.R. REP. 112-10, at 15 (2011), as\\nreprinted in 2011 U.S.C.C.A.N. 576, 580. The report does not say the bill would\\nadopt the Tedford standard. Instead, it refers to the statutory bad-faith\\nexception as a “new standard.” Ibid. Relying on a single reference to Tedford—\\nwithout accounting for the author’s description of the bad-faith standard as\\n“new”—would be “akin to ‘looking over a crowd and picking out your friends.’ ”\\nPatricia M. Wald, Some Observations on the Use of Legislative History in the\\n1981 Supreme Court Term, 68 IOWA L. REV. 195, 214 (1983) (quoting Harold\\nLeventhal’s description of problems with citing legislative history).\\n Thus, even if the Hoyts’ litigation conduct would not satisfy the old\\nTedford standard (an issue we need not decide), that is no reason to reverse\\nthe district court’s finding of “bad faith” under the new § 1446(c)(1).\\n B.\\n The Hoyts’ second motion to remand turned on the voluntary-\\ninvoluntary rule. Removal was improper, they said, because diversity\\njurisdiction existed only after C.E.N. exited the case, and because C.E.N. exited\\nthe case pursuant to an opposed motion for summary judgment, not a\\nvoluntary act of the Hoyts. The Hoyts’ argument implicates the federal\\nremoval statute, a judge-made exception to the statute, and a judge-made\\nexception to that exception. We explain each in turn.\\n We start with the only easy part—the statutory text. Section 1446(b)(3)\\nis the provision governing removal of a case that becomes removable after the\\ninitial pleading is filed. Subject to exceptions not applicable here:\\n if the case stated by the initial pleading is not removable, a notice\\n of removal may be filed within 30 days after receipt by the\\n defendant . . . of a copy of an amended pleading, motion, order or\\n\\n 7\\n\\n Case: 18-10289 Document: 00515089951 Page: 8 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n other paper from which it may first be ascertained that the case is\\n one which is or has become removable.\\n28 U.S.C. § 1446(b)(3).\\n One might think a case is “removable” under § 1446 so long as it “may\\nbe removed” under § 1441. Indeed, courts generally understand § 1441 as\\ndefining removability. See Teamsters Local 404 Health Servs. & Ins. Plan v.\\nKing Pharm., Inc., 906 F.3d 260, 266 (2d Cir. 2018) (“[D]efin[ing] what kind of\\nproceedings are removable . . . is the ambit of § 1441.”); Medlin v. Boeing Vertol\\nCo., 620 F.2d 957, 964 (3d Cir. 1980) (“Section 1441(b) . . . defin[es]\\nremovability . . . .”). And with exceptions not relevant here, § 1441 provides\\n“any civil action brought in a State court of which the district courts of the\\nUnited States have original jurisdiction, may be removed.” 28 U.S.C.\\n§ 1441(a).\\n But this is an area thick with binding precedent. And precedent tells us\\nremovability under §§ 1441 and 1446 is subject to a judge-made exception:\\n“[W]here the case is not removable because of joinder of defendants,” only “the\\nvoluntary dismissal or nonsuit by [the plaintiff ] of a party or of parties\\ndefendant” can convert a nonremovable case into a removable one. Great N.\\nRy. Co. v. Alexander, 246 U.S. 276, 281 (1918). We have described this\\n“judicially-created voluntary-involuntary rule” as providing “an action\\nnonremovable when commenced may become removable thereafter only by the\\nvoluntary act of the plaintiff.” Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d\\n529, 532 (5th Cir. 2006) (quotation omitted).\\n The Supreme Court developed this principle before § 1446 expressly\\nprovided for removal of cases that were not initially removable. But in 1949,\\nCongress amended § 1446(b) to allow removal “after receipt . . . of an amended\\npleading, motion, order or other paper from which it may first be ascertained\\nthat the case is . . . removable.” Act of May 24, 1949, Pub. L. No. 81-72, § 83(a),\\n\\n 8\\n\\n Case: 18-10289 Document: 00515089951 Page: 9 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n63 Stat. 89, 101 (1949). Then we held the new § 1446(b) did not abrogate the\\nvoluntary-involuntary rule. See Weems v. Louis Dreyfus Corp., 380 F.2d 545,\\n547–48 (5th Cir. 1967).\\n The judicially created voluntary-involuntary rule is itself subject to a\\njudicially created exception for improper joinder. See Great N. Ry., 246 U.S. at\\n282 (recognizing the voluntary-involuntary rule applies only “in the absence of\\na fraudulent purpose to defeat removal”). When the non-diverse defendant\\nwas improperly joined, “the voluntary-involuntary rule is inapplicable.”\\nCrockett, 436 F.3d at 532.\\n Beneath this doctrinal thicket lurks a question presented—namely,\\nwhether C.E.N. was improperly joined. 2 We hold it was. Therefore, the\\nvoluntary-involuntary rule does not apply. And because the voluntary-\\n\\n\\n 2 The Hoyts argue we should not consider the improper-joinder exception because\\nLane forfeited the issue by failing to include it in its notice of removal. A notice of removal\\nmust “contain[ ] a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a).\\nLane’s notice of removal identified diversity jurisdiction as the ground for removal and\\nexplained that complete diversity existed because the Texas defendants were no longer in the\\ncase. Lane first raised improper joinder in its response to the Hoyts’ second motion to\\nremand. In this case at least, improper joinder was not a ground for removal. It was a\\nrebuttal to the Hoyts’ argument that the voluntary-involuntary rule prevented removal. In\\nother words, it was an exception to an exception to the ground of removal. We do not require\\na litigant to anticipatorily rebut all potential arguments his adversary may raise. Failing to\\ndo so is not a forfeiture. See R.J. Corman Derailment Servs., LLC v. Int’l Union of Operating\\nEng’rs, Local Union 150, 335 F.3d 643, 650 (7th Cir. 2003) (“[A] party cannot waive something\\nthat it does not know is at issue.”); NLRB v. NPC Int’l, Inc., No. 13-0010, 2017 WL 634713,\\nat *5 (W.D. Tenn. Feb. 16, 2017) (“A moving party does not waive reply arguments merely\\nbecause it fails to accurately predict the contentions of a responding party.”).\\n Neither the Hoyts nor the dissent point to any cases holding to the contrary. Some courts\\nhave held a removing defendant forfeits an improper-joinder argument by failing to include\\nit in the notice of removal when a non-diverse party remains in the case at the time of\\nremoval. See, e.g., Wessel v. Miraglia, No. 4:04-cv-377, 2004 WL 1943776, at *3 (N.D. Tex.\\nAug. 31, 2004) (treating improper joinder as a ground that should have been included in a\\nnotice of removal). But that rule does not apply where, as here, improper joinder is used as\\nan exception to the voluntary-involuntary rule. Thus, we need not decide whether those cases\\nare rightly decided. See Pharos Capital Grp., LLC v. Nutmeg Ins. Co., 999 F. Supp. 2d 947,\\n953 (N.D. Tex. 2014) (“[E]ven though it was brought up for the first time in its response to\\nthe Motion to Remand, [the removing defendant’s] improper joinder argument was not\\nwaived.”).\\n 9\\n\\n Case: 18-10289 Document: 00515089951 Page: 10 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\ninvoluntary rule does not apply, the case was removable under §§ 1441 and\\n1446.\\n Improper joinder “can be established by demonstrating,” among other\\nthings, the “inability of the plaintiff to establish a cause of action against the\\nnon-diverse party in state court.” Crockett, 436 F.3d at 532 (quotation\\nomitted). Assessing a plaintiff ’s ability to establish a cause of action against a\\nnon-diverse defendant in state court turns on whether the state courts have\\nalready ruled on the merits of the plaintiff ’s claim. If a state court has not yet\\nruled, the federal court must ask whether “there [is] any reasonable possibility\\nthat a state court would rule against the non-diverse defendant.” Poulos v.\\nNaas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). “If a state court has come to\\njudgment,” the federal court must ask whether “there [is] any reasonable\\npossibility that the judgment will be reversed on appeal.” Ibid.; see also\\nKnudson v. Sys. Painters, Inc., 634 F.3d 968, 980 n.11 (8th Cir. 2011); Arthur\\nv. E.I. du Pont, 798 F. Supp. 367, 369 (S.D. W. Va. 1992). 3\\n In this case, the state court had granted C.E.N.’s motion for summary\\njudgment. When C.E.N. won summary judgment, it exited the case. See, e.g.,\\nPoulos, 959 F.2d at 70 (describing a party who won summary judgment in state\\n\\n\\n\\n 3Apparently rejecting this framework, the dissent would conduct a “Rule 12(b)(6)-type\\nanalysis” and disregard the state court’s grant of summary judgment. Post at 20–22 (Haynes,\\nJ., dissenting). Under this Court’s precedent, a “Rule 12(b)(6)-type analysis” applies when a\\nfederal court is considering whether to dismiss a non-diverse defendant as improperly joined.\\nFlagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016) (en banc); Smallwood, 385 F.3d at\\n572–73. But it does not necessarily apply when a state court has already dismissed the non-\\ndiverse defendant. Cf. Crockett, 436 F.3d at 533. It would be passing strange for a federal\\ncourt asking whether the plaintiff can “establish a cause of action against the non-diverse\\nparty in state court,” Flagg, 819 F.3d at 136 (quotation omitted), to ignore that “a state court\\nhas come to judgment” on that very question, Poulos, 959 F.2d at 73; see also Knudson, 634\\nF.3d at 980 n.11. “We are always chary to create a circuit split,” Gahagan v. U.S. Citizenship\\n& Immigration Servs., 911 F.3d 298, 304 (5th Cir. 2018) (quotation omitted), and the dissent\\nprovides no compelling reason to do so here. The bottom line is this: for the reasons we have\\nexplained, the Hoyts’ case against C.E.N. was not winnable because they could not appeal\\nthe state court’s dismissal.\\n 10\\n\\n Case: 18-10289 Document: 00515089951 Page: 11 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\ncourt as “gone from the case”); Higgins v. E.I. DuPont de Nemours & Co., 863\\nF.2d 1162, 1166 (4th Cir. 1988) (explaining a “non-diverse party is eliminated\\nfrom the state action by voluntary or involuntary dismissal” in state court).\\nThe federal district court concluded there was no possibility the state court’s\\ngrant of summary judgment to C.E.N. would be reversed on appeal. The Hoyts\\nhad not argued they “could or would pursue an appeal of the granting of\\nC.E.N.’s motion for summary judgment,” and the district court concluded the\\nHoyts “apparently abandoned the right to do so.”\\n The Hoyts’ appellate briefs did not challenge the district court’s\\nconclusion that they could not appeal the grant of summary judgment to C.E.N.\\nAny argument undermining the district court’s conclusion is therefore\\nforfeited. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). The Hoyts’\\ncounsel did raise the issue at oral argument, but “[a]rguments presented for\\nthe first time at oral argument are [forfeited].” Comsat Corp. v. FCC, 250 F.3d\\n931, 936 n.5 (5th Cir. 2001).\\n When a state court order creates diversity jurisdiction and that order\\ncannot be reversed on appeal, our precedent treats the voluntary-involuntary\\nrule as inapplicable. See Crockett, 436 F.3d at 533 (“[R]emoval on the basis of\\nan unappealed severance, by a state court, of claims against improperly joined\\ndefendants is not subject to the voluntary-involuntary rule.”); 14C CHARLES\\nALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3723 (Rev. 4th ed.\\n2019) (explaining Crockett “makes sense because there is no risk of reversal of\\nan unappealed severance order”). In light of the district court’s now-\\nunchallengeable ruling that the state court’s dismissal of C.E.N. could not be\\nreversed on appeal, we are compelled to conclude C.E.N. was improperly\\n\\n\\n\\n\\n 11\\n\\n Case: 18-10289 Document: 00515089951 Page: 12 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\njoined. 4 As a result, the voluntary-involuntary rule did not bar Lane from\\nremoving the case to federal court. Therefore, the district court did not err in\\ndenying the Hoyts’ second motion to remand.\\n III.\\n We now consider whether the district court erred by granting Lane’s\\nmotion for summary judgment. Applying de novo review, DeVoss v. Sw.\\nAirlines Co., 903 F.3d 487, 490 (5th Cir. 2018), we conclude it did.\\n A.\\n The district court first held Lane is statutorily immune from the Hoyts’\\ndamages claims. Texas law provides:\\n A contractor who constructs or repairs a highway, road, or street\\n for the Texas Department of Transportation [(“TxDOT”)] is not\\n liable to a claimant for personal injury, property damage, or death\\n arising from the performance of the construction or repair if, at the\\n time of the personal injury, property damage, or death, the\\n contractor is in compliance with contract documents material to\\n the condition or defect that was the proximate cause of the\\n personal injury, property damage, or death.\\n\\n\\n\\n 4 The dissent says the Hoyts’ forfeiture is irrelevant because the issue is\\n“jurisdictional.” Post at 17–18 n.1 (Haynes, J., dissenting). That conflates the rules of\\nsubject-matter jurisdiction (which cannot be forfeited) with the rules of removal procedure\\n(which can be forfeited). Only Congress can make rules of unforfeitable subject-matter\\njurisdiction. See, e.g., Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017).\\nBy contrast, the judge-made voluntary-involuntary rule is a forfeitable rule of removal\\nprocedure. See Crockett, 436 F.3d at 533 (describing the voluntary-involuntary rule as a\\nmatter of “removal jurisdiction”); Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1543 (5th Cir.\\n1991) (explaining “improper removal (i.e., lack of removal jurisdiction) . . . is waivable”); see\\nalso Higgins, 863 F.2d at 1166 (holding a potential violation of the voluntary-involuntary rule\\ndid not deprive a federal district court of jurisdiction); Jones v. CMM of Ind., LLC, No. 05-cv-\\n4039, 2006 WL 120085, at *2 n.2 (E.D. La. Jan. 17, 2006) (holding “the voluntary/involuntary\\nrule is one of removal procedure rather than subject matter jurisdiction”). In all events, the\\nHoyts cannot bring C.E.N. back into the case for an independent reason—namely, their\\nclaims against C.E.N. are meritless for all the reasons the district court already gave. See\\nHoyt v. Lane, Order on Plaintiffs’ Second Motion to Remand, No. 17-cv-780, Doc. 32, at 4–5\\n(Dec. 4, 2017). Their “inability . . . to establish a cause of action against the non-diverse party\\nin state court” demonstrates improper joinder by itself. Crockett, 436 F.3d at 532 (quotation\\nomitted).\\n 12\\n\\n Case: 18-10289 Document: 00515089951 Page: 13 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\nTEX. CIV. PRAC. & REM. CODE § 97.002. According to the district court, Lane\\nperformed its work on FM 2264 pursuant to a TxDOT contract and “did\\neverything to follow TxDOT plans.”\\n We disagree. On October 27, 2015—nine weeks before Jeffery’s tragic\\naccident—Lane performed remedial “erosion control” work alongside FM 2264.\\nTxDOT determined this remedial work was necessitated by Lane’s\\n“negligence.” Lane was not properly removing “accumulated silt” from the\\nconstruction site and instead was “push[ing] off [the silt] along the [right of\\nway].” The Hoyts argue this silt caused the pooling of water on FM 2264 that\\nkilled Jeffery. To support that argument, the Hoyts submitted expert\\ntestimony that Lane’s “[f]ailure to properly install and maintain sediment\\ncontrol measures” in accordance with its TxDOT contract caused water to\\n“flow[ ] onto the roadway.”\\n But that’s not all. On January 15, 2016—two weeks after Jeffery’s tragic\\ndeath—TxDOT completed a “Construction Stage Gate Checklist” for the FM\\n2264 project. It found Lane failed to install stormwater run-off “control\\nmeasures” in accordance with TxDOT specifications. It further found the\\n“control measures” were not “performing” or “properly maintained.”\\n These record materials—spanning the time period from before Jeffery’s\\naccident to after it—raise a material dispute of fact regarding Lane’s\\ncompliance or lack thereof with its TxDOT contract. Moreover, statutory\\nimmunity under § 97.002 is an affirmative defense on which Lane bore the\\nburden of proof. See Brown v. RK Hall Constr., Ltd., 500 S.W.3d 509, 512 (Tex.\\nApp.—Texarkana 2016, pet. denied). And Lane failed to show as a matter of\\nlaw that its TxDOT-documented negligence before the accident and its TxDOT-\\ndocumented inspection deficiencies after the accident did not cause Jeffery’s\\ndeath. Therefore, it was error to grant summary judgment on this ground.\\n\\n\\n 13\\n\\n Case: 18-10289 Document: 00515089951 Page: 14 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n B.\\n The district court next granted summary judgment to Lane on the Hoyts’\\npremises-liability claim. It did so on two grounds. We conclude material\\ndisputes of fact preclude both.\\n First, the district court found the ice patch that killed Jeffery was “a\\nnatural formation.” It is true that, under Texas law, “naturally occurring ice\\nthat accumulates without the assistance or involvement of unnatural contact\\nis not an unreasonably dangerous condition sufficient to support a premises\\nliability claim.” Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 414 (Tex.\\n2010). Here, however, the Hoyts have pointed to summary judgment evidence\\nthat the ice patch on FM 2264 accumulated through unnatural conditions—\\nnamely, Lane’s construction activities at the crash site. It submitted an expert\\nreport to that effect. Moreover, the State Trooper who responded to the\\naccident testified the ice patch that killed Jeffery was the only patch of ice\\nalong a 20-mile stretch of highway. The second driver (who also slid off the\\nroad and landed on top of Jeffery’s vehicle) testified to the same effect. This\\ntestimony—viewed in the light most favorable to the Hoyts—creates a material\\ndispute of fact regarding whether the ice patch formed naturally.\\n Second, the district court found Lane “did not have actual knowledge of\\na dangerous premises condition at the time of [Jeffery’s] accident.” Under\\nTexas law, actual knowledge can be proved through direct evidence or\\nreasonable inference. For example, in City of San Antonio v. Rodriguez, 931\\nS.W.2d 535 (Tex. 1996) (per curiam), the plaintiff slipped on a city-owned\\nbasketball court. See id. at 536. The city had actual knowledge of leaks in the\\nroof but disputed it had actual knowledge that rain had leaked onto the\\nbasketball court when Rodriguez slipped. See id. at 537. The Supreme Court\\nof Texas held that was irrelevant:\\n\\n\\n 14\\n\\n Case: 18-10289 Document: 00515089951 Page: 15 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n [T]here was evidence that the person in charge of the recreation\\n center knew of the leaks in the roof and knew that it had been\\n raining. Depending on the position of the leaks above the floor and\\n the amount of rain, the jury might have inferred that the person\\n in charge knew that there would be water on the floor.\\nIbid.\\n So here. The Hoyts produced evidence tending to show Lane knew the\\nculverts at its construction site could overflow in a heavy rain. Lane knew\\nabout the drainage problems associated with its work on the culverts. And\\nLane knew the site received 4–6 inches of heavy rain, under freezing\\ntemperatures, the night before Jeffery died. That distinguishes this case from\\nCity of Corsicana v. Stewart, 249 S.W.3d 412 (Tex. 2008) (per curiam), in which\\nthe defendant city did not know a road had flooded, in part because a city\\nofficial was unaware of the rain. See id. at 415–16 & n.3. Therefore, as in\\nRodriguez, a jury reasonably could infer Lane knew there would be ice on the\\nroad. If anything, that inference is easier here because Lane employees\\nrepeatedly worried drivers could slip off the road where Jeffery died—with or\\nwithout ice. As one Lane employee testified, “I just talked to [TxDOT officials]\\nnumerous times that I was afraid that our people working there [in the spot\\nwhere Jeffery died], a car could drive off on top of them.”\\n C.\\n Finally, the district court granted summary judgment for Lane on the\\nHoyts’ gross negligence claim. The Hoyts argue all the evidence they offered\\nto prove premises liability also suffices to show gross negligence. Having\\nvacated the grant of summary judgment on premises liability, we similarly\\nvacate the grant of summary judgment on gross negligence for\\nreconsideration. 5\\n\\n\\n That reconsideration need not include the Hoyts’ alternative argument that Lane’s\\n 5\\n\\nconcessions regarding material disputes of fact in state court preclude summary judgment in\\n 15\\n\\n Case: 18-10289 Document: 00515089951 Page: 16 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n * * *\\n The district court did not err by denying the Hoyts’ motions for remand\\nbut did err by granting Lane’s motion for summary judgment. The judgment\\nis AFFIRMED in part, VACATED in part, and REMANDED for further\\nproceedings consistent with this opinion.\\n\\n\\n\\n\\nfederal court. Neither of the doctrines the Hoyts invoke—judicial admissions and evidentiary\\nadmissions—applies to concessions of law. “[W]hether a genuine dispute concerning a\\nmaterial fact exists is itself a question of law that must be decided by the court. It does not\\ndepend upon what either or both of the parties may have thought about the matter.” 10A\\nCHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2720 (4th ed. 2019); see\\nalso John v. Louisiana, 757 F.2d 698, 712 (5th Cir. 1985). “[A] statement of legal opinion . . .\\nis not a judicial admission.” McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 682 (7th Cir. 2002);\\nsee also Anderson v. Comm’r of Internal Revenue, 698 F.3d 160, 167 (3d Cir. 2012); Roger\\nMiller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 394 (6th Cir. 2007); N.Y. State\\nNat’l Org. for Women v. Terry, 159 F.3d 86, 97 n.7 (2d Cir. 1998). “[A]nd legal conclusions\\nmay not be used as evidentiary admissions.” W.V. Realty, Inc. v. N. Ins. Co. of N.Y., 334 F.3d\\n306, 316 (3d Cir. 2003); see also Incase Inc. v. Timex Corp., 488 F.3d 46, 56 (1st Cir. 2007).\\nTherefore, Lane’s state court concessions do not help the Hoyts here.\\n\\n 16\\n\\n Case: 18-10289 Document: 00515089951 Page: 17 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-10289\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3693,"cells":{"id":{"kind":"number","value":4655663,"string":"4,655,663"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"JP Morgan Chase Bank, N.A. v. Datatreasury Corpora"},"decision_date":{"kind":"string","value":"2019-08-23"},"docket_number":{"kind":"string","value":"18-40043"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES E. GRAVES, JR., Circuit Judge\", \"type\": \"010combined\", \"text\": \"Case: 18-40043 Document: 00515089895 Page: 1 Date Filed: 08/23/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-40043 FILED\\n August 23, 2019\\n Lyle W. Cayce\\nJP MORGAN CHASE BANK, N.A., Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nDATATREASURY CORPORATION,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.\\nJAMES E. GRAVES, JR., Circuit Judge:\\n Plaintiff-Appellant JP Morgan Chase Bank (“JMPC”) appeals the\\ndistrict court’s denial of its motion to compel certain post-judgment discovery.\\nFinding no reversible error, we affirm.\\n I. BACKGROUND\\nA. The Underlying Case\\n The merits of the underlying case were resolved in a previous appeal\\nwhich resulted in a published decision. See JP Morgan Chase Bank, N.A. v.\\nDataTreasury Corp., 823 F.3d 1006 (5th Cir. 2016) (hereinafter JPMC).\\nAccordingly, we provide a summary of the merits only as necessary to\\nunderstand the instant post-judgment dispute.\\n\\f Case: 18-40043 Document: 00515089895 Page: 2 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\n Defendant-Appellee DataTreasury Corporation (“DTC”) used to hold\\nseveral patents relating to electronic check-processing systems. JPMC, 823\\nF.3d at 1008. To enforce its patents, DTC sued several banks, including JPMC,\\nfor alleged willful infringement. Id. In 2005, JPMC was the first bank to settle\\nwith DTC. Id. As part of the settlement, JPMC entered a license agreement\\nwith DTC wherein JPMC was allowed unlimited use of DTC’s patented check-\\nprocessing systems for a total consideration of $70 million. Id. The agreement\\nincluded a most-favored licensee (“MFL”) provision which entitled JMPC “to\\nthe benefit of any and all more favorable terms with respect to” subsequent\\nlicenses granted by DTC to any other persons. Id. at 1009. The MFL clause\\nalso outlined notice requirements concerning how DTC was to notify JPMC\\neach time DTC entered a new license agreement with more favorable terms.\\nId.\\n Over the course of several years, DTC entered numerous subsequent\\nlicensing agreements. JPMC, 823 F.3d at 1009. In November of 2012, JPMC\\nfiled suit against DTC, alleging DTC breached the MFL clause by failing to\\nnotify JPMC of the subsequent licenses, many of which “were granted on terms\\nsubstantially more favorable than those afforded to JPMC.” Id. Prior to trial,\\nJPMC filed a motion for summary judgment specifically seeking the benefit of\\nthe more favorable terms granted to Cathay General Bancorp (“Cathay”) on\\nOctober 1, 2012, as well as the “other Subsequent Licenses.” See id. Most\\nnotably, the Cathay agreement granted Cathay a license for a total\\nconsideration of $250,000. Id. DTC responded with its own motions for\\nsummary judgment, requesting summary judgment in its favor on its\\naffirmative defenses and the applicability of the MFL clause, and requesting a\\nfinding of no breach as to certain claims. Id.\\n Because JPMC designated the Cathay license as the most favorable, the\\ndistrict court only considered the parties’ claims with respect to that particular\\n 2\\n\\f Case: 18-40043 Document: 00515089895 Page: 3 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nlicense, granting JPMC’s motion in part and denying DTC’s motions. See id. at\\n1010. The district court determined that DTC breached the contract by failing\\nto notify JPMC of the Cathay license in accordance with the MFL clause and\\nthat the broadly worded MFL clause gave JPMC the right to incorporate\\nretroactively the more favorable terms of the Cathay license agreement. 1 Id.\\nThe district court also found DTC’s affirmative defenses meritless, but again\\nonly considered them as they applied to the Cathay license. Id. On appeal, this\\ncourt affirmed the district court’s interpretation of the MFL agreement and the\\ndismissal of DTC’s affirmative defenses. Id. at 1008.\\n In the end, DTC was on the hook to JPMC for $69 million in damages.\\nId. at 1010.\\nB. Post-Judgment Activity\\n Shortly after the district court entered the $69 million judgment in June\\n2015, JPMC issued discovery requests and a subpoena to DTC and its law firm\\nNix, Patterson & Roach, LLP (“NPR”) regarding the location of DTC’s assets. 2\\nJPMC’s initial interrogatories and subpoena did not include a timeframe, and\\nDTC objected that such extensive discovery requests were unduly burdensome\\nand overbroad because they were not related to the period after execution of\\nthe Cathay license agreement. DTC explained it would respond, but it would\\nlimit its answers to information dating back to June 9, 2011, as that was the\\nearliest date it could have had “notice of a potential claim by or obligation to\\nJPMC” because that was the date DTC received a letter from JPMC “raising a\\n\\n\\n\\n 1 DTC had argued the MFL clause applied only prospectively (JPMC would not be\\nentitled to a refund of payments already made to DTC at the time of a subsequent, more\\nfavorable license) rather than retroactively (JPMC would be entitled to a refund of any\\npayment already made to DTC over and above the more favorable price).\\n 2 While there was some discussion before the district court about the relationship\\n\\nbetween NPR and DTC for purposes of discovery, the parties’ legal arguments on appeal do\\nnot distinguish between discovery requests issued to NPR and DTC. Because the distinction\\nis immaterial for purposes of this appeal, we simply refer to them both as “DTC.”\\n 3\\n\\f Case: 18-40043 Document: 00515089895 Page: 4 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\npotential issue about the license between DTC and [JPMC].” DTC filed motions\\nto quash and for protective orders, and JPMC filed a motion to compel.\\n The district court held a status conference on the motions in March 2017.\\nJPMC explained at the hearing that it sought all of DTC’s financial records\\nbecause DTC had paid nothing on the judgment and was showing bank\\nstatements reflecting insolvency, despite having received nearly $600 million\\nin revenue from various license agreements. The district court declined to rule\\non the issues at the hearing and directed the parties to meet and confer and\\nfile updated status reports. The parties met and conferred but could not resolve\\nthe issues. JPMC continued to want discovery dating back to January 2006—\\nDTC’s first alleged breach of the MFL clause—to help it uncover any\\nfraudulent transfers or improper payments to shareholders. Negotiations\\nstalled, and JPMC renewed its motion to compel, requesting an order\\noverruling DTC’s objections.\\n The district court ultimately sided with DTC. While the district court did\\nnot provide a detailed explanation for its ruling, the discovery order mentions\\nJune 2011 as the date DTC first had notice of JPMC’s claim. It also asserts\\nthat JPMC relied on the 2012 Cathay agreement in its summary judgment\\nmotion and the judgment was based on that agreement. In light of these dates\\nand the totality of the circumstances, the district court determined JPMC\\nsought discovery into matters “well-before the appropriate time period and\\nthat [were] not relevant to the Judgment in this case.” JPMC appealed.\\n II. LEGAL STANDARD\\nA. Standard of Review\\n We review a district court’s denial of a discovery request for abuse of\\ndiscretion. Pustejovsky v. Pliva, Inc., 623 F.3d 271, 278 (5th Cir. 2010). “A trial\\ncourt enjoys wide discretion in determining the scope and effect of discovery,\\nand it is therefore unusual to find an abuse of discretion in discovery matters.”\\n 4\\n\\f Case: 18-40043 Document: 00515089895 Page: 5 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nEqual Emp’t Opportunity Comm’n v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th\\nCir. 2017) (quoting Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir. 1982)\\n(internal quotation marks omitted)). There is no difference between the\\nstandard of review of a pre-trial discovery order and that of a post-judgment\\ndiscovery order. See Mitchell v. Sizemore, 536 F. App’x 443, 444 (5th Cir. 2013)\\n(applying abuse of discretion standard to district court’s denial of post-\\njudgment discovery request); United States v. McWhirter, 376 F.2d 102, 106\\n(5th Cir. 1967) (finding the philosophy underlying the discovery provisions of\\nthe Federal Rules to apply “with equal force whether the information is sought\\nin a pre-trial or in a post-judgment discovery proceeding”). A court abuses its\\ndiscretion “when its decision is based on an erroneous view of the law.” Crosby\\nv. La. Health Serv. & Indem. Co., 647 F.3d 258, 261 (5th Cir. 2011).\\nNevertheless, the district court’s decision should be reversed only in “unusual\\nand exceptional” cases, O’Malley v. U.S. Fid. & Guar. Co., 776 F.2d 494, 499\\n(5th Cir. 1985) (internal quotation marks omitted), such as where the decision\\nis “arbitrary or clearly unreasonable.” Wiwa v. Royal Dutch Petroleum Co., 392\\nF.3d 812, 818 (5th Cir. 2004) (quoting Moore v. Willis Indep. Sch. Dist., 233\\nF.3d 871, 876 (5th Cir. 2000)). Even if a district court abuses its discretion, the\\nreviewing court will not overturn its ruling unless it substantially affects the\\nrights of the appellant. N. Cypress Med. Ctr. Operating Co., Ltd. v. Aetna Life\\nIns. Co., 898 F.3d 461, 481 (5th Cir. 2018).\\nB. Standard for Post-Judgment Discovery\\n Federal Rule of Civil Procedure 69(a)(2) allows a judgment creditor to\\n“obtain discovery from any person—including the judgment debtor—as\\nprovided in these rules or by the procedure of the state where the court is\\nlocated.” “Rule 69 was intended to establish an effective and efficient means of\\nsecuring the execution of judgments.” McWhirter, 376 F.2d at 106. “The scope\\nof postjudgment discovery is very broad to permit a judgment creditor to\\n 5\\n\\f Case: 18-40043 Document: 00515089895 Page: 6 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\ndiscover assets upon which execution may be made.” FDIC v. LeGrand, 43 F.3d\\n163, 172 (5th Cir. 1995). To effectuate that purpose, the discovery rules are to\\nbe liberally construed. McWhirter, 376 F.2d at 106.\\n Nevertheless, “[t]he Federal Rules of Civil Procedure . . . permit the\\ndistrict court to limit discovery.” Mitchell, 536 F. App’x at 444 (citing Fed. R.\\nCiv. P. 26(b)(1) and (b)(2)(A), (C)). For instance, the discovery must be relevant\\nto the purpose of obtaining information on hidden or concealed assets,\\nincluding assets that may have been fraudulently transferred. See 13 James\\nWm. Moore et al., Moore’s Federal Practice - Civil § 69.04 (2018) (citing Caisson\\nCorp. v. Cty. W. Bldg. Corp., 62 F.R.D. 331, 334 (E.D. Pa. 1974)); 12 Charles\\nAlan Wright et al., Federal Practice and Procedure Civil § 3014 (2d ed.)\\n(updated 2018).\\n III. DISCUSSION\\n JPMC alleges the district court abused its discretion by denying its\\nrequest for discovery prior to June 2011. JPMC argues DTC accrued most of\\nits patent-related revenue from 2006 to 2011, but has since dissipated the\\nincome, leaving JPMC with an “as yet” uncollectable judgment. According to\\nJPMC, it was a creditor of DTC dating back to the first subsequent license\\nagreement and breach in 2006, and therefore it should be entitled to financial\\ndiscovery back to that date so it can determine if DTC made fraudulent\\ntransfers to avoid financial obligations to JPMC. DTC’s counter-argument is\\nsimple—JPMC’s judgment is based on the 2012 Cathay license agreement, and\\ntherefore discovery should be limited to that particular breach.\\nA. DTC’s Prior Breaches\\n 1. Notice of JPMC’s Potential Claims\\n One of JPMC’s main arguments is that the district court abused its\\ndiscretion by erroneously finding DTC had no notice of any potential claim by\\nJPMC until June 2011. JPMC argues, and it is essentially undisputed, that\\n 6\\n\\f Case: 18-40043 Document: 00515089895 Page: 7 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nDTC entered subsequent license agreements with more favorable price terms\\nas early as January 2006. See JPMC, 823 F.3d at 1019. It is also undisputed\\nthat DTC did not give JPMC the benefit of any more favorable price terms, nor\\ndid it notify JPMC of the subsequent licenses as required by the MFL clause.\\nTherefore, according to JPMC, the district court clearly erred when it found\\nJune 9, 2011 to be relevant to DTC’s awareness of its breach and corresponding\\nfinancial obligations to JPMC; DTC was aware of its own actions that\\nconstituted the breach, and it was these actions that prohibited JPMC from\\nknowing of any breach and notifying DTC of a dispute earlier.\\n JPMC further urges that DTC cannot hide behind its interpretation of\\nthe MFL clause to allege it had no notice of potential claims by JPMC. Even\\nunder DTC’s interpretation of the contract, 3 DTC would have known it\\nbreached the agreement each time it failed to notify JPMC of subsequent, more\\nfavorable licenses and to pass on the more favorable terms. Because DTC\\nwould have known of its potential financial obligations every time it accepted\\na new payment from JPMC, transfers made after 2006 could in theory have\\nbeen a way to hide assets from a future claim by JPMC.\\n DTC repeats multiple times that it had no notice of JPMC’s potential\\nclaims until 2011; however, it does not make any real argument on this point.\\nWe agree that the district court’s reliance on the June 2011 date as relevant to\\nDTC’s knowledge of any potential claims by JPMC is clearly erroneous.\\nNevertheless, the district court also based its denial on the judgment itself and\\nthe “totality of the circumstances,” so we find any weight the district court\\naccorded the June 2011 date to be harmless.\\n\\n\\n\\n\\n 3 As a reminder, DTC argued the MFL clause only applied prospectively, meaning\\nJPMC would not be entitled to reimbursement of any amount it had already paid DTC in\\nexcess of the value of the new license agreement.\\n 7\\n\\f Case: 18-40043 Document: 00515089895 Page: 8 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\n 2. The Judgment Itself\\n The next main point of contention between the parties is whether the\\njudgment relates to all DTC’s alleged breaches, or simply the 2012 Cathay\\nagreement. DTC contends that the judgment, and JPMC’s summary judgment\\nmotion upon which the judgment is based, only considered the 2012 Cathay\\nagreement and breach. Therefore, post-judgment discovery should revolve\\naround that agreement. In this regard, DTC notes that while the district court\\nfound DTC breached the MFL clause by not notifying JPMC of the 2012 Cathay\\nlicense agreement, no court found DTC to have breached the MFL clause at\\nany other point in time, and JPMC, a sophisticated party with sophisticated\\ncounsel, made a deliberate decision to narrow its summary judgment motion\\nto the Cathay agreement. According to DTC, any other alleged breaches are\\nirrelevant to JPMC’s judgment, and JPMC should be barred from seeking relief\\nbased on additional breaches of the MFL clause by the doctrine of res judicata.\\n While we agree with DTC that the judgment only pertains to the 2012\\nagreement, DTC’s characterization of JPMC’s motion is not completely\\naccurate. JPMC’s summary judgment motion did in fact seek relief on the other\\nlicenses/breaches in addition to the Cathay license; however, JPMC noted that\\nas to particular terms, it could only seek the benefit of one license. It therefore\\nchose to focus on the Cathay license, although it mentioned the analysis in its\\nmotion applied equally to each more favorable term in the additional licenses.\\nThe district court acknowledged JPMC’s admission and emphasized in its\\norder that it was specifically limiting its consideration of JPMC’s claims to the\\nCathay license.\\n In this vein, DTC points out that even if it had breached the MFL clause\\nprior to the 2012 Cathay agreement, it raised affirmative defenses to those\\nbreaches which the district court did not consider. In fact, DTC contends\\nJPMC’s reason for limiting its summary judgment motion to the 2012 Cathay\\n 8\\n\\f Case: 18-40043 Document: 00515089895 Page: 9 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nagreement was “strategically” to avoid DTC’s affirmative defenses. While the\\nimplied strength of DTC’s affirmative defenses is probably overstated, JPMC\\ndid make a conscious choice to seek the benefit of the Cathay license agreement\\nover other subsequent licenses. For instance, one of the licenses JPMC\\nsubmitted in its summary judgment motion had a price term of $39,500, an\\neven more favorable price term than the Cathay license. The license was\\nentered into around the same time as the Cathay license, so it is unclear why\\nJPMC chose not to seek the benefit of that license. It could easily have been\\nbecause the license contained other less favorable terms, but perhaps it was\\nbecause an affirmative defense applied to it. Even if it is unlikely DTC’s\\naffirmative defenses would have succeeded, we will never know for sure\\nbecause DTC’s affirmative defenses were only reviewed by the district court as\\nto the 2012 breach.\\n Ultimately, while JPMC did ask the district court to make a finding of\\nbreach as to the other licenses, the district court declined, limiting its analysis\\nto the Cathay license which then formed the basis for JPMC’s judgment. In\\naddition, even assuming the district court’s order assumed or found other\\nbreaches of the MFL clause, the amount of the judgment is specifically tied to\\nthe Cathay license. While JPMC argues limiting the discovery to this\\nagreement gives DTC the benefit of its other breaches, it is not clearly entitled\\nto damages on those other breaches. It therefore would be reasonable for the\\ndistrict court to tie discovery to a time period associated with the Cathay\\nagreement. Because that is what the district court chose to do, it did not abuse\\nits discretion.\\nB. Fraudulent Transfers\\n JPMC contends it deserves discovery dating back to 2006 so it can\\ndiscover and understand the present location of DTC’s funds, DTC’s transfer\\nof any monies, and whether any of the transfers are subject to avoidance\\n 9\\n\\f Case: 18-40043 Document: 00515089895 Page: 10 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nclaims. DTC asserts that even if JPMC’s allegations of fraudulent transfers\\nhad merit, Texas law would govern such a dispute, and Texas law defines a\\nfraudulent transfer only as one where “the creditor’s claim arose before or\\nwithin a reasonable time after the transfer was made or the obligation was\\nincurred.” DTC argues 2006 is not a reasonable time before JPMC’s claim arose\\nin 2012, while 2011 is. JPMC does not concede that Texas law applies, 4 but it\\ndoes not dispute that a fraudulent transfer must occur within a reasonable\\ntime, either before or after, a creditor’s claim arose. The real issue between the\\ntwo parties here is when JPMC’s claim arose.\\n “Creditor” under Texas law is defined as one who has a claim. Tex. Bus.\\n& Com. Code § 24.002(4). “Claim” is defined as a right to payment, “whether\\nor not the right is reduced to judgment, liquidated, unliquidated, fixed,\\ncontingent, matured, unmatured, disputed, legal, equitable, secured, or\\nunsecured.” Tex. Bus. & Com. Code § 24.002(3). JPMC cites to cases showing\\nthat under Texas law, a claim for breach of contract accrues as soon as the\\ncontract is breached. See Dell Comput. Corp. v. Rodriguez, 390 F.3d 377, 391\\n(5th Cir. 2004)). It argues that, based on the district court’s interpretation of\\nthe MFL clause, JPMC became a creditor of DTC each time DTC entered into\\na more favorable license and failed to give JPMC the benefit of the more\\nfavorable terms. While DTC may have had affirmative defenses to the\\nbreaches, at a minimum JPMC would have had a disputed claim of breach,\\nmaking it a creditor prior to 2011.\\n DTC concedes discovery dating back to a year before or after a claim\\narises is reasonable and appropriate, but disputes that the earlier alleged\\nbreaches are the proper reference point for enforcing a judgment that is not\\n\\n\\n 4 JPMC briefly argues Delaware law might apply, as that is where DTC is\\nincorporated; however, JPMC focuses its briefing on Texas law. Accordingly, we will limit our\\ndiscussion to the fraudulent transfer laws of Texas.\\n 10\\n\\f Case: 18-40043 Document: 00515089895 Page: 11 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nbased on those breaches, regardless of whether JPMC was a possible creditor\\nof DTC prior to 2011. Even if the underlying lawsuit was based on those\\nbreaches, DTC argues JPMC chose to abandon those breaches in its motion for\\nsummary judgment and therefore the judgment, irrespective of the underlying\\nlawsuit, is based solely on the 2012 agreement. As we noted above, JPMC did\\nnot exactly abandon its claims as to the other breaches in its motion for\\nsummary judgment; however, the district court limited its order to the 2012\\nbreach and the amount of the judgment is specifically tied to that one breach.\\n While post-judgment discovery is broad, it is not without limits. See\\nMitchell, 536 F. App’x at 444. Even assuming DTC breached prior to 2012 and\\nJPMC was a creditor within a year of those prior breaches, limiting the post-\\njudgment discovery to the breach on which the judgment is based is reasonable,\\nas Rule 69(a) refers to a judgment creditor, not the expansive definition of\\ncreditor under the Texas Business and Commerce Code. See Fed. R. Civ. P.\\n69(a)(2) (“In aid of the judgment or execution, the judgment creditor or a\\nsuccessor in interest whose interest appears of record may obtain discovery\\nfrom any person—including the judgment debtor—as provided in these rules\\nor by the procedure of the state where the court is located.” (emphasis added)).\\nBecause it is reasonable, it was not an abuse of discretion to limit discovery as\\nthe district court did.\\nC. Proportionality\\n Lastly, JPMC takes issue with the district court’s ruling that discovery\\nas far back as 2006 is not proportional to JPMC’s $69 million judgment. DTC\\nargues that the district court correctly limited discovery to post-June 2011\\nbecause such limitations are “proportional to the needs of the case.”\\n Proportionality is determined by “considering the importance of the\\nissues at stake in the action, the amount in controversy, the parties’ relative\\naccess to relevant information, the parties’ resources, the importance of the\\n 11\\n\\f Case: 18-40043 Document: 00515089895 Page: 12 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\ndiscovery in resolving the issues, and whether the burden or expense of the\\nproposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). DTC\\nasserts pre-2011 discovery has no relevance to the satisfaction of the judgment\\nand would place a significant and undue burden and expense on a company\\nthat has few remaining resources. Because it has archived many of its\\ndocuments, it would cost DTC approximately $110,000 to reload and host the\\ndocuments, plus an additional $6,500 per month to maintain them. These costs\\nare in addition to attorney time spent on reviewing 15 years’ worth of litigation\\nfiles, which DTC claims are unlikely to contain relevant financial documents.\\nThis is exceedingly burdensome to DTC in large part because DTC lost its\\nprincipal source of revenue—enforcing its patents—when legislation passed (at\\nthe behest of banks like JPMC) that eventually led to the invalidation of DTC’s\\npatents in 2015.\\n JPMC responds that its requests were tailored to fund transfers,\\nissuances of dividends, and revenue, and could be aided by search terms—\\nmeaning DTC would not need to peruse 15 years’ worth of litigation files. While\\nJPMC’s requests are slightly broader than it intimates, JPMC points out that\\nDTC voluntarily disclosed, in a one-page summary chart, dividend issuances\\nof over $117 million to its chairman, CEO, and general counsel prior to 2011. 5\\nLastly, JPMC claims DTC did not properly prove and verify 6 its alleged\\n\\n\\n\\n 5 JPMC states only briefly that this shows DTC is not burdened by the pre-2011\\ndiscovery and that this disclosure may have waived DTC’s right to object to pre-2011\\ndiscovery and demonstrates bad faith in DTC’s objections. Because JPMC does not provide\\narguments on these points, they are waived. See United States v. Scroggins, 599 F.3d 433,\\n446–47 (5th Cir. 2010).\\n\\n 6 DTC did submit an email quote explaining the cost of having its files “reloaded,” and\\nJPMC cites no case saying the district court could not have relied on such “unverified”\\nevidence. The district court case JPMC did cite mentions affidavits, but it also allows a\\ndistrict court to consider other “evidence revealing the nature of the burden” on the party\\nresisting discovery. Heller v. City of Dallas, 303 F.R.D. 466, 490 (N.D. Tex. 2014).\\n 12\\n\\f Case: 18-40043 Document: 00515089895 Page: 13 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nexpense of reloading DTC’s document database or how such discovery is\\nburdensome to it. Even if it had, JPMC asserts, the cost to DTC “represents\\nbarely more than one-tenth of one percent of the $69 million (excluding\\ninterest) DTC owes JPMC” and represents even less of DTC’s total revenue.\\nJPMC argues this weighs heavily in its favor, although it does not offer to\\ndefray any of the cost of the discovery outside of reviewing the documents itself.\\nJPMC contends the likelihood of it gaining financial information showing “a\\npattern of siphoning money to insiders and payments of unlawful dividends for\\nwhich JPMC can recover from the transferees and DTC’s directors” shows the\\nlikely benefit of discovery to JPMC “far outweighs” the cost to DTC.\\n Weighing the costs of discovery to DTC with the benefit to JPMC is the\\ntype of judgment call generally best left to the discretion of the district court.\\nSeattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“The trial court is in\\nthe best position to weigh fairly the competing needs and interests of parties\\naffected by discovery.”). The district court’s reference to proportionality was in\\nthe context of considering the judgment as based solely on the 2012 breach;\\nconsidered in that light, pre-2011 discovery could reasonably be considered not\\nproportional to the needs of the case.\\n CONCLUSION\\n We conclude that the district court did not exceed its wide discretion. We\\ntherefore AFFIRM.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4432916/\", \"author_raw\": \"JAMES E. GRAVES, JR., Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HIGGINBOTHAM"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"WILLETT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HIGGINBOTHAM\": \", Circuit\", \"GRAVES\": \", Circuit\", \"WILLETT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4655663/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: JP Morgan Chase Bank, N.A. v. Datatreasury Corpora\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-40043 Document: 00515089895 Page: 1 Date Filed: 08/23/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-40043 FILED\n August 23, 2019\n Lyle W. Cayce\nJP MORGAN CHASE BANK, N.A., Clerk\n\n Plaintiff - Appellant\n\nv.\n\nDATATREASURY CORPORATION,\n\n Defendant - Appellee\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Texas\n\n\nBefore HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.\nJAMES E. GRAVES, JR., Circuit Judge:\n Plaintiff-Appellant JP Morgan Chase Bank (“JMPC”) appeals the\ndistrict court’s denial of its motion to compel certain post-judgment discovery.\nFinding no reversible error, we affirm.\n I. BACKGROUND\nA. The Underlying Case\n The merits of the underlying case were resolved in a previous appeal\nwhich resulted in a published decision. See JP Morgan Chase Bank, N.A. v.\nDataTreasury Corp., 823 F.3d 1006 (5th Cir. 2016) (hereinafter JPMC).\nAccordingly, we provide a summary of the merits only as necessary to\nunderstand the instant post-judgment dispute.\n\f Case: 18-40043 Document: 00515089895 Page: 2 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\n Defendant-Appellee DataTreasury Corporation (“DTC”) used to hold\nseveral patents relating to electronic check-processing systems. JPMC, 823\nF.3d at 1008. To enforce its patents, DTC sued several banks, including JPMC,\nfor alleged willful infringement. Id. In 2005, JPMC was the first bank to settle\nwith DTC. Id. As part of the settlement, JPMC entered a license agreement\nwith DTC wherein JPMC was allowed unlimited use of DTC’s patented check-\nprocessing systems for a total consideration of $70 million. Id. The agreement\nincluded a most-favored licensee (“MFL”) provision which entitled JMPC “to\nthe benefit of any and all more favorable terms with respect to” subsequent\nlicenses granted by DTC to any other persons. Id. at 1009. The MFL clause\nalso outlined notice requirements concerning how DTC was to notify JPMC\neach time DTC entered a new license agreement with more favorable terms.\nId.\n Over the course of several years, DTC entered numerous subsequent\nlicensing agreements. JPMC, 823 F.3d at 1009. In November of 2012, JPMC\nfiled suit against DTC, alleging DTC breached the MFL clause by failing to\nnotify JPMC of the subsequent licenses, many of which “were granted on terms\nsubstantially more favorable than those afforded to JPMC.” Id. Prior to trial,\nJPMC filed a motion for summary judgment specifically seeking the benefit of\nthe more favorable terms granted to Cathay General Bancorp (“Cathay”) on\nOctober 1, 2012, as well as the “other Subsequent Licenses.” See id. Most\nnotably, the Cathay agreement granted Cathay a license for a total\nconsideration of $250,000. Id. DTC responded with its own motions for\nsummary judgment, requesting summary judgment in its favor on its\naffirmative defenses and the applicability of the MFL clause, and requesting a\nfinding of no breach as to certain claims. Id.\n Because JPMC designated the Cathay license as the most favorable, the\ndistrict court only considered the parties’ claims with respect to that particular\n 2\n\f Case: 18-40043 Document: 00515089895 Page: 3 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\nlicense, granting JPMC’s motion in part and denying DTC’s motions. See id. at\n1010. The district court determined that DTC breached the contract by failing\nto notify JPMC of the Cathay license in accordance with the MFL clause and\nthat the broadly worded MFL clause gave JPMC the right to incorporate\nretroactively the more favorable terms of the Cathay license agreement. 1 Id.\nThe district court also found DTC’s affirmative defenses meritless, but again\nonly considered them as they applied to the Cathay license. Id. On appeal, this\ncourt affirmed the district court’s interpretation of the MFL agreement and the\ndismissal of DTC’s affirmative defenses. Id. at 1008.\n In the end, DTC was on the hook to JPMC for $69 million in damages.\nId. at 1010.\nB. Post-Judgment Activity\n Shortly after the district court entered the $69 million judgment in June\n2015, JPMC issued discovery requests and a subpoena to DTC and its law firm\nNix, Patterson & Roach, LLP (“NPR”) regarding the location of DTC’s assets. 2\nJPMC’s initial interrogatories and subpoena did not include a timeframe, and\nDTC objected that such extensive discovery requests were unduly burdensome\nand overbroad because they were not related to the period after execution of\nthe Cathay license agreement. DTC explained it would respond, but it would\nlimit its answers to information dating back to June 9, 2011, as that was the\nearliest date it could have had “notice of a potential claim by or obligation to\nJPMC” because that was the date DTC received a letter from JPMC “raising a\n\n\n\n 1 DTC had argued the MFL clause applied only prospectively (JPMC would not be\nentitled to a refund of payments already made to DTC at the time of a subsequent, more\nfavorable license) rather than retroactively (JPMC would be entitled to a refund of any\npayment already made to DTC over and above the more favorable price).\n 2 While there was some discussion before the district court about the relationship\n\nbetween NPR and DTC for purposes of discovery, the parties’ legal arguments on appeal do\nnot distinguish between discovery requests issued to NPR and DTC. Because the distinction\nis immaterial for purposes of this appeal, we simply refer to them both as “DTC.”\n 3\n\f Case: 18-40043 Document: 00515089895 Page: 4 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\npotential issue about the license between DTC and [JPMC].” DTC filed motions\nto quash and for protective orders, and JPMC filed a motion to compel.\n The district court held a status conference on the motions in March 2017.\nJPMC explained at the hearing that it sought all of DTC’s financial records\nbecause DTC had paid nothing on the judgment and was showing bank\nstatements reflecting insolvency, despite having received nearly $600 million\nin revenue from various license agreements. The district court declined to rule\non the issues at the hearing and directed the parties to meet and confer and\nfile updated status reports. The parties met and conferred but could not resolve\nthe issues. JPMC continued to want discovery dating back to January 2006—\nDTC’s first alleged breach of the MFL clause—to help it uncover any\nfraudulent transfers or improper payments to shareholders. Negotiations\nstalled, and JPMC renewed its motion to compel, requesting an order\noverruling DTC’s objections.\n The district court ultimately sided with DTC. While the district court did\nnot provide a detailed explanation for its ruling, the discovery order mentions\nJune 2011 as the date DTC first had notice of JPMC’s claim. It also asserts\nthat JPMC relied on the 2012 Cathay agreement in its summary judgment\nmotion and the judgment was based on that agreement. In light of these dates\nand the totality of the circumstances, the district court determined JPMC\nsought discovery into matters “well-before the appropriate time period and\nthat [were] not relevant to the Judgment in this case.” JPMC appealed.\n II. LEGAL STANDARD\nA. Standard of Review\n We review a district court’s denial of a discovery request for abuse of\ndiscretion. Pustejovsky v. Pliva, Inc., 623 F.3d 271, 278 (5th Cir. 2010). “A trial\ncourt enjoys wide discretion in determining the scope and effect of discovery,\nand it is therefore unusual to find an abuse of discretion in discovery matters.”\n 4\n\f Case: 18-40043 Document: 00515089895 Page: 5 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\nEqual Emp’t Opportunity Comm’n v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th\nCir. 2017) (quoting Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir. 1982)\n(internal quotation marks omitted)). There is no difference between the\nstandard of review of a pre-trial discovery order and that of a post-judgment\ndiscovery order. See Mitchell v. Sizemore, 536 F. App’x 443, 444 (5th Cir. 2013)\n(applying abuse of discretion standard to district court’s denial of post-\njudgment discovery request); United States v. McWhirter, 376 F.2d 102, 106\n(5th Cir. 1967) (finding the philosophy underlying the discovery provisions of\nthe Federal Rules to apply “with equal force whether the information is sought\nin a pre-trial or in a post-judgment discovery proceeding”). A court abuses its\ndiscretion “when its decision is based on an erroneous view of the law.” Crosby\nv. La. Health Serv. & Indem. Co., 647 F.3d 258, 261 (5th Cir. 2011).\nNevertheless, the district court’s decision should be reversed only in “unusual\nand exceptional” cases, O’Malley v. U.S. Fid. & Guar. Co., 776 F.2d 494, 499\n(5th Cir. 1985) (internal quotation marks omitted), such as where the decision\nis “arbitrary or clearly unreasonable.” Wiwa v. Royal Dutch Petroleum Co., 392\nF.3d 812, 818 (5th Cir. 2004) (quoting Moore v. Willis Indep. Sch. Dist., 233\nF.3d 871, 876 (5th Cir. 2000)). Even if a district court abuses its discretion, the\nreviewing court will not overturn its ruling unless it substantially affects the\nrights of the appellant. N. Cypress Med. Ctr. Operating Co., Ltd. v. Aetna Life\nIns. Co., 898 F.3d 461, 481 (5th Cir. 2018).\nB. Standard for Post-Judgment Discovery\n Federal Rule of Civil Procedure 69(a)(2) allows a judgment creditor to\n“obtain discovery from any person—including the judgment debtor—as\nprovided in these rules or by the procedure of the state where the court is\nlocated.” “Rule 69 was intended to establish an effective and efficient means of\nsecuring the execution of judgments.” McWhirter, 376 F.2d at 106. “The scope\nof postjudgment discovery is very broad to permit a judgment creditor to\n 5\n\f Case: 18-40043 Document: 00515089895 Page: 6 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\ndiscover assets upon which execution may be made.” FDIC v. LeGrand, 43 F.3d\n163, 172 (5th Cir. 1995). To effectuate that purpose, the discovery rules are to\nbe liberally construed. McWhirter, 376 F.2d at 106.\n Nevertheless, “[t]he Federal Rules of Civil Procedure . . . permit the\ndistrict court to limit discovery.” Mitchell, 536 F. App’x at 444 (citing Fed. R.\nCiv. P. 26(b)(1) and (b)(2)(A), (C)). For instance, the discovery must be relevant\nto the purpose of obtaining information on hidden or concealed assets,\nincluding assets that may have been fraudulently transferred. See 13 James\nWm. Moore et al., Moore’s Federal Practice - Civil § 69.04 (2018) (citing Caisson\nCorp. v. Cty. W. Bldg. Corp., 62 F.R.D. 331, 334 (E.D. Pa. 1974)); 12 Charles\nAlan Wright et al., Federal Practice and Procedure Civil § 3014 (2d ed.)\n(updated 2018).\n III. DISCUSSION\n JPMC alleges the district court abused its discretion by denying its\nrequest for discovery prior to June 2011. JPMC argues DTC accrued most of\nits patent-related revenue from 2006 to 2011, but has since dissipated the\nincome, leaving JPMC with an “as yet” uncollectable judgment. According to\nJPMC, it was a creditor of DTC dating back to the first subsequent license\nagreement and breach in 2006, and therefore it should be entitled to financial\ndiscovery back to that date so it can determine if DTC made fraudulent\ntransfers to avoid financial obligations to JPMC. DTC’s counter-argument is\nsimple—JPMC’s judgment is based on the 2012 Cathay license agreement, and\ntherefore discovery should be limited to that particular breach.\nA. DTC’s Prior Breaches\n 1. Notice of JPMC’s Potential Claims\n One of JPMC’s main arguments is that the district court abused its\ndiscretion by erroneously finding DTC had no notice of any potential claim by\nJPMC until June 2011. JPMC argues, and it is essentially undisputed, that\n 6\n\f Case: 18-40043 Document: 00515089895 Page: 7 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\nDTC entered subsequent license agreements with more favorable price terms\nas early as January 2006. See JPMC, 823 F.3d at 1019. It is also undisputed\nthat DTC did not give JPMC the benefit of any more favorable price terms, nor\ndid it notify JPMC of the subsequent licenses as required by the MFL clause.\nTherefore, according to JPMC, the district court clearly erred when it found\nJune 9, 2011 to be relevant to DTC’s awareness of its breach and corresponding\nfinancial obligations to JPMC; DTC was aware of its own actions that\nconstituted the breach, and it was these actions that prohibited JPMC from\nknowing of any breach and notifying DTC of a dispute earlier.\n JPMC further urges that DTC cannot hide behind its interpretation of\nthe MFL clause to allege it had no notice of potential claims by JPMC. Even\nunder DTC’s interpretation of the contract, 3 DTC would have known it\nbreached the agreement each time it failed to notify JPMC of subsequent, more\nfavorable licenses and to pass on the more favorable terms. Because DTC\nwould have known of its potential financial obligations every time it accepted\na new payment from JPMC, transfers made after 2006 could in theory have\nbeen a way to hide assets from a future claim by JPMC.\n DTC repeats multiple times that it had no notice of JPMC’s potential\nclaims until 2011; however, it does not make any real argument on this point.\nWe agree that the district court’s reliance on the June 2011 date as relevant to\nDTC’s knowledge of any potential claims by JPMC is clearly erroneous.\nNevertheless, the district court also based its denial on the judgment itself and\nthe “totality of the circumstances,” so we find any weight the district court\naccorded the June 2011 date to be harmless.\n\n\n\n\n 3 As a reminder, DTC argued the MFL clause only applied prospectively, meaning\nJPMC would not be entitled to reimbursement of any amount it had already paid DTC in\nexcess of the value of the new license agreement.\n 7\n\f Case: 18-40043 Document: 00515089895 Page: 8 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\n 2. The Judgment Itself\n The next main point of contention between the parties is whether the\njudgment relates to all DTC’s alleged breaches, or simply the 2012 Cathay\nagreement. DTC contends that the judgment, and JPMC’s summary judgment\nmotion upon which the judgment is based, only considered the 2012 Cathay\nagreement and breach. Therefore, post-judgment discovery should revolve\naround that agreement. In this regard, DTC notes that while the district court\nfound DTC breached the MFL clause by not notifying JPMC of the 2012 Cathay\nlicense agreement, no court found DTC to have breached the MFL clause at\nany other point in time, and JPMC, a sophisticated party with sophisticated\ncounsel, made a deliberate decision to narrow its summary judgment motion\nto the Cathay agreement. According to DTC, any other alleged breaches are\nirrelevant to JPMC’s judgment, and JPMC should be barred from seeking relief\nbased on additional breaches of the MFL clause by the doctrine of res judicata.\n While we agree with DTC that the judgment only pertains to the 2012\nagreement, DTC’s characterization of JPMC’s motion is not completely\naccurate. JPMC’s summary judgment motion did in fact seek relief on the other\nlicenses/breaches in addition to the Cathay license; however, JPMC noted that\nas to particular terms, it could only seek the benefit of one license. It therefore\nchose to focus on the Cathay license, although it mentioned the analysis in its\nmotion applied equally to each more favorable term in the additional licenses.\nThe district court acknowledged JPMC’s admission and emphasized in its\norder that it was specifically limiting its consideration of JPMC’s claims to the\nCathay license.\n In this vein, DTC points out that even if it had breached the MFL clause\nprior to the 2012 Cathay agreement, it raised affirmative defenses to those\nbreaches which the district court did not consider. In fact, DTC contends\nJPMC’s reason for limiting its summary judgment motion to the 2012 Cathay\n 8\n\f Case: 18-40043 Document: 00515089895 Page: 9 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\nagreement was “strategically” to avoid DTC’s affirmative defenses. While the\nimplied strength of DTC’s affirmative defenses is probably overstated, JPMC\ndid make a conscious choice to seek the benefit of the Cathay license agreement\nover other subsequent licenses. For instance, one of the licenses JPMC\nsubmitted in its summary judgment motion had a price term of $39,500, an\neven more favorable price term than the Cathay license. The license was\nentered into around the same time as the Cathay license, so it is unclear why\nJPMC chose not to seek the benefit of that license. It could easily have been\nbecause the license contained other less favorable terms, but perhaps it was\nbecause an affirmative defense applied to it. Even if it is unlikely DTC’s\naffirmative defenses would have succeeded, we will never know for sure\nbecause DTC’s affirmative defenses were only reviewed by the district court as\nto the 2012 breach.\n Ultimately, while JPMC did ask the district court to make a finding of\nbreach as to the other licenses, the district court declined, limiting its analysis\nto the Cathay license which then formed the basis for JPMC’s judgment. In\naddition, even assuming the district court’s order assumed or found other\nbreaches of the MFL clause, the amount of the judgment is specifically tied to\nthe Cathay license. While JPMC argues limiting the discovery to this\nagreement gives DTC the benefit of its other breaches, it is not clearly entitled\nto damages on those other breaches. It therefore would be reasonable for the\ndistrict court to tie discovery to a time period associated with the Cathay\nagreement. Because that is what the district court chose to do, it did not abuse\nits discretion.\nB. Fraudulent Transfers\n JPMC contends it deserves discovery dating back to 2006 so it can\ndiscover and understand the present location of DTC’s funds, DTC’s transfer\nof any monies, and whether any of the transfers are subject to avoidance\n 9\n\f Case: 18-40043 Document: 00515089895 Page: 10 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\nclaims. DTC asserts that even if JPMC’s allegations of fraudulent transfers\nhad merit, Texas law would govern such a dispute, and Texas law defines a\nfraudulent transfer only as one where “the creditor’s claim arose before or\nwithin a reasonable time after the transfer was made or the obligation was\nincurred.” DTC argues 2006 is not a reasonable time before JPMC’s claim arose\nin 2012, while 2011 is. JPMC does not concede that Texas law applies, 4 but it\ndoes not dispute that a fraudulent transfer must occur within a reasonable\ntime, either before or after, a creditor’s claim arose. The real issue between the\ntwo parties here is when JPMC’s claim arose.\n “Creditor” under Texas law is defined as one who has a claim. Tex. Bus.\n& Com. Code § 24.002(4). “Claim” is defined as a right to payment, “whether\nor not the right is reduced to judgment, liquidated, unliquidated, fixed,\ncontingent, matured, unmatured, disputed, legal, equitable, secured, or\nunsecured.” Tex. Bus. & Com. Code § 24.002(3). JPMC cites to cases showing\nthat under Texas law, a claim for breach of contract accrues as soon as the\ncontract is breached. See Dell Comput. Corp. v. Rodriguez, 390 F.3d 377, 391\n(5th Cir. 2004)). It argues that, based on the district court’s interpretation of\nthe MFL clause, JPMC became a creditor of DTC each time DTC entered into\na more favorable license and failed to give JPMC the benefit of the more\nfavorable terms. While DTC may have had affirmative defenses to the\nbreaches, at a minimum JPMC would have had a disputed claim of breach,\nmaking it a creditor prior to 2011.\n DTC concedes discovery dating back to a year before or after a claim\narises is reasonable and appropriate, but disputes that the earlier alleged\nbreaches are the proper reference point for enforcing a judgment that is not\n\n\n 4 JPMC briefly argues Delaware law might apply, as that is where DTC is\nincorporated; however, JPMC focuses its briefing on Texas law. Accordingly, we will limit our\ndiscussion to the fraudulent transfer laws of Texas.\n 10\n\f Case: 18-40043 Document: 00515089895 Page: 11 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\nbased on those breaches, regardless of whether JPMC was a possible creditor\nof DTC prior to 2011. Even if the underlying lawsuit was based on those\nbreaches, DTC argues JPMC chose to abandon those breaches in its motion for\nsummary judgment and therefore the judgment, irrespective of the underlying\nlawsuit, is based solely on the 2012 agreement. As we noted above, JPMC did\nnot exactly abandon its claims as to the other breaches in its motion for\nsummary judgment; however, the district court limited its order to the 2012\nbreach and the amount of the judgment is specifically tied to that one breach.\n While post-judgment discovery is broad, it is not without limits. See\nMitchell, 536 F. App’x at 444. Even assuming DTC breached prior to 2012 and\nJPMC was a creditor within a year of those prior breaches, limiting the post-\njudgment discovery to the breach on which the judgment is based is reasonable,\nas Rule 69(a) refers to a judgment creditor, not the expansive definition of\ncreditor under the Texas Business and Commerce Code. See Fed. R. Civ. P.\n69(a)(2) (“In aid of the judgment or execution, the judgment creditor or a\nsuccessor in interest whose interest appears of record may obtain discovery\nfrom any person—including the judgment debtor—as provided in these rules\nor by the procedure of the state where the court is located.” (emphasis added)).\nBecause it is reasonable, it was not an abuse of discretion to limit discovery as\nthe district court did.\nC. Proportionality\n Lastly, JPMC takes issue with the district court’s ruling that discovery\nas far back as 2006 is not proportional to JPMC’s $69 million judgment. DTC\nargues that the district court correctly limited discovery to post-June 2011\nbecause such limitations are “proportional to the needs of the case.”\n Proportionality is determined by “considering the importance of the\nissues at stake in the action, the amount in controversy, the parties’ relative\naccess to relevant information, the parties’ resources, the importance of the\n 11\n\f Case: 18-40043 Document: 00515089895 Page: 12 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\ndiscovery in resolving the issues, and whether the burden or expense of the\nproposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). DTC\nasserts pre-2011 discovery has no relevance to the satisfaction of the judgment\nand would place a significant and undue burden and expense on a company\nthat has few remaining resources. Because it has archived many of its\ndocuments, it would cost DTC approximately $110,000 to reload and host the\ndocuments, plus an additional $6,500 per month to maintain them. These costs\nare in addition to attorney time spent on reviewing 15 years’ worth of litigation\nfiles, which DTC claims are unlikely to contain relevant financial documents.\nThis is exceedingly burdensome to DTC in large part because DTC lost its\nprincipal source of revenue—enforcing its patents—when legislation passed (at\nthe behest of banks like JPMC) that eventually led to the invalidation of DTC’s\npatents in 2015.\n JPMC responds that its requests were tailored to fund transfers,\nissuances of dividends, and revenue, and could be aided by search terms—\nmeaning DTC would not need to peruse 15 years’ worth of litigation files. While\nJPMC’s requests are slightly broader than it intimates, JPMC points out that\nDTC voluntarily disclosed, in a one-page summary chart, dividend issuances\nof over $117 million to its chairman, CEO, and general counsel prior to 2011. 5\nLastly, JPMC claims DTC did not properly prove and verify 6 its alleged\n\n\n\n 5 JPMC states only briefly that this shows DTC is not burdened by the pre-2011\ndiscovery and that this disclosure may have waived DTC’s right to object to pre-2011\ndiscovery and demonstrates bad faith in DTC’s objections. Because JPMC does not provide\narguments on these points, they are waived. See United States v. Scroggins, 599 F.3d 433,\n446–47 (5th Cir. 2010).\n\n 6 DTC did submit an email quote explaining the cost of having its files “reloaded,” and\nJPMC cites no case saying the district court could not have relied on such “unverified”\nevidence. The district court case JPMC did cite mentions affidavits, but it also allows a\ndistrict court to consider other “evidence revealing the nature of the burden” on the party\nresisting discovery. Heller v. City of Dallas, 303 F.R.D. 466, 490 (N.D. Tex. 2014).\n 12\n\f Case: 18-40043 Document: 00515089895 Page: 13 Date Filed: 08/23/2019\n\n\n\n No. 18-40043\nexpense of reloading DTC’s document database or how such discovery is\nburdensome to it. Even if it had, JPMC asserts, the cost to DTC “represents\nbarely more than one-tenth of one percent of the $69 million (excluding\ninterest) DTC owes JPMC” and represents even less of DTC’s total revenue.\nJPMC argues this weighs heavily in its favor, although it does not offer to\ndefray any of the cost of the discovery outside of reviewing the documents itself.\nJPMC contends the likelihood of it gaining financial information showing “a\npattern of siphoning money to insiders and payments of unlawful dividends for\nwhich JPMC can recover from the transferees and DTC’s directors” shows the\nlikely benefit of discovery to JPMC “far outweighs” the cost to DTC.\n Weighing the costs of discovery to DTC with the benefit to JPMC is the\ntype of judgment call generally best left to the discretion of the district court.\nSeattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“The trial court is in\nthe best position to weigh fairly the competing needs and interests of parties\naffected by discovery.”). The district court’s reference to proportionality was in\nthe context of considering the judgment as based solely on the 2012 breach;\nconsidered in that light, pre-2011 discovery could reasonably be considered not\nproportional to the needs of the case.\n CONCLUSION\n We conclude that the district court did not exceed its wide discretion. We\ntherefore AFFIRM.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: JP Morgan Chase Bank, N.A. v. Datatreasury Corpora\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-40043 Document: 00515089895 Page: 1 Date Filed: 08/23/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-40043 FILED\\n August 23, 2019\\n Lyle W. Cayce\\nJP MORGAN CHASE BANK, N.A., Clerk\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nDATATREASURY CORPORATION,\\n\\n Defendant - Appellee\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Texas\\n\\n\\nBefore HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.\\nJAMES E. GRAVES, JR., Circuit Judge:\\n Plaintiff-Appellant JP Morgan Chase Bank (“JMPC”) appeals the\\ndistrict court’s denial of its motion to compel certain post-judgment discovery.\\nFinding no reversible error, we affirm.\\n I. BACKGROUND\\nA. The Underlying Case\\n The merits of the underlying case were resolved in a previous appeal\\nwhich resulted in a published decision. See JP Morgan Chase Bank, N.A. v.\\nDataTreasury Corp., 823 F.3d 1006 (5th Cir. 2016) (hereinafter JPMC).\\nAccordingly, we provide a summary of the merits only as necessary to\\nunderstand the instant post-judgment dispute.\\n\\f Case: 18-40043 Document: 00515089895 Page: 2 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\n Defendant-Appellee DataTreasury Corporation (“DTC”) used to hold\\nseveral patents relating to electronic check-processing systems. JPMC, 823\\nF.3d at 1008. To enforce its patents, DTC sued several banks, including JPMC,\\nfor alleged willful infringement. Id. In 2005, JPMC was the first bank to settle\\nwith DTC. Id. As part of the settlement, JPMC entered a license agreement\\nwith DTC wherein JPMC was allowed unlimited use of DTC’s patented check-\\nprocessing systems for a total consideration of $70 million. Id. The agreement\\nincluded a most-favored licensee (“MFL”) provision which entitled JMPC “to\\nthe benefit of any and all more favorable terms with respect to” subsequent\\nlicenses granted by DTC to any other persons. Id. at 1009. The MFL clause\\nalso outlined notice requirements concerning how DTC was to notify JPMC\\neach time DTC entered a new license agreement with more favorable terms.\\nId.\\n Over the course of several years, DTC entered numerous subsequent\\nlicensing agreements. JPMC, 823 F.3d at 1009. In November of 2012, JPMC\\nfiled suit against DTC, alleging DTC breached the MFL clause by failing to\\nnotify JPMC of the subsequent licenses, many of which “were granted on terms\\nsubstantially more favorable than those afforded to JPMC.” Id. Prior to trial,\\nJPMC filed a motion for summary judgment specifically seeking the benefit of\\nthe more favorable terms granted to Cathay General Bancorp (“Cathay”) on\\nOctober 1, 2012, as well as the “other Subsequent Licenses.” See id. Most\\nnotably, the Cathay agreement granted Cathay a license for a total\\nconsideration of $250,000. Id. DTC responded with its own motions for\\nsummary judgment, requesting summary judgment in its favor on its\\naffirmative defenses and the applicability of the MFL clause, and requesting a\\nfinding of no breach as to certain claims. Id.\\n Because JPMC designated the Cathay license as the most favorable, the\\ndistrict court only considered the parties’ claims with respect to that particular\\n 2\\n\\f Case: 18-40043 Document: 00515089895 Page: 3 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nlicense, granting JPMC’s motion in part and denying DTC’s motions. See id. at\\n1010. The district court determined that DTC breached the contract by failing\\nto notify JPMC of the Cathay license in accordance with the MFL clause and\\nthat the broadly worded MFL clause gave JPMC the right to incorporate\\nretroactively the more favorable terms of the Cathay license agreement. 1 Id.\\nThe district court also found DTC’s affirmative defenses meritless, but again\\nonly considered them as they applied to the Cathay license. Id. On appeal, this\\ncourt affirmed the district court’s interpretation of the MFL agreement and the\\ndismissal of DTC’s affirmative defenses. Id. at 1008.\\n In the end, DTC was on the hook to JPMC for $69 million in damages.\\nId. at 1010.\\nB. Post-Judgment Activity\\n Shortly after the district court entered the $69 million judgment in June\\n2015, JPMC issued discovery requests and a subpoena to DTC and its law firm\\nNix, Patterson & Roach, LLP (“NPR”) regarding the location of DTC’s assets. 2\\nJPMC’s initial interrogatories and subpoena did not include a timeframe, and\\nDTC objected that such extensive discovery requests were unduly burdensome\\nand overbroad because they were not related to the period after execution of\\nthe Cathay license agreement. DTC explained it would respond, but it would\\nlimit its answers to information dating back to June 9, 2011, as that was the\\nearliest date it could have had “notice of a potential claim by or obligation to\\nJPMC” because that was the date DTC received a letter from JPMC “raising a\\n\\n\\n\\n 1 DTC had argued the MFL clause applied only prospectively (JPMC would not be\\nentitled to a refund of payments already made to DTC at the time of a subsequent, more\\nfavorable license) rather than retroactively (JPMC would be entitled to a refund of any\\npayment already made to DTC over and above the more favorable price).\\n 2 While there was some discussion before the district court about the relationship\\n\\nbetween NPR and DTC for purposes of discovery, the parties’ legal arguments on appeal do\\nnot distinguish between discovery requests issued to NPR and DTC. Because the distinction\\nis immaterial for purposes of this appeal, we simply refer to them both as “DTC.”\\n 3\\n\\f Case: 18-40043 Document: 00515089895 Page: 4 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\npotential issue about the license between DTC and [JPMC].” DTC filed motions\\nto quash and for protective orders, and JPMC filed a motion to compel.\\n The district court held a status conference on the motions in March 2017.\\nJPMC explained at the hearing that it sought all of DTC’s financial records\\nbecause DTC had paid nothing on the judgment and was showing bank\\nstatements reflecting insolvency, despite having received nearly $600 million\\nin revenue from various license agreements. The district court declined to rule\\non the issues at the hearing and directed the parties to meet and confer and\\nfile updated status reports. The parties met and conferred but could not resolve\\nthe issues. JPMC continued to want discovery dating back to January 2006—\\nDTC’s first alleged breach of the MFL clause—to help it uncover any\\nfraudulent transfers or improper payments to shareholders. Negotiations\\nstalled, and JPMC renewed its motion to compel, requesting an order\\noverruling DTC’s objections.\\n The district court ultimately sided with DTC. While the district court did\\nnot provide a detailed explanation for its ruling, the discovery order mentions\\nJune 2011 as the date DTC first had notice of JPMC’s claim. It also asserts\\nthat JPMC relied on the 2012 Cathay agreement in its summary judgment\\nmotion and the judgment was based on that agreement. In light of these dates\\nand the totality of the circumstances, the district court determined JPMC\\nsought discovery into matters “well-before the appropriate time period and\\nthat [were] not relevant to the Judgment in this case.” JPMC appealed.\\n II. LEGAL STANDARD\\nA. Standard of Review\\n We review a district court’s denial of a discovery request for abuse of\\ndiscretion. Pustejovsky v. Pliva, Inc., 623 F.3d 271, 278 (5th Cir. 2010). “A trial\\ncourt enjoys wide discretion in determining the scope and effect of discovery,\\nand it is therefore unusual to find an abuse of discretion in discovery matters.”\\n 4\\n\\f Case: 18-40043 Document: 00515089895 Page: 5 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nEqual Emp’t Opportunity Comm’n v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th\\nCir. 2017) (quoting Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir. 1982)\\n(internal quotation marks omitted)). There is no difference between the\\nstandard of review of a pre-trial discovery order and that of a post-judgment\\ndiscovery order. See Mitchell v. Sizemore, 536 F. App’x 443, 444 (5th Cir. 2013)\\n(applying abuse of discretion standard to district court’s denial of post-\\njudgment discovery request); United States v. McWhirter, 376 F.2d 102, 106\\n(5th Cir. 1967) (finding the philosophy underlying the discovery provisions of\\nthe Federal Rules to apply “with equal force whether the information is sought\\nin a pre-trial or in a post-judgment discovery proceeding”). A court abuses its\\ndiscretion “when its decision is based on an erroneous view of the law.” Crosby\\nv. La. Health Serv. & Indem. Co., 647 F.3d 258, 261 (5th Cir. 2011).\\nNevertheless, the district court’s decision should be reversed only in “unusual\\nand exceptional” cases, O’Malley v. U.S. Fid. & Guar. Co., 776 F.2d 494, 499\\n(5th Cir. 1985) (internal quotation marks omitted), such as where the decision\\nis “arbitrary or clearly unreasonable.” Wiwa v. Royal Dutch Petroleum Co., 392\\nF.3d 812, 818 (5th Cir. 2004) (quoting Moore v. Willis Indep. Sch. Dist., 233\\nF.3d 871, 876 (5th Cir. 2000)). Even if a district court abuses its discretion, the\\nreviewing court will not overturn its ruling unless it substantially affects the\\nrights of the appellant. N. Cypress Med. Ctr. Operating Co., Ltd. v. Aetna Life\\nIns. Co., 898 F.3d 461, 481 (5th Cir. 2018).\\nB. Standard for Post-Judgment Discovery\\n Federal Rule of Civil Procedure 69(a)(2) allows a judgment creditor to\\n“obtain discovery from any person—including the judgment debtor—as\\nprovided in these rules or by the procedure of the state where the court is\\nlocated.” “Rule 69 was intended to establish an effective and efficient means of\\nsecuring the execution of judgments.” McWhirter, 376 F.2d at 106. “The scope\\nof postjudgment discovery is very broad to permit a judgment creditor to\\n 5\\n\\f Case: 18-40043 Document: 00515089895 Page: 6 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\ndiscover assets upon which execution may be made.” FDIC v. LeGrand, 43 F.3d\\n163, 172 (5th Cir. 1995). To effectuate that purpose, the discovery rules are to\\nbe liberally construed. McWhirter, 376 F.2d at 106.\\n Nevertheless, “[t]he Federal Rules of Civil Procedure . . . permit the\\ndistrict court to limit discovery.” Mitchell, 536 F. App’x at 444 (citing Fed. R.\\nCiv. P. 26(b)(1) and (b)(2)(A), (C)). For instance, the discovery must be relevant\\nto the purpose of obtaining information on hidden or concealed assets,\\nincluding assets that may have been fraudulently transferred. See 13 James\\nWm. Moore et al., Moore’s Federal Practice - Civil § 69.04 (2018) (citing Caisson\\nCorp. v. Cty. W. Bldg. Corp., 62 F.R.D. 331, 334 (E.D. Pa. 1974)); 12 Charles\\nAlan Wright et al., Federal Practice and Procedure Civil § 3014 (2d ed.)\\n(updated 2018).\\n III. DISCUSSION\\n JPMC alleges the district court abused its discretion by denying its\\nrequest for discovery prior to June 2011. JPMC argues DTC accrued most of\\nits patent-related revenue from 2006 to 2011, but has since dissipated the\\nincome, leaving JPMC with an “as yet” uncollectable judgment. According to\\nJPMC, it was a creditor of DTC dating back to the first subsequent license\\nagreement and breach in 2006, and therefore it should be entitled to financial\\ndiscovery back to that date so it can determine if DTC made fraudulent\\ntransfers to avoid financial obligations to JPMC. DTC’s counter-argument is\\nsimple—JPMC’s judgment is based on the 2012 Cathay license agreement, and\\ntherefore discovery should be limited to that particular breach.\\nA. DTC’s Prior Breaches\\n 1. Notice of JPMC’s Potential Claims\\n One of JPMC’s main arguments is that the district court abused its\\ndiscretion by erroneously finding DTC had no notice of any potential claim by\\nJPMC until June 2011. JPMC argues, and it is essentially undisputed, that\\n 6\\n\\f Case: 18-40043 Document: 00515089895 Page: 7 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nDTC entered subsequent license agreements with more favorable price terms\\nas early as January 2006. See JPMC, 823 F.3d at 1019. It is also undisputed\\nthat DTC did not give JPMC the benefit of any more favorable price terms, nor\\ndid it notify JPMC of the subsequent licenses as required by the MFL clause.\\nTherefore, according to JPMC, the district court clearly erred when it found\\nJune 9, 2011 to be relevant to DTC’s awareness of its breach and corresponding\\nfinancial obligations to JPMC; DTC was aware of its own actions that\\nconstituted the breach, and it was these actions that prohibited JPMC from\\nknowing of any breach and notifying DTC of a dispute earlier.\\n JPMC further urges that DTC cannot hide behind its interpretation of\\nthe MFL clause to allege it had no notice of potential claims by JPMC. Even\\nunder DTC’s interpretation of the contract, 3 DTC would have known it\\nbreached the agreement each time it failed to notify JPMC of subsequent, more\\nfavorable licenses and to pass on the more favorable terms. Because DTC\\nwould have known of its potential financial obligations every time it accepted\\na new payment from JPMC, transfers made after 2006 could in theory have\\nbeen a way to hide assets from a future claim by JPMC.\\n DTC repeats multiple times that it had no notice of JPMC’s potential\\nclaims until 2011; however, it does not make any real argument on this point.\\nWe agree that the district court’s reliance on the June 2011 date as relevant to\\nDTC’s knowledge of any potential claims by JPMC is clearly erroneous.\\nNevertheless, the district court also based its denial on the judgment itself and\\nthe “totality of the circumstances,” so we find any weight the district court\\naccorded the June 2011 date to be harmless.\\n\\n\\n\\n\\n 3 As a reminder, DTC argued the MFL clause only applied prospectively, meaning\\nJPMC would not be entitled to reimbursement of any amount it had already paid DTC in\\nexcess of the value of the new license agreement.\\n 7\\n\\f Case: 18-40043 Document: 00515089895 Page: 8 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\n 2. The Judgment Itself\\n The next main point of contention between the parties is whether the\\njudgment relates to all DTC’s alleged breaches, or simply the 2012 Cathay\\nagreement. DTC contends that the judgment, and JPMC’s summary judgment\\nmotion upon which the judgment is based, only considered the 2012 Cathay\\nagreement and breach. Therefore, post-judgment discovery should revolve\\naround that agreement. In this regard, DTC notes that while the district court\\nfound DTC breached the MFL clause by not notifying JPMC of the 2012 Cathay\\nlicense agreement, no court found DTC to have breached the MFL clause at\\nany other point in time, and JPMC, a sophisticated party with sophisticated\\ncounsel, made a deliberate decision to narrow its summary judgment motion\\nto the Cathay agreement. According to DTC, any other alleged breaches are\\nirrelevant to JPMC’s judgment, and JPMC should be barred from seeking relief\\nbased on additional breaches of the MFL clause by the doctrine of res judicata.\\n While we agree with DTC that the judgment only pertains to the 2012\\nagreement, DTC’s characterization of JPMC’s motion is not completely\\naccurate. JPMC’s summary judgment motion did in fact seek relief on the other\\nlicenses/breaches in addition to the Cathay license; however, JPMC noted that\\nas to particular terms, it could only seek the benefit of one license. It therefore\\nchose to focus on the Cathay license, although it mentioned the analysis in its\\nmotion applied equally to each more favorable term in the additional licenses.\\nThe district court acknowledged JPMC’s admission and emphasized in its\\norder that it was specifically limiting its consideration of JPMC’s claims to the\\nCathay license.\\n In this vein, DTC points out that even if it had breached the MFL clause\\nprior to the 2012 Cathay agreement, it raised affirmative defenses to those\\nbreaches which the district court did not consider. In fact, DTC contends\\nJPMC’s reason for limiting its summary judgment motion to the 2012 Cathay\\n 8\\n\\f Case: 18-40043 Document: 00515089895 Page: 9 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nagreement was “strategically” to avoid DTC’s affirmative defenses. While the\\nimplied strength of DTC’s affirmative defenses is probably overstated, JPMC\\ndid make a conscious choice to seek the benefit of the Cathay license agreement\\nover other subsequent licenses. For instance, one of the licenses JPMC\\nsubmitted in its summary judgment motion had a price term of $39,500, an\\neven more favorable price term than the Cathay license. The license was\\nentered into around the same time as the Cathay license, so it is unclear why\\nJPMC chose not to seek the benefit of that license. It could easily have been\\nbecause the license contained other less favorable terms, but perhaps it was\\nbecause an affirmative defense applied to it. Even if it is unlikely DTC’s\\naffirmative defenses would have succeeded, we will never know for sure\\nbecause DTC’s affirmative defenses were only reviewed by the district court as\\nto the 2012 breach.\\n Ultimately, while JPMC did ask the district court to make a finding of\\nbreach as to the other licenses, the district court declined, limiting its analysis\\nto the Cathay license which then formed the basis for JPMC’s judgment. In\\naddition, even assuming the district court’s order assumed or found other\\nbreaches of the MFL clause, the amount of the judgment is specifically tied to\\nthe Cathay license. While JPMC argues limiting the discovery to this\\nagreement gives DTC the benefit of its other breaches, it is not clearly entitled\\nto damages on those other breaches. It therefore would be reasonable for the\\ndistrict court to tie discovery to a time period associated with the Cathay\\nagreement. Because that is what the district court chose to do, it did not abuse\\nits discretion.\\nB. Fraudulent Transfers\\n JPMC contends it deserves discovery dating back to 2006 so it can\\ndiscover and understand the present location of DTC’s funds, DTC’s transfer\\nof any monies, and whether any of the transfers are subject to avoidance\\n 9\\n\\f Case: 18-40043 Document: 00515089895 Page: 10 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nclaims. DTC asserts that even if JPMC’s allegations of fraudulent transfers\\nhad merit, Texas law would govern such a dispute, and Texas law defines a\\nfraudulent transfer only as one where “the creditor’s claim arose before or\\nwithin a reasonable time after the transfer was made or the obligation was\\nincurred.” DTC argues 2006 is not a reasonable time before JPMC’s claim arose\\nin 2012, while 2011 is. JPMC does not concede that Texas law applies, 4 but it\\ndoes not dispute that a fraudulent transfer must occur within a reasonable\\ntime, either before or after, a creditor’s claim arose. The real issue between the\\ntwo parties here is when JPMC’s claim arose.\\n “Creditor” under Texas law is defined as one who has a claim. Tex. Bus.\\n& Com. Code § 24.002(4). “Claim” is defined as a right to payment, “whether\\nor not the right is reduced to judgment, liquidated, unliquidated, fixed,\\ncontingent, matured, unmatured, disputed, legal, equitable, secured, or\\nunsecured.” Tex. Bus. & Com. Code § 24.002(3). JPMC cites to cases showing\\nthat under Texas law, a claim for breach of contract accrues as soon as the\\ncontract is breached. See Dell Comput. Corp. v. Rodriguez, 390 F.3d 377, 391\\n(5th Cir. 2004)). It argues that, based on the district court’s interpretation of\\nthe MFL clause, JPMC became a creditor of DTC each time DTC entered into\\na more favorable license and failed to give JPMC the benefit of the more\\nfavorable terms. While DTC may have had affirmative defenses to the\\nbreaches, at a minimum JPMC would have had a disputed claim of breach,\\nmaking it a creditor prior to 2011.\\n DTC concedes discovery dating back to a year before or after a claim\\narises is reasonable and appropriate, but disputes that the earlier alleged\\nbreaches are the proper reference point for enforcing a judgment that is not\\n\\n\\n 4 JPMC briefly argues Delaware law might apply, as that is where DTC is\\nincorporated; however, JPMC focuses its briefing on Texas law. Accordingly, we will limit our\\ndiscussion to the fraudulent transfer laws of Texas.\\n 10\\n\\f Case: 18-40043 Document: 00515089895 Page: 11 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nbased on those breaches, regardless of whether JPMC was a possible creditor\\nof DTC prior to 2011. Even if the underlying lawsuit was based on those\\nbreaches, DTC argues JPMC chose to abandon those breaches in its motion for\\nsummary judgment and therefore the judgment, irrespective of the underlying\\nlawsuit, is based solely on the 2012 agreement. As we noted above, JPMC did\\nnot exactly abandon its claims as to the other breaches in its motion for\\nsummary judgment; however, the district court limited its order to the 2012\\nbreach and the amount of the judgment is specifically tied to that one breach.\\n While post-judgment discovery is broad, it is not without limits. See\\nMitchell, 536 F. App’x at 444. Even assuming DTC breached prior to 2012 and\\nJPMC was a creditor within a year of those prior breaches, limiting the post-\\njudgment discovery to the breach on which the judgment is based is reasonable,\\nas Rule 69(a) refers to a judgment creditor, not the expansive definition of\\ncreditor under the Texas Business and Commerce Code. See Fed. R. Civ. P.\\n69(a)(2) (“In aid of the judgment or execution, the judgment creditor or a\\nsuccessor in interest whose interest appears of record may obtain discovery\\nfrom any person—including the judgment debtor—as provided in these rules\\nor by the procedure of the state where the court is located.” (emphasis added)).\\nBecause it is reasonable, it was not an abuse of discretion to limit discovery as\\nthe district court did.\\nC. Proportionality\\n Lastly, JPMC takes issue with the district court’s ruling that discovery\\nas far back as 2006 is not proportional to JPMC’s $69 million judgment. DTC\\nargues that the district court correctly limited discovery to post-June 2011\\nbecause such limitations are “proportional to the needs of the case.”\\n Proportionality is determined by “considering the importance of the\\nissues at stake in the action, the amount in controversy, the parties’ relative\\naccess to relevant information, the parties’ resources, the importance of the\\n 11\\n\\f Case: 18-40043 Document: 00515089895 Page: 12 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\ndiscovery in resolving the issues, and whether the burden or expense of the\\nproposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). DTC\\nasserts pre-2011 discovery has no relevance to the satisfaction of the judgment\\nand would place a significant and undue burden and expense on a company\\nthat has few remaining resources. Because it has archived many of its\\ndocuments, it would cost DTC approximately $110,000 to reload and host the\\ndocuments, plus an additional $6,500 per month to maintain them. These costs\\nare in addition to attorney time spent on reviewing 15 years’ worth of litigation\\nfiles, which DTC claims are unlikely to contain relevant financial documents.\\nThis is exceedingly burdensome to DTC in large part because DTC lost its\\nprincipal source of revenue—enforcing its patents—when legislation passed (at\\nthe behest of banks like JPMC) that eventually led to the invalidation of DTC’s\\npatents in 2015.\\n JPMC responds that its requests were tailored to fund transfers,\\nissuances of dividends, and revenue, and could be aided by search terms—\\nmeaning DTC would not need to peruse 15 years’ worth of litigation files. While\\nJPMC’s requests are slightly broader than it intimates, JPMC points out that\\nDTC voluntarily disclosed, in a one-page summary chart, dividend issuances\\nof over $117 million to its chairman, CEO, and general counsel prior to 2011. 5\\nLastly, JPMC claims DTC did not properly prove and verify 6 its alleged\\n\\n\\n\\n 5 JPMC states only briefly that this shows DTC is not burdened by the pre-2011\\ndiscovery and that this disclosure may have waived DTC’s right to object to pre-2011\\ndiscovery and demonstrates bad faith in DTC’s objections. Because JPMC does not provide\\narguments on these points, they are waived. See United States v. Scroggins, 599 F.3d 433,\\n446–47 (5th Cir. 2010).\\n\\n 6 DTC did submit an email quote explaining the cost of having its files “reloaded,” and\\nJPMC cites no case saying the district court could not have relied on such “unverified”\\nevidence. The district court case JPMC did cite mentions affidavits, but it also allows a\\ndistrict court to consider other “evidence revealing the nature of the burden” on the party\\nresisting discovery. Heller v. City of Dallas, 303 F.R.D. 466, 490 (N.D. Tex. 2014).\\n 12\\n\\f Case: 18-40043 Document: 00515089895 Page: 13 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-40043\\nexpense of reloading DTC’s document database or how such discovery is\\nburdensome to it. Even if it had, JPMC asserts, the cost to DTC “represents\\nbarely more than one-tenth of one percent of the $69 million (excluding\\ninterest) DTC owes JPMC” and represents even less of DTC’s total revenue.\\nJPMC argues this weighs heavily in its favor, although it does not offer to\\ndefray any of the cost of the discovery outside of reviewing the documents itself.\\nJPMC contends the likelihood of it gaining financial information showing “a\\npattern of siphoning money to insiders and payments of unlawful dividends for\\nwhich JPMC can recover from the transferees and DTC’s directors” shows the\\nlikely benefit of discovery to JPMC “far outweighs” the cost to DTC.\\n Weighing the costs of discovery to DTC with the benefit to JPMC is the\\ntype of judgment call generally best left to the discretion of the district court.\\nSeattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“The trial court is in\\nthe best position to weigh fairly the competing needs and interests of parties\\naffected by discovery.”). The district court’s reference to proportionality was in\\nthe context of considering the judgment as based solely on the 2012 breach;\\nconsidered in that light, pre-2011 discovery could reasonably be considered not\\nproportional to the needs of the case.\\n CONCLUSION\\n We conclude that the district court did not exceed its wide discretion. We\\ntherefore AFFIRM.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3694,"cells":{"id":{"kind":"number","value":4655665,"string":"4,655,665"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Alana Cain v. New Orleans City"},"decision_date":{"kind":"string","value":"2019-08-23"},"docket_number":{"kind":"string","value":"18-30955"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HAYNES, GRAVES, and HO, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JAMES E. GRAVES, JR., Circuit Judge\", \"type\": \"010combined\", \"text\": \"Case: 18-30955 Document: 00515090064 Page: 1 Date Filed: 08/23/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 23, 2019\\n No. 18-30955\\n Lyle W. Cayce\\n Clerk\\n\\n\\nALANA CAIN; ASHTON BROWN; REYNAUD VARISTE; REYNAJIA\\nVARISTE; THADDEUS LONG; VANESSA MAXWELL,\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nLAURIE A. WHITE, Judge Section A of the Orleans Parish Criminal District\\nCourt; TRACEY FLEMINGS-DAVILLIER, Judge Section B of the Orleans\\nParish Criminal District Court; BENEDICT WILLARD, Judge Section C of\\nthe Orleans Parish Criminal District Court; KEVA LANDRUM-JOHNSON,\\nJudge Section E of the Orleans Parish Criminal District Court; ROBIN\\nPITTMAN, Judge Section F of the Orleans Parish Criminal District Court;\\nBYRON C. WILLIAMS, Judge Section G of the Orleans Parish Criminal\\nDistrict Court; CAMILLE BURAS, Judge Section H of the Orleans Parish\\nCriminal District Court; KAREN K. HERMAN, Judge Section I of the\\nOrleans Parish Criminal District Court; DARRYL DERBIGNY, Judge\\nSection J of the Orleans Parish Criminal District Court; ARTHUR HUNTER,\\nJudge Section K of the Orleans Parish Criminal District Court; FRANZ\\nZIBILICH, Judge Section L of the Orleans Parish Criminal District Court;\\nHARRY E. CANTRELL, Magistrate Judge of the Orleans Parish Criminal\\nDistrict Court,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\f Case: 18-30955 Document: 00515090064 Page: 2 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\\nJAMES E. GRAVES, JR., Circuit Judge:\\n Plaintiff-Appellees are former criminal defendants in Orleans Parish,\\nLouisiana who sued Defendant-Appellants, Judges of the Orleans Parish\\nCriminal District Court (“OPCDC”), under 42 U.S.C. § 1983. Plaintiffs alleged\\nthe Judges’ practices in collecting criminal fines and fees violated the Due\\nProcess Clause of the Fourteenth Amendment. The district court granted\\nsummary judgment in Plaintiffs’ favor. We affirm, although we emphasize at\\nthe outset that the resolution of this case is dictated by the particular facts\\nbefore us.\\n I. BACKGROUND\\n A. The Parties\\n Plaintiff-Appellees are Alana Cain, Ashton Brown, Reynaud Variste,\\nReynajia Variste, Thaddeus Long, and Vanessa Maxwell, former criminal\\ndefendants in OPCDC who pleaded guilty to various criminal offenses between\\n2011 and 2014. All but Reynaud Variste qualified for and were appointed\\npublic defenders. At sentencing, Plaintiffs were assessed fines and fees ranging\\nfrom $148 to $901.50. All were arrested for failure to pay their assessed fines\\nand fees, given a $20,000 bond, and spent anywhere from six days to two weeks\\nin jail.\\n Defendant-Appellants are twelve OPCDC judges, Judges Laurie A.\\nWhite, Tracey Flemings-Davilier, Benedict Willard, Keva Landrum-Johnson,\\nRobin Pittman, Byron C. Williams, Camille Buras, Karen K. Herman, Darryl\\nDerbigny, Arthur Hunter, Franz Zibilich, and Magistrate Judge Harry\\nCantrell (the “Judges”). 1\\n\\n\\n 1 All claims against the OPCDC and the City of New Orleans were dismissed prior to\\nthe district court’s order granting summary judgment at issue here. Judicial Administrator\\nRobert Kazik and Orleans Parish Sheriff Marlin Gusman are not parties to this appeal.\\n 2\\n\\f Case: 18-30955 Document: 00515090064 Page: 3 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\n B. The Judicial Expense Fund (“JEF”)\\n The JEF is established pursuant to La. Rev. Stat. § 13:1381.4 and\\nconsists of OPCDC revenue that is not designated or restricted for a specific\\npurpose. Accordingly, it is also known as the General Fund. The JEF receives\\nfunding from a variety of sources, including the City of New Orleans and bail\\nbond fees, but approximately one quarter of the monies it receives comes from\\nthe court’s collection of fines and fees.\\n The Judges have exclusive control over how the JEF is spent, and\\ngenerally use it for the following:\\n salaries and related-employment benefits (excluding the judges),\\n CLE travel, legislative expenses, conferences and legal education,\\n ceremonies, office supplies, cleaning supplies, law books, bottled\\n water, jury expenses, telephone, postage, pest control, dues and\\n subscriptions, paper supplies, advertising, building maintenance\\n and repairs, cleaning services, capital outlay, equipment\\n maintenance and repairs, lease payments, equipment rentals,\\n professional and contractual expenses, the drug testing supplies,\\n coffee, transcripts, insurance, and miscellaneous.\\n\\nMoney from the fund may not be used to supplement the Judges’ own salaries,\\nalthough, as noted above, it can be used to pay the salaries of court personnel.\\nLa. Rev. Stat. § 13:1381.4(D). Each judge is allocated $250,000 per annum for\\npersonnel salaries and $1,000 for court costs from the JEF. The fund also\\ncovers the cost of professional liability insurance coverage as authorized by the\\nLouisiana Supreme Court. “For some time prior to 2011, some judges received\\nsupplemental benefits” from the JEF in the form of supplemental health\\ninsurance policies and reimbursement for out-of-pocket medical expenses;\\nhowever, this practice fully ended by 2012 following an investigation by the\\nLouisiana Legislative Auditor.\\n\\n\\n\\n\\n 3\\n\\f Case: 18-30955 Document: 00515090064 Page: 4 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\n When collection of the fines and fees is reduced, the OPCDC can have a\\ndifficult time meeting its operational needs, leading to cuts in services,\\nreduction of staff salaries, and leaving some positions unfilled. During these\\ntimes, the Judges have attempted to increase their collection efforts and have\\nalso requested assistance from other sources of funding, including the City of\\nNew Orleans.\\n C. The Fines and Fees\\n Several Louisiana statutes and codes permit the Judges to assess fines\\nand fees to criminal defendants at sentencing. Some fines and fees have specific\\npurposes and are collected to be distributed for specific statutory purposes, 2\\nwhile others are collected and then split between the court and other agencies. 3\\nHowever, some fines and fees go directly into the JEF. 4 The statutory\\nrequirements of yet other fines and fees is ambiguous. 5\\n\\n\\n\\n\\n 2 Restitution is collected to benefit the victims of crime, see La. Code Crim. Proc. Art.\\n883.2, and a $14 fee is collected to be deposited into the indigent transcript fund to\\ncompensate court reporters. La. Rev. Stat. § 13:1381.1. Additionally, Louisiana statute allows\\nthe assessment of the costs of drug treatment or drug testing if the defendant is found not to\\nbe indigent. § 13:5304(B)(3)(e), (C)(3)–(4). After 2012, it appears that these the indigent\\ntranscript fund fee and drug testing costs were deposited into the JEF.\\n 3 For example, fines pursuant to La. Rev. Stat. § 15:571.11 are split between the\\n\\nOPCDC and the District Attorney, and “court costs” assessed by the Judges can include fees\\nthat go to other agencies, including the Orleans Public Defender, the District Attorney, the\\nCriminal Sheriff, etc. The Sheriff also collects a 3% fee on bail bonds, two thirds of which goes\\nto an “administration of criminal justice fund” overseen by the chief judge of the OPCDC, the\\nOrleans Parish sheriff, the district attorney, and the director of the Orleans Parish indigent\\ndefender’s program, or their designees. § 22:822(A)(2), (B)(3); § 13.1381.5. The remaining\\nthird goes to the OPCDC. § 22.822(3).\\n 4 These include a mandatory $5 fee, La. Rev. Stat. § 13:1381.4, an “additional cost” of\\n\\nup to $500 for a defendant convicted of a misdemeanor and $2,000 for a defendant convicted\\nof a felony. § 13:1381.4(A)(2), (B).\\n 5 For instance, three Plaintiffs were charged a $100 or $200 fee to go into the indigent\\n\\ntranscript fund as a “condition of probation,” which went into the JEF. Louisiana Code of\\nCriminal Procedure Article 887(A) also allows for the collection of “all costs of the prosecution\\nor proceeding, . . . recoverable by the party or parties who incurred the expense.” The Judges\\nassessed these costs, but it is not clear where these costs went once collected.\\n 4\\n\\f Case: 18-30955 Document: 00515090064 Page: 5 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\n D. OPCDC’s Debt Collection Practices\\n Prior to this lawsuit, the Judges delegated collection authority to the\\nCollections Department, established by the OPCDC judges 6 in the late 1980s\\n“to (1) facilitate the collection of costs and fines [and] (2) to minimize the\\nadministrative and logistical burden on” the OPCDC’s dockets. The Collections\\nDepartment, supervised by both Mr. Kazik and the Judges, worked with\\ncriminal defendants in creating payment plans, accepting payments, and\\ngranting extensions. The Collections Department had “no standard list of\\nfactors or questions . . . to ask a criminal defendant except those at intake when\\ncollections obtained address, telephone and employment information and used\\nit for purposes of contacting the criminal defendant when they did not pay.”\\n Before issuing a warrant for a defendant’s arrest for failure to pay a court\\ndebt, the Collections Department would send two form letters to the defendant\\nwarning them of their overdue fines and fees and the possibility of arrest for\\nfailure to pay. If checking the court dockets or probation and jail records did\\nnot reveal a reason for nonpayment, the Collections Department issued an\\nalias capias warrant for contempt of court and generally set surety bail at\\n$20,000. A person imprisoned on one of these warrants would usually remain\\n“in jail until their family or friends could make a payment on their court debt,\\nor until a judge released them.”\\n After Plaintiffs filed the instant suit, the Judges withdrew the\\nCollections Department’s authority to issue warrants, recalled all active fines\\nand fees warrants issued prior to September 18, 2015 (except those where\\nrestitution remained unpaid or the individual had not appeared in court), and\\nwrote off approximately $1,000,000 in court debts. The Judges now handle\\n\\n\\n\\n 6 None of the Judges who are defendants in this lawsuit were on the bench or\\notherwise employed at the court when Collections was created.\\n 5\\n\\f Case: 18-30955 Document: 00515090064 Page: 6 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\ncollection issues on their own dockets, although they still issue alias capias\\nwarrants for failure to pay fines and fees. At the time of the district court’s\\nsummary judgment ruling, there was no evidence that the Judges had ever\\ninstituted a practice of considering a defendant’s ability to pay before jailing\\nthem for failure to pay their court debts.\\n E. Procedural Background\\n Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that the\\nJudges’ collection practices violated their Fourth and Fourteenth Amendment\\nrights, as well as Louisiana tort law. The only one of their seven claims at issue\\non appeal is Count Five, summarized by the district court as follows:\\n Defendants’ policy of jailing indigent debtors for nonpayment of\\n court debts without any inquiry into their ability to pay is\\n unconstitutional under the Due Process clause and the Equal\\n Protection Clause of the Fourteenth Amendment, and the Judge’s\\n authority over both fines and fees revenue and ability-to-pay\\n determinations violates the Due Process Clause.\\n\\nCain v. City of New Orleans, 281 F. Supp. 3d. 624, 633 (E.D. La. 2017)\\n(emphasis added). The district court ordered the parties to submit cross-\\nmotions for summary judgment on Count Five (and several other counts) and\\ngranted summary judgment to Plaintiffs on both portions of Count Five. The\\ndistrict court then certified a class and issued a declaratory judgment.\\n The Judges only challenge the portion of the district court’s declaratory\\njudgment which declared that “with respect to all persons who owe or will incur\\ncourt debts arising from cases adjudicated in OPCDC, and whose debts are at\\nleast partly owed to the OPCDC Judicial Expense Fund, the Judges’ failure to\\nprovide a neutral forum for determination of such persons’ ability to pay is\\nunconstitutional.” They do not challenge the district court’s judgment stating\\nthat “the Judges’ policy or practice of not inquiring into the ability to pay of\\n\\n\\n\\n 6\\n\\f Case: 18-30955 Document: 00515090064 Page: 7 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\nsuch persons before they are imprisoned for nonpayment of court debts is\\nunconstitutional.”\\n II. STANDARD OF REVIEW\\n “This court reviews a district court’s grant of summary judgment de\\nnovo, applying the same legal standards as the district court.” Tradewinds\\nEnvtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir.\\n2009) (quoting Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir.\\n2005)). “Summary judgment is appropriate when ‘the movant shows that there\\nis no genuine dispute as to any material fact and the movant is entitled to\\njudgment as a matter of law.’” United States v. Nature’s Way Marine, L.L.C.,\\n904 F.3d 416, 419 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).\\n III. DISCUSSION\\n “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement\\nof due process.’” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009)\\n(quoting In re Murchison, 349 U.S. 133, 136 (1955)). “That officers acting in a\\njudicial or quasi judicial capacity are disqualified by their interest in the\\ncontroversy to be decided is of course the general rule.” Tumey v. State of Ohio,\\n273 U.S. 510, 522 (1927). However, “[a]ll questions of judicial qualification may\\nnot involve constitutional validity.” Id. at 523. The issue here is whether the\\nJudges’ administrative supervision over the JEF, while simultaneously\\noverseeing the collection of fines and fees making up a substantial portion of\\nthe JEF, crosses the constitutional line.\\n A. “Average Man as Judge” versus “Average . . . Judge”\\n The Judges primary argument is that the district court improperly\\napplied the “average man as judge” standard rather than the “average judge”\\nstandard when determining whether the Judges’ interest in the JEF violated\\ndue process. According to the Judges, the “average man as judge” standard is\\napplied in situations where “the impartiality of non-judges acting as judges” is\\n 7\\n\\f Case: 18-30955 Document: 00515090064 Page: 8 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\ncalled into question, not cases where the “average judge’s” impartiality is under\\ndebate. Essentially, the Judges argue that an average man might be swayed\\nby the institutional interest at play here, but not an average judge. The caselaw\\nsimply does not support such a distinction.\\n 1. Legal Background\\n In Tumey, the mayor of an Ohio village presided over a “liquor court,”\\nwhich allowed him to try and convict individuals alleged to unlawfully possess\\nintoxicating liquor within the county. Tumey, 273 U.S. at 515. The Ohio\\nstatutes which established the liquor courts allowed the mayor to impose a fine\\non those convicted and to order the person sentenced to remain in prison until\\nthe fine was paid. Id. at 516. As remuneration for his troubles, the mayor could\\nretain the amount of his costs in each case from the convicted defendant over\\nand above his regular salary. Id. at 519–20. In addition, the village over which\\nthe mayor presided received half the funds from the imposed fines (the other\\nhalf went to the state). Id. at 534–35.\\n Eventually, a defendant challenged the mayor’s qualifications to hear his\\ncase and the Court found the defendant “was entitled to halt the trial because\\nof the disqualification of the judge, which existed both because of his direct\\npecuniary interest in the outcome, and because of his official motive to convict\\nand to graduate the fine to help the financial needs of the village.” Id. at 535.\\nThe Court observed,\\n Every procedure which would offer a possible temptation to the\\n average man as a judge to forget the burden of proof required to\\n convict the defendant, or which might lead him not to hold the\\n balance nice, clear, and true between the state and the accused\\n denies the latter due process of law.\\n\\nId. at 532.\\n While Tumey was generally thought to focus on a judge’s financial\\ninterest, both personal and institutional, In re Murchison, 349 U.S. 133 (1955)\\n 8\\n\\f Case: 18-30955 Document: 00515090064 Page: 9 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\nestablished a separate line of Supreme Court cases focusing on a judge’s\\npossible “conflict arising from his participation in an earlier proceeding.”\\nCaperton, 556 U.S. at 880. In Murchison, the unconstitutional conflict came\\nfrom a judge who, as allowed by statute, had been examining witnesses as a\\n“one-man judge-grand jury” in deciding whether criminal charges should be\\nbrought. Murchison, 349 U.S. at 133–34. The judge, unhappy with the\\nresponses of two witnesses, subsequently charged, tried, and convicted each\\none of contempt based on his belief that one witness lied and the other refused\\nto answer questions before him as “judge-grand-jury.” Id. at 134–35. The Court\\nconcluded this dual-role violated due process, and quoted Tumey in saying that\\n“[e]very procedure which would offer a possible temptation to the average man\\nas a judge * * * not to hold the balance nice, clear, and true between the State\\nand the accused denies the latter due process of law.” Murchison, 349 U.S. at\\n136 (quoting Tumey, 273 U.S. at 532).\\n In a case fairly similar to Tumey, the Supreme Court again addressed\\nthe possible institutional biases inherent in another mayor’s court. Ward v.\\nVill. of Monroeville, Ohio, 409 U.S. 57 (1972). In Ward, an Ohio statute allowed\\n“mayors to sit as judges in cases of ordinance violations and certain traffic\\noffenses” and the “fines, forfeitures, costs, and fees imposed by” the mayor in\\nthese courts formed a major part of the village’s funding. Ward, 409 U.S. at\\n57–58. In addition, the mayor was the “president of the village council,\\npreside[d] at all meetings, vote[d] in case of a tie, account[ed] annually to the\\ncouncil respecting village finances, fill[ed] vacancies in village offices and ha[d]\\ngeneral overall supervision of village affairs.” Id. at 58.\\n The Court applied the same test espoused in Tumey:\\n Although ‘the mere union of the executive power and the judicial\\n power in him cannot be said to violate due process of law,’ the test\\n is whether the mayor’s situation is one ‘which would offer a\\n possible temptation to the average man as a judge to forget the\\n 9\\n\\f Case: 18-30955 Document: 00515090064 Page: 10 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\n burden of proof required to convict the defendant, or which might\\n lead him not to hold the balance nice, clear, and true between the\\n state and the accused . . . .’\\n\\nWard, 409 U.S. at 60 (quoting Tumey, at 532, 534) (internal citations\\nremoved)). Because “that ‘possible temptation’ may also exist when the mayor’s\\nexecutive responsibilities for village finances may make him partisan to\\nmaintain the high level of contribution from the mayor’s court,” the Court\\nfound the mayor’s court in Ward presented “a ‘situation in which an official\\nperforce occupies two practically and seriously inconsistent positions, one\\npartisan and the other judicial, (and) necessarily involves a lack of due process\\nof law in the trial of defendants charged with crimes before him.’” Id. at 60.\\n Over a decade later, the Supreme Court again had occasion to discuss\\nwhat level of financial interest might render “the average . . . judge” unable “to\\nhold the balance nice, clear and true.” Aetna Life Ins. Co. v. Lavoie, 475 U.S.\\n813, 821 (1986). In Aetna, a justice on the Alabama Supreme Court\\nparticipated in a decision regarding punitive damages in bad faith insurance\\nclaims while he was simultaneously a lead plaintiff in a class action suit\\nseeking punitive damages on a bad faith claim. Id. at 817. While the Court\\ndiscussed many factors that might bear on the necessity for recusal, the Court\\nheld “simply that when Justice Embry made that judgment, he acted as ‘a\\njudge in his own case.’” Id. at 824 (quoting Murchison, 349 U.S. at 136).\\n While it was possible that the justice was not influenced by his\\nparticipation in the state court case, under the principles laid out in Tumey,\\nMurchison, and Ward, actual influence was not necessary—it only mattered\\nwhether the situation “would offer a possible temptation to the average . . .\\njudge to . . . lead him to not to hold the balance nice, clear and true.” Aetna,\\n475 U.S. at 825 (quoting Ward, 409 U.S. at 60). Because of Justice Embry’s\\nparticipation in the case, the Court found the “appearance of justice” best\\n\\n 10\\n\\f Case: 18-30955 Document: 00515090064 Page: 11 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\n“served by vacating the decision and remanding for further proceedings.” Id.\\nat 828.\\n 2. Judges’ Argument\\n Disregarding the principles undergirding Aetna, the Judges argue that\\nAetna essentially came along and established a new standard by shortening\\nTumey and Ward’s “average man as judge” to “average . . . judge.” Aetna, 475\\nU.S. at 822, 825. While the Court did alter “average man as judge,” the Court\\napplied the exact same principles discussed in Ward, Murchison, and Tumey\\nto the Alabama Supreme Court justice. There was no articulation of a higher\\nstandard for judges, much less an explanation as to how such a standard might\\ndiffer from that applied to mayors acting as judges. Aetna, 475 U.S. at 825.\\nFurthermore, reading Aetna as the Judges suggest would mean reading Aetna\\nto overrule Murchison, which applied the “average man as judge” standard to\\na sitting judge. Murchison, 349 U.S. at 136. We find it hard to believe that the\\nCourt overruled one of its cases with an ellipsis. Finally, the recent Supreme\\nCourt case of Caperton reinforces the idea that the standards announced, and\\nthe situations presented, in Tumey and Ward apply equally to judges and non-\\njudges acting as judges. Caperton, 556 U.S. at 877–82 (discussing the various\\nprinciples from Tumey, Ward, Murchison and Aetna as applying to “judges”).\\n The district court did not err in applying the principles from Tumey and\\nWard to the facts of this case.\\n B. The Judges’ Institutional Interest in the JEF\\n 1. The District Court’s Reliance on Ward\\n The Judges next contest the district court’s reliance on Ward to find that\\nthe Judges’ pecuniary interest in the JEF “crosses the constitutional line.”\\nThey allege “[t]he district court erred in its blanket comparison of the Judges’\\ninstitutional interest here to the mayor’s institutional interest in Ward.” The\\nJudges distinguish Ward by noting the mayor there had broad executive power\\n 11\\n\\f Case: 18-30955 Document: 00515090064 Page: 12 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\nover all the village finances and he was politically responsible for the town’s\\nfunds, whereas here the Judges only directly manage a portion of the revenue\\nfrom the fines and fees. Plaintiffs argue that the Judges’ interest here is almost\\nexactly like that in Ward because the Judges impose the fines and fees and\\nexercise complete control over how the revenue generated from the fines and\\nfees is spent.\\n The district court very thoroughly examined the ways in which the\\nJudges have an institutional interest in the JEF. It observed that the “[f]ines\\nand fees revenue goes into the Judicial Expense Fund,” over which “the Judges\\nexercise total control.” Cain, 281 F. Supp. 3d at 654. It noted that while the\\nmoney does not support the Judges’ personal salaries, it largely goes to support\\nthe salaries of each Judges’ staff. In addition, the district court noted that while\\nsome of the money collected from fees is earmarked for specific purposes, the\\nrevenue all goes to the JEF and makes up approximately one-fourth of the\\nOPCDC’s budget.\\n In Ward, “[a] major part of village income [was] derived from the fines,\\nforfeitures, costs, and fees imposed” by the mayor in his court, and the mayor\\nhad “wide executive powers” that included accounting to the village council\\nregarding village finances, filling vacancies in village offices, and “general\\noverall supervision of village affairs.” Ward, 409 U.S. at 58. Here, the Judges\\nhave exclusive authority over how the JEF is spent, they must account for the\\nOPCDC budget to the New Orleans City Council and New Orleans Mayor, and\\nthe fines and fees make up a significant portion of their annual budget. We\\nagree with the district court that the situation here falls within the ambit of\\nWard. In doing so, we emphasize it is the totality of this situation, not any\\n\\n\\n\\n\\n 12\\n\\f Case: 18-30955 Document: 00515090064 Page: 13 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\nindividual piece, that leads us to this conclusion. In sum, when everything\\ninvolved in this case is put together, the “temptation” 7 is too great.\\n Given this constitutional infirmity, we find the Judges’ remaining\\narguments unavailing.\\n\\n\\n IV. CONCLUSION\\n For the foregoing reasons, we AFFIRM the judgment of the district court.\\nThe Judges’ motion to supplement the record is DENIED.\\n\\n\\n\\n\\n 7 In so concluding, we do not in any way suggest that the Judges actually succumbed\\nto that “temptation.”\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4432918/\", \"author_raw\": \"JAMES E. GRAVES, JR., Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HAYNES"},"judge2":{"kind":"string","value":"GRAVES"},"judge3":{"kind":"string","value":"HO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HAYNES\": \", Circuit\", \"GRAVES\": \", Circuit\", \"HO\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4655665/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Alana Cain v. New Orleans City\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-30955 Document: 00515090064 Page: 1 Date Filed: 08/23/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n August 23, 2019\n No. 18-30955\n Lyle W. Cayce\n Clerk\n\n\nALANA CAIN; ASHTON BROWN; REYNAUD VARISTE; REYNAJIA\nVARISTE; THADDEUS LONG; VANESSA MAXWELL,\n\n Plaintiffs - Appellees\n\nv.\n\nLAURIE A. WHITE, Judge Section A of the Orleans Parish Criminal District\nCourt; TRACEY FLEMINGS-DAVILLIER, Judge Section B of the Orleans\nParish Criminal District Court; BENEDICT WILLARD, Judge Section C of\nthe Orleans Parish Criminal District Court; KEVA LANDRUM-JOHNSON,\nJudge Section E of the Orleans Parish Criminal District Court; ROBIN\nPITTMAN, Judge Section F of the Orleans Parish Criminal District Court;\nBYRON C. WILLIAMS, Judge Section G of the Orleans Parish Criminal\nDistrict Court; CAMILLE BURAS, Judge Section H of the Orleans Parish\nCriminal District Court; KAREN K. HERMAN, Judge Section I of the\nOrleans Parish Criminal District Court; DARRYL DERBIGNY, Judge\nSection J of the Orleans Parish Criminal District Court; ARTHUR HUNTER,\nJudge Section K of the Orleans Parish Criminal District Court; FRANZ\nZIBILICH, Judge Section L of the Orleans Parish Criminal District Court;\nHARRY E. CANTRELL, Magistrate Judge of the Orleans Parish Criminal\nDistrict Court,\n\n Defendants - Appellants\n\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n\f Case: 18-30955 Document: 00515090064 Page: 2 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\nJAMES E. GRAVES, JR., Circuit Judge:\n Plaintiff-Appellees are former criminal defendants in Orleans Parish,\nLouisiana who sued Defendant-Appellants, Judges of the Orleans Parish\nCriminal District Court (“OPCDC”), under 42 U.S.C. § 1983. Plaintiffs alleged\nthe Judges’ practices in collecting criminal fines and fees violated the Due\nProcess Clause of the Fourteenth Amendment. The district court granted\nsummary judgment in Plaintiffs’ favor. We affirm, although we emphasize at\nthe outset that the resolution of this case is dictated by the particular facts\nbefore us.\n I. BACKGROUND\n A. The Parties\n Plaintiff-Appellees are Alana Cain, Ashton Brown, Reynaud Variste,\nReynajia Variste, Thaddeus Long, and Vanessa Maxwell, former criminal\ndefendants in OPCDC who pleaded guilty to various criminal offenses between\n2011 and 2014. All but Reynaud Variste qualified for and were appointed\npublic defenders. At sentencing, Plaintiffs were assessed fines and fees ranging\nfrom $148 to $901.50. All were arrested for failure to pay their assessed fines\nand fees, given a $20,000 bond, and spent anywhere from six days to two weeks\nin jail.\n Defendant-Appellants are twelve OPCDC judges, Judges Laurie A.\nWhite, Tracey Flemings-Davilier, Benedict Willard, Keva Landrum-Johnson,\nRobin Pittman, Byron C. Williams, Camille Buras, Karen K. Herman, Darryl\nDerbigny, Arthur Hunter, Franz Zibilich, and Magistrate Judge Harry\nCantrell (the “Judges”). 1\n\n\n 1 All claims against the OPCDC and the City of New Orleans were dismissed prior to\nthe district court’s order granting summary judgment at issue here. Judicial Administrator\nRobert Kazik and Orleans Parish Sheriff Marlin Gusman are not parties to this appeal.\n 2\n\f Case: 18-30955 Document: 00515090064 Page: 3 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\n B. The Judicial Expense Fund (“JEF”)\n The JEF is established pursuant to La. Rev. Stat. § 13:1381.4 and\nconsists of OPCDC revenue that is not designated or restricted for a specific\npurpose. Accordingly, it is also known as the General Fund. The JEF receives\nfunding from a variety of sources, including the City of New Orleans and bail\nbond fees, but approximately one quarter of the monies it receives comes from\nthe court’s collection of fines and fees.\n The Judges have exclusive control over how the JEF is spent, and\ngenerally use it for the following:\n salaries and related-employment benefits (excluding the judges),\n CLE travel, legislative expenses, conferences and legal education,\n ceremonies, office supplies, cleaning supplies, law books, bottled\n water, jury expenses, telephone, postage, pest control, dues and\n subscriptions, paper supplies, advertising, building maintenance\n and repairs, cleaning services, capital outlay, equipment\n maintenance and repairs, lease payments, equipment rentals,\n professional and contractual expenses, the drug testing supplies,\n coffee, transcripts, insurance, and miscellaneous.\n\nMoney from the fund may not be used to supplement the Judges’ own salaries,\nalthough, as noted above, it can be used to pay the salaries of court personnel.\nLa. Rev. Stat. § 13:1381.4(D). Each judge is allocated $250,000 per annum for\npersonnel salaries and $1,000 for court costs from the JEF. The fund also\ncovers the cost of professional liability insurance coverage as authorized by the\nLouisiana Supreme Court. “For some time prior to 2011, some judges received\nsupplemental benefits” from the JEF in the form of supplemental health\ninsurance policies and reimbursement for out-of-pocket medical expenses;\nhowever, this practice fully ended by 2012 following an investigation by the\nLouisiana Legislative Auditor.\n\n\n\n\n 3\n\f Case: 18-30955 Document: 00515090064 Page: 4 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\n When collection of the fines and fees is reduced, the OPCDC can have a\ndifficult time meeting its operational needs, leading to cuts in services,\nreduction of staff salaries, and leaving some positions unfilled. During these\ntimes, the Judges have attempted to increase their collection efforts and have\nalso requested assistance from other sources of funding, including the City of\nNew Orleans.\n C. The Fines and Fees\n Several Louisiana statutes and codes permit the Judges to assess fines\nand fees to criminal defendants at sentencing. Some fines and fees have specific\npurposes and are collected to be distributed for specific statutory purposes, 2\nwhile others are collected and then split between the court and other agencies. 3\nHowever, some fines and fees go directly into the JEF. 4 The statutory\nrequirements of yet other fines and fees is ambiguous. 5\n\n\n\n\n 2 Restitution is collected to benefit the victims of crime, see La. Code Crim. Proc. Art.\n883.2, and a $14 fee is collected to be deposited into the indigent transcript fund to\ncompensate court reporters. La. Rev. Stat. § 13:1381.1. Additionally, Louisiana statute allows\nthe assessment of the costs of drug treatment or drug testing if the defendant is found not to\nbe indigent. § 13:5304(B)(3)(e), (C)(3)–(4). After 2012, it appears that these the indigent\ntranscript fund fee and drug testing costs were deposited into the JEF.\n 3 For example, fines pursuant to La. Rev. Stat. § 15:571.11 are split between the\n\nOPCDC and the District Attorney, and “court costs” assessed by the Judges can include fees\nthat go to other agencies, including the Orleans Public Defender, the District Attorney, the\nCriminal Sheriff, etc. The Sheriff also collects a 3% fee on bail bonds, two thirds of which goes\nto an “administration of criminal justice fund” overseen by the chief judge of the OPCDC, the\nOrleans Parish sheriff, the district attorney, and the director of the Orleans Parish indigent\ndefender’s program, or their designees. § 22:822(A)(2), (B)(3); § 13.1381.5. The remaining\nthird goes to the OPCDC. § 22.822(3).\n 4 These include a mandatory $5 fee, La. Rev. Stat. § 13:1381.4, an “additional cost” of\n\nup to $500 for a defendant convicted of a misdemeanor and $2,000 for a defendant convicted\nof a felony. § 13:1381.4(A)(2), (B).\n 5 For instance, three Plaintiffs were charged a $100 or $200 fee to go into the indigent\n\ntranscript fund as a “condition of probation,” which went into the JEF. Louisiana Code of\nCriminal Procedure Article 887(A) also allows for the collection of “all costs of the prosecution\nor proceeding, . . . recoverable by the party or parties who incurred the expense.” The Judges\nassessed these costs, but it is not clear where these costs went once collected.\n 4\n\f Case: 18-30955 Document: 00515090064 Page: 5 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\n D. OPCDC’s Debt Collection Practices\n Prior to this lawsuit, the Judges delegated collection authority to the\nCollections Department, established by the OPCDC judges 6 in the late 1980s\n“to (1) facilitate the collection of costs and fines [and] (2) to minimize the\nadministrative and logistical burden on” the OPCDC’s dockets. The Collections\nDepartment, supervised by both Mr. Kazik and the Judges, worked with\ncriminal defendants in creating payment plans, accepting payments, and\ngranting extensions. The Collections Department had “no standard list of\nfactors or questions . . . to ask a criminal defendant except those at intake when\ncollections obtained address, telephone and employment information and used\nit for purposes of contacting the criminal defendant when they did not pay.”\n Before issuing a warrant for a defendant’s arrest for failure to pay a court\ndebt, the Collections Department would send two form letters to the defendant\nwarning them of their overdue fines and fees and the possibility of arrest for\nfailure to pay. If checking the court dockets or probation and jail records did\nnot reveal a reason for nonpayment, the Collections Department issued an\nalias capias warrant for contempt of court and generally set surety bail at\n$20,000. A person imprisoned on one of these warrants would usually remain\n“in jail until their family or friends could make a payment on their court debt,\nor until a judge released them.”\n After Plaintiffs filed the instant suit, the Judges withdrew the\nCollections Department’s authority to issue warrants, recalled all active fines\nand fees warrants issued prior to September 18, 2015 (except those where\nrestitution remained unpaid or the individual had not appeared in court), and\nwrote off approximately $1,000,000 in court debts. The Judges now handle\n\n\n\n 6 None of the Judges who are defendants in this lawsuit were on the bench or\notherwise employed at the court when Collections was created.\n 5\n\f Case: 18-30955 Document: 00515090064 Page: 6 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\ncollection issues on their own dockets, although they still issue alias capias\nwarrants for failure to pay fines and fees. At the time of the district court’s\nsummary judgment ruling, there was no evidence that the Judges had ever\ninstituted a practice of considering a defendant’s ability to pay before jailing\nthem for failure to pay their court debts.\n E. Procedural Background\n Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that the\nJudges’ collection practices violated their Fourth and Fourteenth Amendment\nrights, as well as Louisiana tort law. The only one of their seven claims at issue\non appeal is Count Five, summarized by the district court as follows:\n Defendants’ policy of jailing indigent debtors for nonpayment of\n court debts without any inquiry into their ability to pay is\n unconstitutional under the Due Process clause and the Equal\n Protection Clause of the Fourteenth Amendment, and the Judge’s\n authority over both fines and fees revenue and ability-to-pay\n determinations violates the Due Process Clause.\n\nCain v. City of New Orleans, 281 F. Supp. 3d. 624, 633 (E.D. La. 2017)\n(emphasis added). The district court ordered the parties to submit cross-\nmotions for summary judgment on Count Five (and several other counts) and\ngranted summary judgment to Plaintiffs on both portions of Count Five. The\ndistrict court then certified a class and issued a declaratory judgment.\n The Judges only challenge the portion of the district court’s declaratory\njudgment which declared that “with respect to all persons who owe or will incur\ncourt debts arising from cases adjudicated in OPCDC, and whose debts are at\nleast partly owed to the OPCDC Judicial Expense Fund, the Judges’ failure to\nprovide a neutral forum for determination of such persons’ ability to pay is\nunconstitutional.” They do not challenge the district court’s judgment stating\nthat “the Judges’ policy or practice of not inquiring into the ability to pay of\n\n\n\n 6\n\f Case: 18-30955 Document: 00515090064 Page: 7 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\nsuch persons before they are imprisoned for nonpayment of court debts is\nunconstitutional.”\n II. STANDARD OF REVIEW\n “This court reviews a district court’s grant of summary judgment de\nnovo, applying the same legal standards as the district court.” Tradewinds\nEnvtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir.\n2009) (quoting Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir.\n2005)). “Summary judgment is appropriate when ‘the movant shows that there\nis no genuine dispute as to any material fact and the movant is entitled to\njudgment as a matter of law.’” United States v. Nature’s Way Marine, L.L.C.,\n904 F.3d 416, 419 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).\n III. DISCUSSION\n “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement\nof due process.’” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009)\n(quoting In re Murchison, 349 U.S. 133, 136 (1955)). “That officers acting in a\njudicial or quasi judicial capacity are disqualified by their interest in the\ncontroversy to be decided is of course the general rule.” Tumey v. State of Ohio,\n273 U.S. 510, 522 (1927). However, “[a]ll questions of judicial qualification may\nnot involve constitutional validity.” Id. at 523. The issue here is whether the\nJudges’ administrative supervision over the JEF, while simultaneously\noverseeing the collection of fines and fees making up a substantial portion of\nthe JEF, crosses the constitutional line.\n A. “Average Man as Judge” versus “Average . . . Judge”\n The Judges primary argument is that the district court improperly\napplied the “average man as judge” standard rather than the “average judge”\nstandard when determining whether the Judges’ interest in the JEF violated\ndue process. According to the Judges, the “average man as judge” standard is\napplied in situations where “the impartiality of non-judges acting as judges” is\n 7\n\f Case: 18-30955 Document: 00515090064 Page: 8 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\ncalled into question, not cases where the “average judge’s” impartiality is under\ndebate. Essentially, the Judges argue that an average man might be swayed\nby the institutional interest at play here, but not an average judge. The caselaw\nsimply does not support such a distinction.\n 1. Legal Background\n In Tumey, the mayor of an Ohio village presided over a “liquor court,”\nwhich allowed him to try and convict individuals alleged to unlawfully possess\nintoxicating liquor within the county. Tumey, 273 U.S. at 515. The Ohio\nstatutes which established the liquor courts allowed the mayor to impose a fine\non those convicted and to order the person sentenced to remain in prison until\nthe fine was paid. Id. at 516. As remuneration for his troubles, the mayor could\nretain the amount of his costs in each case from the convicted defendant over\nand above his regular salary. Id. at 519–20. In addition, the village over which\nthe mayor presided received half the funds from the imposed fines (the other\nhalf went to the state). Id. at 534–35.\n Eventually, a defendant challenged the mayor’s qualifications to hear his\ncase and the Court found the defendant “was entitled to halt the trial because\nof the disqualification of the judge, which existed both because of his direct\npecuniary interest in the outcome, and because of his official motive to convict\nand to graduate the fine to help the financial needs of the village.” Id. at 535.\nThe Court observed,\n Every procedure which would offer a possible temptation to the\n average man as a judge to forget the burden of proof required to\n convict the defendant, or which might lead him not to hold the\n balance nice, clear, and true between the state and the accused\n denies the latter due process of law.\n\nId. at 532.\n While Tumey was generally thought to focus on a judge’s financial\ninterest, both personal and institutional, In re Murchison, 349 U.S. 133 (1955)\n 8\n\f Case: 18-30955 Document: 00515090064 Page: 9 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\nestablished a separate line of Supreme Court cases focusing on a judge’s\npossible “conflict arising from his participation in an earlier proceeding.”\nCaperton, 556 U.S. at 880. In Murchison, the unconstitutional conflict came\nfrom a judge who, as allowed by statute, had been examining witnesses as a\n“one-man judge-grand jury” in deciding whether criminal charges should be\nbrought. Murchison, 349 U.S. at 133–34. The judge, unhappy with the\nresponses of two witnesses, subsequently charged, tried, and convicted each\none of contempt based on his belief that one witness lied and the other refused\nto answer questions before him as “judge-grand-jury.” Id. at 134–35. The Court\nconcluded this dual-role violated due process, and quoted Tumey in saying that\n“[e]very procedure which would offer a possible temptation to the average man\nas a judge * * * not to hold the balance nice, clear, and true between the State\nand the accused denies the latter due process of law.” Murchison, 349 U.S. at\n136 (quoting Tumey, 273 U.S. at 532).\n In a case fairly similar to Tumey, the Supreme Court again addressed\nthe possible institutional biases inherent in another mayor’s court. Ward v.\nVill. of Monroeville, Ohio, 409 U.S. 57 (1972). In Ward, an Ohio statute allowed\n“mayors to sit as judges in cases of ordinance violations and certain traffic\noffenses” and the “fines, forfeitures, costs, and fees imposed by” the mayor in\nthese courts formed a major part of the village’s funding. Ward, 409 U.S. at\n57–58. In addition, the mayor was the “president of the village council,\npreside[d] at all meetings, vote[d] in case of a tie, account[ed] annually to the\ncouncil respecting village finances, fill[ed] vacancies in village offices and ha[d]\ngeneral overall supervision of village affairs.” Id. at 58.\n The Court applied the same test espoused in Tumey:\n Although ‘the mere union of the executive power and the judicial\n power in him cannot be said to violate due process of law,’ the test\n is whether the mayor’s situation is one ‘which would offer a\n possible temptation to the average man as a judge to forget the\n 9\n\f Case: 18-30955 Document: 00515090064 Page: 10 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\n burden of proof required to convict the defendant, or which might\n lead him not to hold the balance nice, clear, and true between the\n state and the accused . . . .’\n\nWard, 409 U.S. at 60 (quoting Tumey, at 532, 534) (internal citations\nremoved)). Because “that ‘possible temptation’ may also exist when the mayor’s\nexecutive responsibilities for village finances may make him partisan to\nmaintain the high level of contribution from the mayor’s court,” the Court\nfound the mayor’s court in Ward presented “a ‘situation in which an official\nperforce occupies two practically and seriously inconsistent positions, one\npartisan and the other judicial, (and) necessarily involves a lack of due process\nof law in the trial of defendants charged with crimes before him.’” Id. at 60.\n Over a decade later, the Supreme Court again had occasion to discuss\nwhat level of financial interest might render “the average . . . judge” unable “to\nhold the balance nice, clear and true.” Aetna Life Ins. Co. v. Lavoie, 475 U.S.\n813, 821 (1986). In Aetna, a justice on the Alabama Supreme Court\nparticipated in a decision regarding punitive damages in bad faith insurance\nclaims while he was simultaneously a lead plaintiff in a class action suit\nseeking punitive damages on a bad faith claim. Id. at 817. While the Court\ndiscussed many factors that might bear on the necessity for recusal, the Court\nheld “simply that when Justice Embry made that judgment, he acted as ‘a\njudge in his own case.’” Id. at 824 (quoting Murchison, 349 U.S. at 136).\n While it was possible that the justice was not influenced by his\nparticipation in the state court case, under the principles laid out in Tumey,\nMurchison, and Ward, actual influence was not necessary—it only mattered\nwhether the situation “would offer a possible temptation to the average . . .\njudge to . . . lead him to not to hold the balance nice, clear and true.” Aetna,\n475 U.S. at 825 (quoting Ward, 409 U.S. at 60). Because of Justice Embry’s\nparticipation in the case, the Court found the “appearance of justice” best\n\n 10\n\f Case: 18-30955 Document: 00515090064 Page: 11 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\n“served by vacating the decision and remanding for further proceedings.” Id.\nat 828.\n 2. Judges’ Argument\n Disregarding the principles undergirding Aetna, the Judges argue that\nAetna essentially came along and established a new standard by shortening\nTumey and Ward’s “average man as judge” to “average . . . judge.” Aetna, 475\nU.S. at 822, 825. While the Court did alter “average man as judge,” the Court\napplied the exact same principles discussed in Ward, Murchison, and Tumey\nto the Alabama Supreme Court justice. There was no articulation of a higher\nstandard for judges, much less an explanation as to how such a standard might\ndiffer from that applied to mayors acting as judges. Aetna, 475 U.S. at 825.\nFurthermore, reading Aetna as the Judges suggest would mean reading Aetna\nto overrule Murchison, which applied the “average man as judge” standard to\na sitting judge. Murchison, 349 U.S. at 136. We find it hard to believe that the\nCourt overruled one of its cases with an ellipsis. Finally, the recent Supreme\nCourt case of Caperton reinforces the idea that the standards announced, and\nthe situations presented, in Tumey and Ward apply equally to judges and non-\njudges acting as judges. Caperton, 556 U.S. at 877–82 (discussing the various\nprinciples from Tumey, Ward, Murchison and Aetna as applying to “judges”).\n The district court did not err in applying the principles from Tumey and\nWard to the facts of this case.\n B. The Judges’ Institutional Interest in the JEF\n 1. The District Court’s Reliance on Ward\n The Judges next contest the district court’s reliance on Ward to find that\nthe Judges’ pecuniary interest in the JEF “crosses the constitutional line.”\nThey allege “[t]he district court erred in its blanket comparison of the Judges’\ninstitutional interest here to the mayor’s institutional interest in Ward.” The\nJudges distinguish Ward by noting the mayor there had broad executive power\n 11\n\f Case: 18-30955 Document: 00515090064 Page: 12 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\nover all the village finances and he was politically responsible for the town’s\nfunds, whereas here the Judges only directly manage a portion of the revenue\nfrom the fines and fees. Plaintiffs argue that the Judges’ interest here is almost\nexactly like that in Ward because the Judges impose the fines and fees and\nexercise complete control over how the revenue generated from the fines and\nfees is spent.\n The district court very thoroughly examined the ways in which the\nJudges have an institutional interest in the JEF. It observed that the “[f]ines\nand fees revenue goes into the Judicial Expense Fund,” over which “the Judges\nexercise total control.” Cain, 281 F. Supp. 3d at 654. It noted that while the\nmoney does not support the Judges’ personal salaries, it largely goes to support\nthe salaries of each Judges’ staff. In addition, the district court noted that while\nsome of the money collected from fees is earmarked for specific purposes, the\nrevenue all goes to the JEF and makes up approximately one-fourth of the\nOPCDC’s budget.\n In Ward, “[a] major part of village income [was] derived from the fines,\nforfeitures, costs, and fees imposed” by the mayor in his court, and the mayor\nhad “wide executive powers” that included accounting to the village council\nregarding village finances, filling vacancies in village offices, and “general\noverall supervision of village affairs.” Ward, 409 U.S. at 58. Here, the Judges\nhave exclusive authority over how the JEF is spent, they must account for the\nOPCDC budget to the New Orleans City Council and New Orleans Mayor, and\nthe fines and fees make up a significant portion of their annual budget. We\nagree with the district court that the situation here falls within the ambit of\nWard. In doing so, we emphasize it is the totality of this situation, not any\n\n\n\n\n 12\n\f Case: 18-30955 Document: 00515090064 Page: 13 Date Filed: 08/23/2019\n\n\n\n No. 18-30955\nindividual piece, that leads us to this conclusion. In sum, when everything\ninvolved in this case is put together, the “temptation” 7 is too great.\n Given this constitutional infirmity, we find the Judges’ remaining\narguments unavailing.\n\n\n IV. CONCLUSION\n For the foregoing reasons, we AFFIRM the judgment of the district court.\nThe Judges’ motion to supplement the record is DENIED.\n\n\n\n\n 7 In so concluding, we do not in any way suggest that the Judges actually succumbed\nto that “temptation.”\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Alana Cain v. New Orleans City\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-30955 Document: 00515090064 Page: 1 Date Filed: 08/23/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n August 23, 2019\\n No. 18-30955\\n Lyle W. Cayce\\n Clerk\\n\\n\\nALANA CAIN; ASHTON BROWN; REYNAUD VARISTE; REYNAJIA\\nVARISTE; THADDEUS LONG; VANESSA MAXWELL,\\n\\n Plaintiffs - Appellees\\n\\nv.\\n\\nLAURIE A. WHITE, Judge Section A of the Orleans Parish Criminal District\\nCourt; TRACEY FLEMINGS-DAVILLIER, Judge Section B of the Orleans\\nParish Criminal District Court; BENEDICT WILLARD, Judge Section C of\\nthe Orleans Parish Criminal District Court; KEVA LANDRUM-JOHNSON,\\nJudge Section E of the Orleans Parish Criminal District Court; ROBIN\\nPITTMAN, Judge Section F of the Orleans Parish Criminal District Court;\\nBYRON C. WILLIAMS, Judge Section G of the Orleans Parish Criminal\\nDistrict Court; CAMILLE BURAS, Judge Section H of the Orleans Parish\\nCriminal District Court; KAREN K. HERMAN, Judge Section I of the\\nOrleans Parish Criminal District Court; DARRYL DERBIGNY, Judge\\nSection J of the Orleans Parish Criminal District Court; ARTHUR HUNTER,\\nJudge Section K of the Orleans Parish Criminal District Court; FRANZ\\nZIBILICH, Judge Section L of the Orleans Parish Criminal District Court;\\nHARRY E. CANTRELL, Magistrate Judge of the Orleans Parish Criminal\\nDistrict Court,\\n\\n Defendants - Appellants\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of Louisiana\\n\\f Case: 18-30955 Document: 00515090064 Page: 2 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\nBefore HAYNES, GRAVES, and HO, Circuit Judges.\\nJAMES E. GRAVES, JR., Circuit Judge:\\n Plaintiff-Appellees are former criminal defendants in Orleans Parish,\\nLouisiana who sued Defendant-Appellants, Judges of the Orleans Parish\\nCriminal District Court (“OPCDC”), under 42 U.S.C. § 1983. Plaintiffs alleged\\nthe Judges’ practices in collecting criminal fines and fees violated the Due\\nProcess Clause of the Fourteenth Amendment. The district court granted\\nsummary judgment in Plaintiffs’ favor. We affirm, although we emphasize at\\nthe outset that the resolution of this case is dictated by the particular facts\\nbefore us.\\n I. BACKGROUND\\n A. The Parties\\n Plaintiff-Appellees are Alana Cain, Ashton Brown, Reynaud Variste,\\nReynajia Variste, Thaddeus Long, and Vanessa Maxwell, former criminal\\ndefendants in OPCDC who pleaded guilty to various criminal offenses between\\n2011 and 2014. All but Reynaud Variste qualified for and were appointed\\npublic defenders. At sentencing, Plaintiffs were assessed fines and fees ranging\\nfrom $148 to $901.50. All were arrested for failure to pay their assessed fines\\nand fees, given a $20,000 bond, and spent anywhere from six days to two weeks\\nin jail.\\n Defendant-Appellants are twelve OPCDC judges, Judges Laurie A.\\nWhite, Tracey Flemings-Davilier, Benedict Willard, Keva Landrum-Johnson,\\nRobin Pittman, Byron C. Williams, Camille Buras, Karen K. Herman, Darryl\\nDerbigny, Arthur Hunter, Franz Zibilich, and Magistrate Judge Harry\\nCantrell (the “Judges”). 1\\n\\n\\n 1 All claims against the OPCDC and the City of New Orleans were dismissed prior to\\nthe district court’s order granting summary judgment at issue here. Judicial Administrator\\nRobert Kazik and Orleans Parish Sheriff Marlin Gusman are not parties to this appeal.\\n 2\\n\\f Case: 18-30955 Document: 00515090064 Page: 3 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\n B. The Judicial Expense Fund (“JEF”)\\n The JEF is established pursuant to La. Rev. Stat. § 13:1381.4 and\\nconsists of OPCDC revenue that is not designated or restricted for a specific\\npurpose. Accordingly, it is also known as the General Fund. The JEF receives\\nfunding from a variety of sources, including the City of New Orleans and bail\\nbond fees, but approximately one quarter of the monies it receives comes from\\nthe court’s collection of fines and fees.\\n The Judges have exclusive control over how the JEF is spent, and\\ngenerally use it for the following:\\n salaries and related-employment benefits (excluding the judges),\\n CLE travel, legislative expenses, conferences and legal education,\\n ceremonies, office supplies, cleaning supplies, law books, bottled\\n water, jury expenses, telephone, postage, pest control, dues and\\n subscriptions, paper supplies, advertising, building maintenance\\n and repairs, cleaning services, capital outlay, equipment\\n maintenance and repairs, lease payments, equipment rentals,\\n professional and contractual expenses, the drug testing supplies,\\n coffee, transcripts, insurance, and miscellaneous.\\n\\nMoney from the fund may not be used to supplement the Judges’ own salaries,\\nalthough, as noted above, it can be used to pay the salaries of court personnel.\\nLa. Rev. Stat. § 13:1381.4(D). Each judge is allocated $250,000 per annum for\\npersonnel salaries and $1,000 for court costs from the JEF. The fund also\\ncovers the cost of professional liability insurance coverage as authorized by the\\nLouisiana Supreme Court. “For some time prior to 2011, some judges received\\nsupplemental benefits” from the JEF in the form of supplemental health\\ninsurance policies and reimbursement for out-of-pocket medical expenses;\\nhowever, this practice fully ended by 2012 following an investigation by the\\nLouisiana Legislative Auditor.\\n\\n\\n\\n\\n 3\\n\\f Case: 18-30955 Document: 00515090064 Page: 4 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\n When collection of the fines and fees is reduced, the OPCDC can have a\\ndifficult time meeting its operational needs, leading to cuts in services,\\nreduction of staff salaries, and leaving some positions unfilled. During these\\ntimes, the Judges have attempted to increase their collection efforts and have\\nalso requested assistance from other sources of funding, including the City of\\nNew Orleans.\\n C. The Fines and Fees\\n Several Louisiana statutes and codes permit the Judges to assess fines\\nand fees to criminal defendants at sentencing. Some fines and fees have specific\\npurposes and are collected to be distributed for specific statutory purposes, 2\\nwhile others are collected and then split between the court and other agencies. 3\\nHowever, some fines and fees go directly into the JEF. 4 The statutory\\nrequirements of yet other fines and fees is ambiguous. 5\\n\\n\\n\\n\\n 2 Restitution is collected to benefit the victims of crime, see La. Code Crim. Proc. Art.\\n883.2, and a $14 fee is collected to be deposited into the indigent transcript fund to\\ncompensate court reporters. La. Rev. Stat. § 13:1381.1. Additionally, Louisiana statute allows\\nthe assessment of the costs of drug treatment or drug testing if the defendant is found not to\\nbe indigent. § 13:5304(B)(3)(e), (C)(3)–(4). After 2012, it appears that these the indigent\\ntranscript fund fee and drug testing costs were deposited into the JEF.\\n 3 For example, fines pursuant to La. Rev. Stat. § 15:571.11 are split between the\\n\\nOPCDC and the District Attorney, and “court costs” assessed by the Judges can include fees\\nthat go to other agencies, including the Orleans Public Defender, the District Attorney, the\\nCriminal Sheriff, etc. The Sheriff also collects a 3% fee on bail bonds, two thirds of which goes\\nto an “administration of criminal justice fund” overseen by the chief judge of the OPCDC, the\\nOrleans Parish sheriff, the district attorney, and the director of the Orleans Parish indigent\\ndefender’s program, or their designees. § 22:822(A)(2), (B)(3); § 13.1381.5. The remaining\\nthird goes to the OPCDC. § 22.822(3).\\n 4 These include a mandatory $5 fee, La. Rev. Stat. § 13:1381.4, an “additional cost” of\\n\\nup to $500 for a defendant convicted of a misdemeanor and $2,000 for a defendant convicted\\nof a felony. § 13:1381.4(A)(2), (B).\\n 5 For instance, three Plaintiffs were charged a $100 or $200 fee to go into the indigent\\n\\ntranscript fund as a “condition of probation,” which went into the JEF. Louisiana Code of\\nCriminal Procedure Article 887(A) also allows for the collection of “all costs of the prosecution\\nor proceeding, . . . recoverable by the party or parties who incurred the expense.” The Judges\\nassessed these costs, but it is not clear where these costs went once collected.\\n 4\\n\\f Case: 18-30955 Document: 00515090064 Page: 5 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\n D. OPCDC’s Debt Collection Practices\\n Prior to this lawsuit, the Judges delegated collection authority to the\\nCollections Department, established by the OPCDC judges 6 in the late 1980s\\n“to (1) facilitate the collection of costs and fines [and] (2) to minimize the\\nadministrative and logistical burden on” the OPCDC’s dockets. The Collections\\nDepartment, supervised by both Mr. Kazik and the Judges, worked with\\ncriminal defendants in creating payment plans, accepting payments, and\\ngranting extensions. The Collections Department had “no standard list of\\nfactors or questions . . . to ask a criminal defendant except those at intake when\\ncollections obtained address, telephone and employment information and used\\nit for purposes of contacting the criminal defendant when they did not pay.”\\n Before issuing a warrant for a defendant’s arrest for failure to pay a court\\ndebt, the Collections Department would send two form letters to the defendant\\nwarning them of their overdue fines and fees and the possibility of arrest for\\nfailure to pay. If checking the court dockets or probation and jail records did\\nnot reveal a reason for nonpayment, the Collections Department issued an\\nalias capias warrant for contempt of court and generally set surety bail at\\n$20,000. A person imprisoned on one of these warrants would usually remain\\n“in jail until their family or friends could make a payment on their court debt,\\nor until a judge released them.”\\n After Plaintiffs filed the instant suit, the Judges withdrew the\\nCollections Department’s authority to issue warrants, recalled all active fines\\nand fees warrants issued prior to September 18, 2015 (except those where\\nrestitution remained unpaid or the individual had not appeared in court), and\\nwrote off approximately $1,000,000 in court debts. The Judges now handle\\n\\n\\n\\n 6 None of the Judges who are defendants in this lawsuit were on the bench or\\notherwise employed at the court when Collections was created.\\n 5\\n\\f Case: 18-30955 Document: 00515090064 Page: 6 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\ncollection issues on their own dockets, although they still issue alias capias\\nwarrants for failure to pay fines and fees. At the time of the district court’s\\nsummary judgment ruling, there was no evidence that the Judges had ever\\ninstituted a practice of considering a defendant’s ability to pay before jailing\\nthem for failure to pay their court debts.\\n E. Procedural Background\\n Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that the\\nJudges’ collection practices violated their Fourth and Fourteenth Amendment\\nrights, as well as Louisiana tort law. The only one of their seven claims at issue\\non appeal is Count Five, summarized by the district court as follows:\\n Defendants’ policy of jailing indigent debtors for nonpayment of\\n court debts without any inquiry into their ability to pay is\\n unconstitutional under the Due Process clause and the Equal\\n Protection Clause of the Fourteenth Amendment, and the Judge’s\\n authority over both fines and fees revenue and ability-to-pay\\n determinations violates the Due Process Clause.\\n\\nCain v. City of New Orleans, 281 F. Supp. 3d. 624, 633 (E.D. La. 2017)\\n(emphasis added). The district court ordered the parties to submit cross-\\nmotions for summary judgment on Count Five (and several other counts) and\\ngranted summary judgment to Plaintiffs on both portions of Count Five. The\\ndistrict court then certified a class and issued a declaratory judgment.\\n The Judges only challenge the portion of the district court’s declaratory\\njudgment which declared that “with respect to all persons who owe or will incur\\ncourt debts arising from cases adjudicated in OPCDC, and whose debts are at\\nleast partly owed to the OPCDC Judicial Expense Fund, the Judges’ failure to\\nprovide a neutral forum for determination of such persons’ ability to pay is\\nunconstitutional.” They do not challenge the district court’s judgment stating\\nthat “the Judges’ policy or practice of not inquiring into the ability to pay of\\n\\n\\n\\n 6\\n\\f Case: 18-30955 Document: 00515090064 Page: 7 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\nsuch persons before they are imprisoned for nonpayment of court debts is\\nunconstitutional.”\\n II. STANDARD OF REVIEW\\n “This court reviews a district court’s grant of summary judgment de\\nnovo, applying the same legal standards as the district court.” Tradewinds\\nEnvtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir.\\n2009) (quoting Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir.\\n2005)). “Summary judgment is appropriate when ‘the movant shows that there\\nis no genuine dispute as to any material fact and the movant is entitled to\\njudgment as a matter of law.’” United States v. Nature’s Way Marine, L.L.C.,\\n904 F.3d 416, 419 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).\\n III. DISCUSSION\\n “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement\\nof due process.’” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009)\\n(quoting In re Murchison, 349 U.S. 133, 136 (1955)). “That officers acting in a\\njudicial or quasi judicial capacity are disqualified by their interest in the\\ncontroversy to be decided is of course the general rule.” Tumey v. State of Ohio,\\n273 U.S. 510, 522 (1927). However, “[a]ll questions of judicial qualification may\\nnot involve constitutional validity.” Id. at 523. The issue here is whether the\\nJudges’ administrative supervision over the JEF, while simultaneously\\noverseeing the collection of fines and fees making up a substantial portion of\\nthe JEF, crosses the constitutional line.\\n A. “Average Man as Judge” versus “Average . . . Judge”\\n The Judges primary argument is that the district court improperly\\napplied the “average man as judge” standard rather than the “average judge”\\nstandard when determining whether the Judges’ interest in the JEF violated\\ndue process. According to the Judges, the “average man as judge” standard is\\napplied in situations where “the impartiality of non-judges acting as judges” is\\n 7\\n\\f Case: 18-30955 Document: 00515090064 Page: 8 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\ncalled into question, not cases where the “average judge’s” impartiality is under\\ndebate. Essentially, the Judges argue that an average man might be swayed\\nby the institutional interest at play here, but not an average judge. The caselaw\\nsimply does not support such a distinction.\\n 1. Legal Background\\n In Tumey, the mayor of an Ohio village presided over a “liquor court,”\\nwhich allowed him to try and convict individuals alleged to unlawfully possess\\nintoxicating liquor within the county. Tumey, 273 U.S. at 515. The Ohio\\nstatutes which established the liquor courts allowed the mayor to impose a fine\\non those convicted and to order the person sentenced to remain in prison until\\nthe fine was paid. Id. at 516. As remuneration for his troubles, the mayor could\\nretain the amount of his costs in each case from the convicted defendant over\\nand above his regular salary. Id. at 519–20. In addition, the village over which\\nthe mayor presided received half the funds from the imposed fines (the other\\nhalf went to the state). Id. at 534–35.\\n Eventually, a defendant challenged the mayor’s qualifications to hear his\\ncase and the Court found the defendant “was entitled to halt the trial because\\nof the disqualification of the judge, which existed both because of his direct\\npecuniary interest in the outcome, and because of his official motive to convict\\nand to graduate the fine to help the financial needs of the village.” Id. at 535.\\nThe Court observed,\\n Every procedure which would offer a possible temptation to the\\n average man as a judge to forget the burden of proof required to\\n convict the defendant, or which might lead him not to hold the\\n balance nice, clear, and true between the state and the accused\\n denies the latter due process of law.\\n\\nId. at 532.\\n While Tumey was generally thought to focus on a judge’s financial\\ninterest, both personal and institutional, In re Murchison, 349 U.S. 133 (1955)\\n 8\\n\\f Case: 18-30955 Document: 00515090064 Page: 9 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\nestablished a separate line of Supreme Court cases focusing on a judge’s\\npossible “conflict arising from his participation in an earlier proceeding.”\\nCaperton, 556 U.S. at 880. In Murchison, the unconstitutional conflict came\\nfrom a judge who, as allowed by statute, had been examining witnesses as a\\n“one-man judge-grand jury” in deciding whether criminal charges should be\\nbrought. Murchison, 349 U.S. at 133–34. The judge, unhappy with the\\nresponses of two witnesses, subsequently charged, tried, and convicted each\\none of contempt based on his belief that one witness lied and the other refused\\nto answer questions before him as “judge-grand-jury.” Id. at 134–35. The Court\\nconcluded this dual-role violated due process, and quoted Tumey in saying that\\n“[e]very procedure which would offer a possible temptation to the average man\\nas a judge * * * not to hold the balance nice, clear, and true between the State\\nand the accused denies the latter due process of law.” Murchison, 349 U.S. at\\n136 (quoting Tumey, 273 U.S. at 532).\\n In a case fairly similar to Tumey, the Supreme Court again addressed\\nthe possible institutional biases inherent in another mayor’s court. Ward v.\\nVill. of Monroeville, Ohio, 409 U.S. 57 (1972). In Ward, an Ohio statute allowed\\n“mayors to sit as judges in cases of ordinance violations and certain traffic\\noffenses” and the “fines, forfeitures, costs, and fees imposed by” the mayor in\\nthese courts formed a major part of the village’s funding. Ward, 409 U.S. at\\n57–58. In addition, the mayor was the “president of the village council,\\npreside[d] at all meetings, vote[d] in case of a tie, account[ed] annually to the\\ncouncil respecting village finances, fill[ed] vacancies in village offices and ha[d]\\ngeneral overall supervision of village affairs.” Id. at 58.\\n The Court applied the same test espoused in Tumey:\\n Although ‘the mere union of the executive power and the judicial\\n power in him cannot be said to violate due process of law,’ the test\\n is whether the mayor’s situation is one ‘which would offer a\\n possible temptation to the average man as a judge to forget the\\n 9\\n\\f Case: 18-30955 Document: 00515090064 Page: 10 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\n burden of proof required to convict the defendant, or which might\\n lead him not to hold the balance nice, clear, and true between the\\n state and the accused . . . .’\\n\\nWard, 409 U.S. at 60 (quoting Tumey, at 532, 534) (internal citations\\nremoved)). Because “that ‘possible temptation’ may also exist when the mayor’s\\nexecutive responsibilities for village finances may make him partisan to\\nmaintain the high level of contribution from the mayor’s court,” the Court\\nfound the mayor’s court in Ward presented “a ‘situation in which an official\\nperforce occupies two practically and seriously inconsistent positions, one\\npartisan and the other judicial, (and) necessarily involves a lack of due process\\nof law in the trial of defendants charged with crimes before him.’” Id. at 60.\\n Over a decade later, the Supreme Court again had occasion to discuss\\nwhat level of financial interest might render “the average . . . judge” unable “to\\nhold the balance nice, clear and true.” Aetna Life Ins. Co. v. Lavoie, 475 U.S.\\n813, 821 (1986). In Aetna, a justice on the Alabama Supreme Court\\nparticipated in a decision regarding punitive damages in bad faith insurance\\nclaims while he was simultaneously a lead plaintiff in a class action suit\\nseeking punitive damages on a bad faith claim. Id. at 817. While the Court\\ndiscussed many factors that might bear on the necessity for recusal, the Court\\nheld “simply that when Justice Embry made that judgment, he acted as ‘a\\njudge in his own case.’” Id. at 824 (quoting Murchison, 349 U.S. at 136).\\n While it was possible that the justice was not influenced by his\\nparticipation in the state court case, under the principles laid out in Tumey,\\nMurchison, and Ward, actual influence was not necessary—it only mattered\\nwhether the situation “would offer a possible temptation to the average . . .\\njudge to . . . lead him to not to hold the balance nice, clear and true.” Aetna,\\n475 U.S. at 825 (quoting Ward, 409 U.S. at 60). Because of Justice Embry’s\\nparticipation in the case, the Court found the “appearance of justice” best\\n\\n 10\\n\\f Case: 18-30955 Document: 00515090064 Page: 11 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\n“served by vacating the decision and remanding for further proceedings.” Id.\\nat 828.\\n 2. Judges’ Argument\\n Disregarding the principles undergirding Aetna, the Judges argue that\\nAetna essentially came along and established a new standard by shortening\\nTumey and Ward’s “average man as judge” to “average . . . judge.” Aetna, 475\\nU.S. at 822, 825. While the Court did alter “average man as judge,” the Court\\napplied the exact same principles discussed in Ward, Murchison, and Tumey\\nto the Alabama Supreme Court justice. There was no articulation of a higher\\nstandard for judges, much less an explanation as to how such a standard might\\ndiffer from that applied to mayors acting as judges. Aetna, 475 U.S. at 825.\\nFurthermore, reading Aetna as the Judges suggest would mean reading Aetna\\nto overrule Murchison, which applied the “average man as judge” standard to\\na sitting judge. Murchison, 349 U.S. at 136. We find it hard to believe that the\\nCourt overruled one of its cases with an ellipsis. Finally, the recent Supreme\\nCourt case of Caperton reinforces the idea that the standards announced, and\\nthe situations presented, in Tumey and Ward apply equally to judges and non-\\njudges acting as judges. Caperton, 556 U.S. at 877–82 (discussing the various\\nprinciples from Tumey, Ward, Murchison and Aetna as applying to “judges”).\\n The district court did not err in applying the principles from Tumey and\\nWard to the facts of this case.\\n B. The Judges’ Institutional Interest in the JEF\\n 1. The District Court’s Reliance on Ward\\n The Judges next contest the district court’s reliance on Ward to find that\\nthe Judges’ pecuniary interest in the JEF “crosses the constitutional line.”\\nThey allege “[t]he district court erred in its blanket comparison of the Judges’\\ninstitutional interest here to the mayor’s institutional interest in Ward.” The\\nJudges distinguish Ward by noting the mayor there had broad executive power\\n 11\\n\\f Case: 18-30955 Document: 00515090064 Page: 12 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\nover all the village finances and he was politically responsible for the town’s\\nfunds, whereas here the Judges only directly manage a portion of the revenue\\nfrom the fines and fees. Plaintiffs argue that the Judges’ interest here is almost\\nexactly like that in Ward because the Judges impose the fines and fees and\\nexercise complete control over how the revenue generated from the fines and\\nfees is spent.\\n The district court very thoroughly examined the ways in which the\\nJudges have an institutional interest in the JEF. It observed that the “[f]ines\\nand fees revenue goes into the Judicial Expense Fund,” over which “the Judges\\nexercise total control.” Cain, 281 F. Supp. 3d at 654. It noted that while the\\nmoney does not support the Judges’ personal salaries, it largely goes to support\\nthe salaries of each Judges’ staff. In addition, the district court noted that while\\nsome of the money collected from fees is earmarked for specific purposes, the\\nrevenue all goes to the JEF and makes up approximately one-fourth of the\\nOPCDC’s budget.\\n In Ward, “[a] major part of village income [was] derived from the fines,\\nforfeitures, costs, and fees imposed” by the mayor in his court, and the mayor\\nhad “wide executive powers” that included accounting to the village council\\nregarding village finances, filling vacancies in village offices, and “general\\noverall supervision of village affairs.” Ward, 409 U.S. at 58. Here, the Judges\\nhave exclusive authority over how the JEF is spent, they must account for the\\nOPCDC budget to the New Orleans City Council and New Orleans Mayor, and\\nthe fines and fees make up a significant portion of their annual budget. We\\nagree with the district court that the situation here falls within the ambit of\\nWard. In doing so, we emphasize it is the totality of this situation, not any\\n\\n\\n\\n\\n 12\\n\\f Case: 18-30955 Document: 00515090064 Page: 13 Date Filed: 08/23/2019\\n\\n\\n\\n No. 18-30955\\nindividual piece, that leads us to this conclusion. In sum, when everything\\ninvolved in this case is put together, the “temptation” 7 is too great.\\n Given this constitutional infirmity, we find the Judges’ remaining\\narguments unavailing.\\n\\n\\n IV. CONCLUSION\\n For the foregoing reasons, we AFFIRM the judgment of the district court.\\nThe Judges’ motion to supplement the record is DENIED.\\n\\n\\n\\n\\n 7 In so concluding, we do not in any way suggest that the Judges actually succumbed\\nto that “temptation.”\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3695,"cells":{"id":{"kind":"number","value":4656190,"string":"4,656,190"},"name":{"kind":"string","value":"UNITED STATES of America,, Plaintiff-Appellant v. Javier FUENTES-RODRIGUEZ, Defendant-Appellee"},"name_abbreviation":{"kind":"string","value":"United States v. Javier Fuentes-Rodriguez"},"decision_date":{"kind":"string","value":"2019-08-26"},"docket_number":{"kind":"string","value":"15-40740"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Clement, Elrod, Oldham, Per Curiam\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 15-40740 Document: 00515092397 Page: 1 Date Filed: 08/26/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 15-40740 FILED\\n Summary Calendar August 26, 2019\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,,\\n\\n Plaintiff-Appellant\\n\\nv.\\n\\nJAVIER FUENTES-RODRIGUEZ,\\n\\n Defendant-Appellee\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore CLEMENT, ELROD, and OLDHAM, Circuit Judges.\\nPER CURIAM:\\n Javier Fuentes-Rodriguez appeals his sentence imposed following his\\nguilty plea conviction for illegal reentry into the United States following\\ndeportation and having been previously convicted of an aggravated felony. He\\nargues that his prior conviction under Texas Penal Code § 22.01(a)(1) and (b)(2)\\ndoes not qualify as a crime of violence under 18 U.S.C. § 16 and therefore is\\nnot an aggravated felony for purposes of 8 U.S.C. § 1326(b)(2) and U.S.S.G.\\n§ 2L1.2(b)(1)(C).\\n Fuentes-Rodriguez’s argument is foreclosed by United States v. Gracia-\\nCantu, 920 F.3d 252, 254 (5th Cir. 2019), petition for cert. filed (June 25, 2019)\\n(18-1593). Gracia-Cantu held that a prior conviction for Assault-Family\\n\\f Case: 15-40740 Document: 00515092397 Page: 2 Date Filed: 08/26/2019\\n\\n\\n No. 15-40740\\n\\nViolence under Texas Penal Code § 22.01(a)(1) and (b)(2) fell within 18 U.S.C.\\n§ 16(a), thereby qualifying as a crime of violence and an aggravated felony for\\npurposes of § 1326(b)(2) and § 2L1.2(b)(1)(C). 920 F.3d at 254. Gracia-Cantu\\nrelied on this court’s en banc decision in United States v. Reyes-Contreras, 910\\nF.3d 169, 183 (5th Cir. 2018 (en banc) (rejecting a “directness of force”\\nrequirement for a crime of violence).\\n The judgment of the district court is AFFIRMED.\\n\\n\\n\\n\\n 2\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4433443/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"CLEMENT"},"judge2":{"kind":"string","value":"ELROD"},"judge3":{"kind":"string","value":"OLDHAM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4656190/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America,, Plaintiff-Appellant v. Javier FUENTES-RODRIGUEZ, Defendant-Appellee\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 15-40740 Document: 00515092397 Page: 1 Date Filed: 08/26/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 15-40740 FILED\n Summary Calendar August 26, 2019\n Lyle W. Cayce\n Clerk\nUNITED STATES OF AMERICA,,\n\n Plaintiff-Appellant\n\nv.\n\nJAVIER FUENTES-RODRIGUEZ,\n\n Defendant-Appellee\n\n\n Appeal from the United States District Court\n for the Southern District of Texas\n\n\nBefore CLEMENT, ELROD, and OLDHAM, Circuit Judges.\nPER CURIAM:\n Javier Fuentes-Rodriguez appeals his sentence imposed following his\nguilty plea conviction for illegal reentry into the United States following\ndeportation and having been previously convicted of an aggravated felony. He\nargues that his prior conviction under Texas Penal Code § 22.01(a)(1) and (b)(2)\ndoes not qualify as a crime of violence under 18 U.S.C. § 16 and therefore is\nnot an aggravated felony for purposes of 8 U.S.C. § 1326(b)(2) and U.S.S.G.\n§ 2L1.2(b)(1)(C).\n Fuentes-Rodriguez’s argument is foreclosed by United States v. Gracia-\nCantu, 920 F.3d 252, 254 (5th Cir. 2019), petition for cert. filed (June 25, 2019)\n(18-1593). Gracia-Cantu held that a prior conviction for Assault-Family\n\f Case: 15-40740 Document: 00515092397 Page: 2 Date Filed: 08/26/2019\n\n\n No. 15-40740\n\nViolence under Texas Penal Code § 22.01(a)(1) and (b)(2) fell within 18 U.S.C.\n§ 16(a), thereby qualifying as a crime of violence and an aggravated felony for\npurposes of § 1326(b)(2) and § 2L1.2(b)(1)(C). 920 F.3d at 254. Gracia-Cantu\nrelied on this court’s en banc decision in United States v. Reyes-Contreras, 910\nF.3d 169, 183 (5th Cir. 2018 (en banc) (rejecting a “directness of force”\nrequirement for a crime of violence).\n The judgment of the district court is AFFIRMED.\n\n\n\n\n 2\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America,, Plaintiff-Appellant v. Javier FUENTES-RODRIGUEZ, Defendant-Appellee\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 15-40740 Document: 00515092397 Page: 1 Date Filed: 08/26/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 15-40740 FILED\\n Summary Calendar August 26, 2019\\n Lyle W. Cayce\\n Clerk\\nUNITED STATES OF AMERICA,,\\n\\n Plaintiff-Appellant\\n\\nv.\\n\\nJAVIER FUENTES-RODRIGUEZ,\\n\\n Defendant-Appellee\\n\\n\\n Appeal from the United States District Court\\n for the Southern District of Texas\\n\\n\\nBefore CLEMENT, ELROD, and OLDHAM, Circuit Judges.\\nPER CURIAM:\\n Javier Fuentes-Rodriguez appeals his sentence imposed following his\\nguilty plea conviction for illegal reentry into the United States following\\ndeportation and having been previously convicted of an aggravated felony. He\\nargues that his prior conviction under Texas Penal Code § 22.01(a)(1) and (b)(2)\\ndoes not qualify as a crime of violence under 18 U.S.C. § 16 and therefore is\\nnot an aggravated felony for purposes of 8 U.S.C. § 1326(b)(2) and U.S.S.G.\\n§ 2L1.2(b)(1)(C).\\n Fuentes-Rodriguez’s argument is foreclosed by United States v. Gracia-\\nCantu, 920 F.3d 252, 254 (5th Cir. 2019), petition for cert. filed (June 25, 2019)\\n(18-1593). Gracia-Cantu held that a prior conviction for Assault-Family\\n\\f Case: 15-40740 Document: 00515092397 Page: 2 Date Filed: 08/26/2019\\n\\n\\n No. 15-40740\\n\\nViolence under Texas Penal Code § 22.01(a)(1) and (b)(2) fell within 18 U.S.C.\\n§ 16(a), thereby qualifying as a crime of violence and an aggravated felony for\\npurposes of § 1326(b)(2) and § 2L1.2(b)(1)(C). 920 F.3d at 254. Gracia-Cantu\\nrelied on this court’s en banc decision in United States v. Reyes-Contreras, 910\\nF.3d 169, 183 (5th Cir. 2018 (en banc) (rejecting a “directness of force”\\nrequirement for a crime of violence).\\n The judgment of the district court is AFFIRMED.\\n\\n\\n\\n\\n 2\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3696,"cells":{"id":{"kind":"number","value":4656193,"string":"4,656,193"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Paul Valderas v. City of Lubbock"},"decision_date":{"kind":"string","value":"2019-08-26"},"docket_number":{"kind":"string","value":"18-11023"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-11023 May 21, 2019\\n Lyle W. Cayce\\nPAUL ANTHONY VALDERAS, Clerk\\n\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCITY OF LUBBOCK, a political subdivision; BILLY MITCHELL,\\nindividually and his official capacity,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\\nPER CURIAM:\\n Paul Valderas appeals the district court’s grant of summary judgment in\\nfavor of Officer Billy Mitchell dismissing Valderas’s 42 U.S.C. § 1983 excessive\\nforce claim. Valderas contends that there were genuine issues of material fact\\nregarding whether Officer Mitchell was reasonable in using deadly force.\\nValderas further contends that the district court abused its discretion by\\naccepting Mitchell’s motion to strike a significant portion of Valderas’s\\nsummary judgment evidence. We conclude that Valderas has failed to present\\na genuine issue of material fact regarding his excessive force claim. We further\\nconclude that the district court did not abuse its discretion in granting Officer\\n\\f No. 18-11023\\nMitchell’s motion to strike certain evidence and statements offered by Valderas\\nin summary judgment proceedings. Consequently, we AFFIRM the judgment\\nof the district court.\\n I.\\n This case arises out of the events surrounding the arrest of Paul Valderas\\non the night of January 26, 2017, pursuant to a felony arrest warrant issued\\nfor Valderas’s violation of parole. It is undisputed that during the arrest,\\nValderas was shot three times (out of the five successive shots fired) by Officer\\nBilly Mitchell, resulting in Valderas’s partial paralysis. 1\\n Leading up to this event, a Confidential Informant (CI) working with\\nthe Lubbock Police Department allegedly contacted Valderas about purchasing\\ndrugs and agreed to meet Valderas at a residence. Later that night Valderas\\nexited the residence to meet with the occupants of a car that had parked in\\nfront of the residence. The CI sat in the passenger seat. 2 Valderas was talking\\nto the CI through the passenger window of the parked car when he saw a\\nvehicle approaching at a high rate of speed with its bright lights on.\\n The vehicle in question transported an arrest team including Officer\\nMitchell, Sergeant Don Billingsley, and Investigator Daniel Merritt. They\\nwere planning to take Valderas into custody pursuant to an outstanding felony\\nwarrant for his arrest. The arrest team was notified that Valderas was\\nconsidered armed and dangerous. The officers were also briefed that Valderas\\nhad recently evaded police in a motor vehicle, and that he had a violent and\\n\\n\\n\\n\\n 1 A security camera from a neighboring residence capturing the encounter was\\nproduced as video evidence and is relied upon by both parties on appeal.\\n 2 In his deposition, Valderas also mentions an unidentified person in the backseat,\\npassenger’s side, wearing a hoodie.\\n\\n 2\\n\\f 18-11023\\n\\n\\nlengthy criminal history. The plan was to apprehend Valderas as he exited the\\nresidence. 3\\n Valderas claims that he feared he would be ambushed and robbed, so he\\ntook the gun in his hand from his waistband as the car approached. All three\\nofficers testified that they saw Valderas pull a gun from his waistband.\\nAccording to Valderas, as he was pulling his gun from his waistband, the CI\\ntold him that it was the police, so he threw the gun into the car. 4 Investigator\\nMerritt yelled, “Gun!” Nearly simultaneously, Officer Mitchell exited the car,\\ndrew his weapon, and yelled, “Police!” 5 Officer Mitchell fired five shots at\\nValderas, striking him three times.\\n The entire incident, from the time that the police vehicle began\\napproaching until Valderas was shot, did not last more than ten seconds.\\nOfficer Mitchell testified that he did not see Valderas discard the weapon\\nbefore opening fire. The two other officers testified to the same. Investigator\\nMerritt testified, however, that he later found the gun inside the car.\\n II.\\n Valderas filed this civil complaint against Officer Mitchell, officially and\\nindividually, and the City of Lubbock, alleging excessive force in violation of\\n42 U.S.C. § 1983. 6 Officer Mitchell moved for summary judgment on grounds\\n\\n\\n\\n 3The Lubbock Police Department had been conducting surveillance of Valderas in\\nconnection with an ongoing narcotics investigation. A SWAT team was on standby if\\nnecessary to assist in the arrest.\\n 4Valderas also claims that he put his hands up and started running away. This\\ntestimony is flatly contradicted by the video evidence.\\n 5 All three officers on the arrest team were wearing their department issued tactical\\nvests with “POLICE” in bold, white reflective letters.\\n 6 The City of Lubbock did not file a brief in this appeal.\\n\\n 3\\n\\f 18-11023\\n\\n\\nof qualified immunity as to the claim against him in his individual capacity,\\nasserting that his use of force was objectively reasonable because he reasonably\\nbelieved that Valderas possessed a gun and was a threat to everyone present,\\nincluding the two innocent bystanders in the car next to Valderas.\\n Also apropos to this appeal, Officer Mitchell filed a motion before the\\ndistrict court, titled “Motion for Leave to File Reply Brief, Objections and\\nMotion to Strike and Exclude Inadmissible Portions of Plaintiff’s Summary\\nJudgment Evidence and Unsupported Assertions.” In his motion, Officer\\nMitchell (1) requested leave to file his reply brief; (2) objected to eleven of\\nValderas’s exhibits filed in response to the motion for summary judgment as\\ninadmissible and not competent summary judgment evidence; (3) objected to\\ncertain assertions by Valderas as unsupported; and (4) moved to strike based\\non each of these objections. In response, Valderas opposed the motion, arguing\\nthat the motion was not filed in compliance with Northern District of Texas\\nLocal Rule 7.1; that is, that Officer Mitchell’s counsel allegedly failed to\\nproperly conference with Valderas’s counsel prior to filing the motion—\\ncontrary to the recited certification of conference.\\n The district court granted Officer Mitchell’s motion to strike, noting that\\nValderas failed to contest the arguments raised in the motion to strike, and it\\nfound, without further explanation, that each objection Mitchell raised was\\nmeritorious. In the same ruling, the district court concluded that Officer\\nMitchell was entitled to qualified immunity and granted his motion for\\nsummary judgment. Accordingly, the district court entered judgment\\ndismissing the claims against Officer Mitchell.\\n III.\\n Valderas now appeals the district court’s grant of summary judgment on\\nthe issue of qualified immunity. Valderas argues that the use of deadly force\\n 4\\n\\f 18-11023\\n\\n\\nis confined to the moment of the threat, which he contends ceased when\\nValderas threw the gun in the car. Valderas points to the allegedly\\n“inconsistent” descriptions of the location of Valderas’s gun in Officer Mitchell’s\\nsworn statement on January 29, 2017 and in his December 27, 2017 affidavit\\nas evidence that Officer Mitchell knew that Valderas was no longer armed and\\nthat the threat had ceased. Valderas also emphasizes that Sgt. Billingsley\\nconfronted the same facts as Officer Mitchell but did not fire his weapon; and\\nhe argues that this restrained conduct establishes that Officer Mitchell acted\\nunreasonably. Additionally, he says that all three bullets struck him in the\\nback, supporting his contention that he was fleeing when the shots were fired.\\nLastly, Valderas challenges the district court’s decision to strike certain\\nevidence he submitted in opposition to Officer Mitchell’s motion for summary\\njudgment.\\n IV.\\n We first address the standard of review. We review a grant of summary\\njudgment de novo, applying the same standard as the district court. Tiblier v.\\nDlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Coliseum Square Ass’n v.\\nJackson, 465 F.3d 215, 244 (5th Cir. 2006)). “Summary judgment is proper ‘if\\nthe movant shows that there is no genuine dispute as to any material fact and\\nthe movant is entitled to judgment as a matter of law.’” Rogers v. Bromac Title\\nServs., 755 F.3d 347, 350 (5th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). There\\nexists a genuine dispute of material fact “if the evidence is such that a\\nreasonable jury could return a verdict for the nonmoving party.” Anderson v.\\nLiberty Lobby, Inc., 477 U.S. 242, 248 (1986). “We construe all facts and\\ninferences in the light most favorable to the nonmoving party.” Murray v.\\nEarle, 405 F.3d 278, 284 (5th Cir. 2005) (citing Hart v. O’Brien, 127 F.3d 424,\\n435 (5th Cir. 1997)). But “[s]ummary judgment may not be thwarted by\\n 5\\n\\f 18-11023\\n\\n\\nconclusional allegations, unsupported assertions, or presentation of only a\\nscintilla of evidence.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)\\n(citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).\\n “Further, although courts view evidence in the light most favorable to\\nthe nonmoving party, they give greater weight, even at the summary judgment\\nstage, to the facts evident from video recordings taken at the scene.” Griggs v.\\nBrewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing Carnaby v. City of Houston,\\n636 F.3d 183, 187 (5th Cir. 2011)). “When opposing parties tell two different\\nstories, one of which is blatantly contradicted by the record, so that no\\nreasonable jury could believe it, a court should not adopt that version of the\\nfacts for purposes of ruling on a motion for summary judgment.” Scott v.\\nHarris, 550 U.S. 372, 380 (2007).\\n A good-faith qualified immunity defense alters the usual summary\\njudgment burden of proof. Although we view the evidence in the light most\\nfavorable to the nonmoving party, the plaintiff bears the burden of\\ndemonstrating that a defendant is not entitled to qualified immunity. Trent v.\\nWade, 776 F.3d 368, 376 (5th Cir. 2015) (citing Kovacic v. Villarreal, 628 F.3d\\n209, 211 (5th Cir. 2010)). “To negate a defense of qualified immunity and avoid\\nsummary judgment, the plaintiff need not present ‘absolute proof,’ but must\\noffer more than ‘mere allegations.’” Ontiveros v. City of Rosenberg, 564 F.3d\\n379, 382 (5th Cir. 2009) (quoting Reese v. Anderson, 926 F.2d 494, 499 (5th Cir.\\n1991)).\\n Discretionary matters, including the district court’s application of local\\nrules in disposing of motions, are reviewed under an abuse of discretion\\nstandard. Victor F. v. Pasadena Indep. Sch. Dist., 793 F.2d 633, 635 (5th Cir.\\n1986).\\n\\n\\n 6\\n\\f 18-11023\\n\\n\\n V.\\n We now turn to address the substance of Valderas’s claim. When\\nevaluating a claim of qualified immunity “we engage in a two-part inquiry\\nasking: first, whether taken in the light most favorable to the party asserting\\nthe injury, . . . the facts alleged show the officer’s conduct violated a\\nconstitutional right; and second, whether the right was clearly established.”\\nTrammell v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017) (internal quotation marks\\nand citations omitted). 7 To overcome a claim of qualified immunity in an\\nexcessive force case, the plaintiff “must show ‘(1) an injury, (2) which resulted\\ndirectly and only from a use of force that was clearly excessive, and (3) the\\nexcessiveness of which was clearly unreasonable.’” Poole v. City of Shreveport,\\n691 F.3d 624, 628 (5th Cir. 2012) (quoting Ontiveros, 564 F.3d at 382).\\nExcessive force claims are “evaluated for objective reasonableness based on the\\ninformation the officers had when the conduct occurred.” Saucier v. Katz, 533\\nU.S. 194, 207 (2001). “[A]n exercise of force that is reasonable at one moment\\ncan become unreasonable in the next if the justification for the use of force has\\nceased.” Lytle v. Bexar Cnty., 560 F.3d 404, 413 (5th Cir. 2009). Recognizing\\nthat “police officers are often forced to make split-second judgments—in\\ncircumstances that are tense, uncertain, and rapidly evolving—about the\\namount of force that is necessary in a particular situation,” Graham v. Connor,\\n490 U.S. 386, 397 (1989), the Supreme Court has warned against “second-\\nguessing a police officer’s assessment, made on the scene, of the danger\\npresented by a particular situation,” Ryburn v. Huff, 565 U.S. 469, 477 (2012).\\n\\n\\n\\n 7 We may exercise our discretion in deciding which prong to address first. See, e.g.,\\nCantrell v. City of Murphy, 666 F.3d 911, 919 (5th Cir. 2012) (citing Pearson v. Callahan, 555\\nU.S. 223, 236 (2009)).\\n\\n 7\\n\\f 18-11023\\n\\n\\nAccordingly, reasonableness “must be judged from the perspective of a\\nreasonable officer on the scene, rather than with the 20/20 vision of hindsight.”\\nGraham, 490 U.S. at 396.\\n “The use of deadly force violates the Fourth Amendment unless the\\nofficer has probable cause to believe that the suspect poses a threat of serious\\nphysical harm, either to the officer or to others.” Romero v. City of Grapevine,\\n888 F.3d 170, 176 (5th Cir. 2018) (quoting Tennessee v. Garner, 471 U.S. 1, 11\\n(1985)) (internal quotation marks omitted). Stated differently, “[a]n officer’s\\nuse of deadly force is not excessive, and thus no constitutional violation occurs,\\nwhen the officer reasonably believes that the suspect poses a threat of serious\\nharm.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (citing Ontiveros,\\n564 F.3d at 382).\\n Applying the law to the facts of this case, we first note that Valderas\\nadmits to pulling a gun from his trousers. He argues, however, that the\\nexercise of deadly force was no longer reasonable once he threw the gun into\\nthe vehicle and “turned to flee.” Contrary to Valderas’s assertions, the video\\nfootage does not show that he put his hands up, nor does it show that he was\\nfleeing, when the shots were fired. See Scott, 550 U.S. at 380 (“When opposing\\nparties tell two different stories, one of which is blatantly contradicted by the\\nrecord . . . a court should not adopt that version of the facts for purposes of\\nruling on a motion for summary judgment.”). Instead, Valderas only can be\\nseen leaning into the car—not discarding the gun. 8\\n\\n\\n 8 Valderas argues that Officer Mitchell’s initial statement that Officer Mitchell saw\\nValderas’s gun on the ground after Officer Mitchell approached the car creates a genuine\\nissue of fact as to whether Officer Mitchell saw or should have seen Valderas discard the gun.\\nWe do not see any merit in this argument. First, it is not clear that Officer Mitchell’s initial\\nstatement was inaccurate, as Investigator Merritt testified that, after the incident, he took\\nthe gun from the car and placed it on the ground. Second, the statements are not inherently\\n 8\\n\\f 18-11023\\n\\n\\n Given these facts, there is no genuine dispute but that Officer Mitchell’s\\ndecision to use deadly force was reasonable under these circumstances. Our\\ncircuit has repeatedly held that an officer’s use of deadly force is reasonable\\nwhen an officer reasonably believes that a suspect was attempting to use or\\nreach for a weapon. See, e.g., Manis, 585 F.3d at 844–45 (collecting cases and\\nfinding that the officer’s use of deadly force was not excessive when undisputed\\nevidence showed that suspect “in defiance of the officers’ contrary orders,\\nreached under the seat of his vehicle and appeared to retrieve an object that\\n[the officer] reasonably believed to be a weapon”). It is immaterial whether a\\nplaintiff was actually armed. See Romero, 888 F.3d at 178. Here, it is\\nundisputed that Officer Mitchell saw Valderas intentionally brandish a\\nfirearm at the approaching officers. Although Valderas contends that he\\ndiscarded the gun before he was shot, the events transpired in a matter of\\nseconds, leaving Officer Mitchell with little time to realize that Valderas no\\nlonger possessed a gun before making the decision to open fire. Considering\\nthe totality of the facts and circumstances, a reasonable officer in Officer\\nMitchell’s position would have reasonably perceived Valderas’s actions to pose\\nan imminent threat of serious harm at the time the shots were fired. See\\nSalazar-Limon v. City of Houston, 826 F.3d 272, 279 (5th Cir. 2016). It follows\\nthat it was not unreasonable for Officer Mitchell to use deadly force to protect\\nhimself and others. Officer Mitchell was not required to wait to confirm that\\nValderas intended to use the gun before shooting. See Ramirez v. Knoulton,\\n542 F.3d 124, 130 (5th Cir. 2008) (“The Fourth Amendment does not require\\n\\n\\ninconsistent, as Officer Mitchell’s second statement simply does not mention the location of\\nthe gun after the shooting. Third, to the extent that there is any inconsistency in Officer\\nMitchell’s testimony, it has no bearing on the question of whether Officer Mitchell saw or\\nshould have seen Valderas discard the gun.\\n\\n 9\\n\\f 18-11023\\n\\n\\npolice officers to wait until a suspect shoots to confirm that a serious threat of\\nharm exists.” (quoting Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996))).\\nConsequently, we find that Officer Mitchell did not violate Valderas’s Fourth\\nAmendment rights. 9\\n VI.\\n Valderas also argues that the district court abused its discretion when it\\ngranted Officer Mitchell’s motion to strike certain exhibits and statements\\noffered by Valderas in summary judgment proceedings because Officer\\nMitchell’s counsel allegedly failed to comply with Northern District of Texas\\nLocal Rule 7.1. 10\\n The local rule requires that a party, when filing a motion, certify that\\nthe parties conferred on the motion, explain when they conferred, which\\nattorneys conferred, and why they could not reach an agreement. 11 Before\\n\\n\\n\\n\\n 9 We are also unpersuaded by Valderas’s argument that the fact that Sgt. Billingsley\\ndid not use deadly force establishes that Officer Mitchell’s decision to use such force was\\nunreasonable. Sgt. Billingsley was driving the vehicle, and he testified that Valderas was\\nalready collapsing by the time that he was able to exit. Officer Mitchell’s decision to use\\ndeadly force does not become unreasonable simply because Sgt. Billingsley did not also use\\ndeadly force, especially given the differing positions of the two officers. Furthermore, Sgt.\\nBillingsley testified that he too feared for his life and was expecting a gun fight.\\n 10Valderas did not present arguments pertaining to the admissibility of the excluded\\nevidence to the district court, nor does he make such arguments on appeal.\\n 11 The relevant section of Northern District of Texas Local Rule 7.1 reads as follows:\\n a. Conference - Before filing a motion, an attorney for the moving party\\n must confer with an attorney for each party affected by the requested\\n relief to determine whether the motion is opposed. Conferences are not\\n required for motions to dismiss, motions for judgment on the pleadings,\\n motions for summary judgment, motions for new trial, or when a\\n conference is not possible.\\n b. Certificate of Conference.\\n\\n 10\\n\\f 18-11023\\n\\n\\nfiling the motion to strike at issue here, Officer Mitchell’s counsel emailed\\nValderas’s counsel, explained the motion, and asked Valderas’s counsel if\\nValderas opposed the motion. Valderas’s counsel expressed confusion about\\ncertain aspects of the motion, insisted that a telephone conference was\\nrequired under the local rules, and stated that he could not “advise [his] client\\nand gain approval to oppose or not oppose your motion” without such a\\ntelephone conference. Officer Mitchell’s counsel replied with additional details\\nabout the motion and explained that she did not believe that a telephone\\nconference was necessary. Valderas’s counsel responded by again insisting\\nthat a telephone conference was “more appropriate.”\\n Officer Mitchell’s counsel did not respond. Instead, Officer Mitchell filed\\nthe motion with the district court. The motion contained a certificate noting\\nthe email exchange and explaining that Officer Mitchell was unsure if\\nValderas opposed the motion. Valderas subsequently opposed the motion\\nsolely by arguing that it violated the local rule. The district court granted the\\nmotion after summarily noting that it was “meritorious.”\\n Valderas cites to only one decision explicating the meaning of the local\\nrule in question and implies that the decision establishes that a telephone\\nconversation is necessary to satisfy the conference requirement. The decision\\n\\n\\n 1. Each motion for which a conference is required must include\\n a certificate of conference indicating that the motion is\\n unopposed or opposed.\\n 2. If a motion is opposed, the certificate must state that a\\n conference was held, indicate the date of conference and the\\n identities of the attorneys conferring, and explain why\\n agreement could not be reached.\\n 3. If a conference was not held, the certificate must explain why\\n it was not possible to confer, in which event the motion will be\\n presumed to be opposed.\\n\\n 11\\n\\f 18-11023\\n\\n\\nexplicitly notes, however, that the conference requirement can be met through\\na written conferral. See Dondi Props. Corp. v. Commerce Sav. & Loan Ass’n,\\n121 F.R.D. 284, 290 (N.D. Tex. 1988) (en banc) (per curiam). Valderas has\\nprovided no authority to suggest that Officer Mitchell’s counsel did anything\\nimproper by declining to confer over the telephone. To the point, we see no\\nbasis for finding that the district court abused its discretion by accepting\\nOfficer Mitchell’s motion to strike. 12\\n VII.\\n Accordingly, we hold that Officer Mitchell did not violate Valderas’s\\nFourth Amendment rights when he used deadly force against Valderas. We\\nfurther hold that the district court did not abuse its discretion by granting\\nOfficer Mitchell’s motion to strike. The judgment of the district court is thus\\n AFFIRMED.\\n\\n\\n\\n\\n 12 Even if we considered the evidence that the district court excluded, however, our\\nqualified immunity determination would remain the same.\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4433446/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"JOLLY"},"judge2":{"kind":"string","value":"COSTA"},"judge3":{"kind":"string","value":"ENGELHARDT"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JOLLY\": \", Circuit\", \"COSTA\": \", Circuit\", \"ENGELHARDT\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4656193/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Paul Valderas v. City of Lubbock\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nIN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 18-11023 May 21, 2019\n Lyle W. Cayce\nPAUL ANTHONY VALDERAS, Clerk\n\n\n Plaintiff - Appellant\n\nv.\n\nCITY OF LUBBOCK, a political subdivision; BILLY MITCHELL,\nindividually and his official capacity,\n\n Defendants - Appellees\n\n\n\n\n Appeals from the United States District Court\n for the Northern District of Texas\n\n\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\nPER CURIAM:\n Paul Valderas appeals the district court’s grant of summary judgment in\nfavor of Officer Billy Mitchell dismissing Valderas’s 42 U.S.C. § 1983 excessive\nforce claim. Valderas contends that there were genuine issues of material fact\nregarding whether Officer Mitchell was reasonable in using deadly force.\nValderas further contends that the district court abused its discretion by\naccepting Mitchell’s motion to strike a significant portion of Valderas’s\nsummary judgment evidence. We conclude that Valderas has failed to present\na genuine issue of material fact regarding his excessive force claim. We further\nconclude that the district court did not abuse its discretion in granting Officer\n\f No. 18-11023\nMitchell’s motion to strike certain evidence and statements offered by Valderas\nin summary judgment proceedings. Consequently, we AFFIRM the judgment\nof the district court.\n I.\n This case arises out of the events surrounding the arrest of Paul Valderas\non the night of January 26, 2017, pursuant to a felony arrest warrant issued\nfor Valderas’s violation of parole. It is undisputed that during the arrest,\nValderas was shot three times (out of the five successive shots fired) by Officer\nBilly Mitchell, resulting in Valderas’s partial paralysis. 1\n Leading up to this event, a Confidential Informant (CI) working with\nthe Lubbock Police Department allegedly contacted Valderas about purchasing\ndrugs and agreed to meet Valderas at a residence. Later that night Valderas\nexited the residence to meet with the occupants of a car that had parked in\nfront of the residence. The CI sat in the passenger seat. 2 Valderas was talking\nto the CI through the passenger window of the parked car when he saw a\nvehicle approaching at a high rate of speed with its bright lights on.\n The vehicle in question transported an arrest team including Officer\nMitchell, Sergeant Don Billingsley, and Investigator Daniel Merritt. They\nwere planning to take Valderas into custody pursuant to an outstanding felony\nwarrant for his arrest. The arrest team was notified that Valderas was\nconsidered armed and dangerous. The officers were also briefed that Valderas\nhad recently evaded police in a motor vehicle, and that he had a violent and\n\n\n\n\n 1 A security camera from a neighboring residence capturing the encounter was\nproduced as video evidence and is relied upon by both parties on appeal.\n 2 In his deposition, Valderas also mentions an unidentified person in the backseat,\npassenger’s side, wearing a hoodie.\n\n 2\n\f 18-11023\n\n\nlengthy criminal history. The plan was to apprehend Valderas as he exited the\nresidence. 3\n Valderas claims that he feared he would be ambushed and robbed, so he\ntook the gun in his hand from his waistband as the car approached. All three\nofficers testified that they saw Valderas pull a gun from his waistband.\nAccording to Valderas, as he was pulling his gun from his waistband, the CI\ntold him that it was the police, so he threw the gun into the car. 4 Investigator\nMerritt yelled, “Gun!” Nearly simultaneously, Officer Mitchell exited the car,\ndrew his weapon, and yelled, “Police!” 5 Officer Mitchell fired five shots at\nValderas, striking him three times.\n The entire incident, from the time that the police vehicle began\napproaching until Valderas was shot, did not last more than ten seconds.\nOfficer Mitchell testified that he did not see Valderas discard the weapon\nbefore opening fire. The two other officers testified to the same. Investigator\nMerritt testified, however, that he later found the gun inside the car.\n II.\n Valderas filed this civil complaint against Officer Mitchell, officially and\nindividually, and the City of Lubbock, alleging excessive force in violation of\n42 U.S.C. § 1983. 6 Officer Mitchell moved for summary judgment on grounds\n\n\n\n 3The Lubbock Police Department had been conducting surveillance of Valderas in\nconnection with an ongoing narcotics investigation. A SWAT team was on standby if\nnecessary to assist in the arrest.\n 4Valderas also claims that he put his hands up and started running away. This\ntestimony is flatly contradicted by the video evidence.\n 5 All three officers on the arrest team were wearing their department issued tactical\nvests with “POLICE” in bold, white reflective letters.\n 6 The City of Lubbock did not file a brief in this appeal.\n\n 3\n\f 18-11023\n\n\nof qualified immunity as to the claim against him in his individual capacity,\nasserting that his use of force was objectively reasonable because he reasonably\nbelieved that Valderas possessed a gun and was a threat to everyone present,\nincluding the two innocent bystanders in the car next to Valderas.\n Also apropos to this appeal, Officer Mitchell filed a motion before the\ndistrict court, titled “Motion for Leave to File Reply Brief, Objections and\nMotion to Strike and Exclude Inadmissible Portions of Plaintiff’s Summary\nJudgment Evidence and Unsupported Assertions.” In his motion, Officer\nMitchell (1) requested leave to file his reply brief; (2) objected to eleven of\nValderas’s exhibits filed in response to the motion for summary judgment as\ninadmissible and not competent summary judgment evidence; (3) objected to\ncertain assertions by Valderas as unsupported; and (4) moved to strike based\non each of these objections. In response, Valderas opposed the motion, arguing\nthat the motion was not filed in compliance with Northern District of Texas\nLocal Rule 7.1; that is, that Officer Mitchell’s counsel allegedly failed to\nproperly conference with Valderas’s counsel prior to filing the motion—\ncontrary to the recited certification of conference.\n The district court granted Officer Mitchell’s motion to strike, noting that\nValderas failed to contest the arguments raised in the motion to strike, and it\nfound, without further explanation, that each objection Mitchell raised was\nmeritorious. In the same ruling, the district court concluded that Officer\nMitchell was entitled to qualified immunity and granted his motion for\nsummary judgment. Accordingly, the district court entered judgment\ndismissing the claims against Officer Mitchell.\n III.\n Valderas now appeals the district court’s grant of summary judgment on\nthe issue of qualified immunity. Valderas argues that the use of deadly force\n 4\n\f 18-11023\n\n\nis confined to the moment of the threat, which he contends ceased when\nValderas threw the gun in the car. Valderas points to the allegedly\n“inconsistent” descriptions of the location of Valderas’s gun in Officer Mitchell’s\nsworn statement on January 29, 2017 and in his December 27, 2017 affidavit\nas evidence that Officer Mitchell knew that Valderas was no longer armed and\nthat the threat had ceased. Valderas also emphasizes that Sgt. Billingsley\nconfronted the same facts as Officer Mitchell but did not fire his weapon; and\nhe argues that this restrained conduct establishes that Officer Mitchell acted\nunreasonably. Additionally, he says that all three bullets struck him in the\nback, supporting his contention that he was fleeing when the shots were fired.\nLastly, Valderas challenges the district court’s decision to strike certain\nevidence he submitted in opposition to Officer Mitchell’s motion for summary\njudgment.\n IV.\n We first address the standard of review. We review a grant of summary\njudgment de novo, applying the same standard as the district court. Tiblier v.\nDlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Coliseum Square Ass’n v.\nJackson, 465 F.3d 215, 244 (5th Cir. 2006)). “Summary judgment is proper ‘if\nthe movant shows that there is no genuine dispute as to any material fact and\nthe movant is entitled to judgment as a matter of law.’” Rogers v. Bromac Title\nServs., 755 F.3d 347, 350 (5th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). There\nexists a genuine dispute of material fact “if the evidence is such that a\nreasonable jury could return a verdict for the nonmoving party.” Anderson v.\nLiberty Lobby, Inc., 477 U.S. 242, 248 (1986). “We construe all facts and\ninferences in the light most favorable to the nonmoving party.” Murray v.\nEarle, 405 F.3d 278, 284 (5th Cir. 2005) (citing Hart v. O’Brien, 127 F.3d 424,\n435 (5th Cir. 1997)). But “[s]ummary judgment may not be thwarted by\n 5\n\f 18-11023\n\n\nconclusional allegations, unsupported assertions, or presentation of only a\nscintilla of evidence.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)\n(citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).\n “Further, although courts view evidence in the light most favorable to\nthe nonmoving party, they give greater weight, even at the summary judgment\nstage, to the facts evident from video recordings taken at the scene.” Griggs v.\nBrewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing Carnaby v. City of Houston,\n636 F.3d 183, 187 (5th Cir. 2011)). “When opposing parties tell two different\nstories, one of which is blatantly contradicted by the record, so that no\nreasonable jury could believe it, a court should not adopt that version of the\nfacts for purposes of ruling on a motion for summary judgment.” Scott v.\nHarris, 550 U.S. 372, 380 (2007).\n A good-faith qualified immunity defense alters the usual summary\njudgment burden of proof. Although we view the evidence in the light most\nfavorable to the nonmoving party, the plaintiff bears the burden of\ndemonstrating that a defendant is not entitled to qualified immunity. Trent v.\nWade, 776 F.3d 368, 376 (5th Cir. 2015) (citing Kovacic v. Villarreal, 628 F.3d\n209, 211 (5th Cir. 2010)). “To negate a defense of qualified immunity and avoid\nsummary judgment, the plaintiff need not present ‘absolute proof,’ but must\noffer more than ‘mere allegations.’” Ontiveros v. City of Rosenberg, 564 F.3d\n379, 382 (5th Cir. 2009) (quoting Reese v. Anderson, 926 F.2d 494, 499 (5th Cir.\n1991)).\n Discretionary matters, including the district court’s application of local\nrules in disposing of motions, are reviewed under an abuse of discretion\nstandard. Victor F. v. Pasadena Indep. Sch. Dist., 793 F.2d 633, 635 (5th Cir.\n1986).\n\n\n 6\n\f 18-11023\n\n\n V.\n We now turn to address the substance of Valderas’s claim. When\nevaluating a claim of qualified immunity “we engage in a two-part inquiry\nasking: first, whether taken in the light most favorable to the party asserting\nthe injury, . . . the facts alleged show the officer’s conduct violated a\nconstitutional right; and second, whether the right was clearly established.”\nTrammell v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017) (internal quotation marks\nand citations omitted). 7 To overcome a claim of qualified immunity in an\nexcessive force case, the plaintiff “must show ‘(1) an injury, (2) which resulted\ndirectly and only from a use of force that was clearly excessive, and (3) the\nexcessiveness of which was clearly unreasonable.’” Poole v. City of Shreveport,\n691 F.3d 624, 628 (5th Cir. 2012) (quoting Ontiveros, 564 F.3d at 382).\nExcessive force claims are “evaluated for objective reasonableness based on the\ninformation the officers had when the conduct occurred.” Saucier v. Katz, 533\nU.S. 194, 207 (2001). “[A]n exercise of force that is reasonable at one moment\ncan become unreasonable in the next if the justification for the use of force has\nceased.” Lytle v. Bexar Cnty., 560 F.3d 404, 413 (5th Cir. 2009). Recognizing\nthat “police officers are often forced to make split-second judgments—in\ncircumstances that are tense, uncertain, and rapidly evolving—about the\namount of force that is necessary in a particular situation,” Graham v. Connor,\n490 U.S. 386, 397 (1989), the Supreme Court has warned against “second-\nguessing a police officer’s assessment, made on the scene, of the danger\npresented by a particular situation,” Ryburn v. Huff, 565 U.S. 469, 477 (2012).\n\n\n\n 7 We may exercise our discretion in deciding which prong to address first. See, e.g.,\nCantrell v. City of Murphy, 666 F.3d 911, 919 (5th Cir. 2012) (citing Pearson v. Callahan, 555\nU.S. 223, 236 (2009)).\n\n 7\n\f 18-11023\n\n\nAccordingly, reasonableness “must be judged from the perspective of a\nreasonable officer on the scene, rather than with the 20/20 vision of hindsight.”\nGraham, 490 U.S. at 396.\n “The use of deadly force violates the Fourth Amendment unless the\nofficer has probable cause to believe that the suspect poses a threat of serious\nphysical harm, either to the officer or to others.” Romero v. City of Grapevine,\n888 F.3d 170, 176 (5th Cir. 2018) (quoting Tennessee v. Garner, 471 U.S. 1, 11\n(1985)) (internal quotation marks omitted). Stated differently, “[a]n officer’s\nuse of deadly force is not excessive, and thus no constitutional violation occurs,\nwhen the officer reasonably believes that the suspect poses a threat of serious\nharm.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (citing Ontiveros,\n564 F.3d at 382).\n Applying the law to the facts of this case, we first note that Valderas\nadmits to pulling a gun from his trousers. He argues, however, that the\nexercise of deadly force was no longer reasonable once he threw the gun into\nthe vehicle and “turned to flee.” Contrary to Valderas’s assertions, the video\nfootage does not show that he put his hands up, nor does it show that he was\nfleeing, when the shots were fired. See Scott, 550 U.S. at 380 (“When opposing\nparties tell two different stories, one of which is blatantly contradicted by the\nrecord . . . a court should not adopt that version of the facts for purposes of\nruling on a motion for summary judgment.”). Instead, Valderas only can be\nseen leaning into the car—not discarding the gun. 8\n\n\n 8 Valderas argues that Officer Mitchell’s initial statement that Officer Mitchell saw\nValderas’s gun on the ground after Officer Mitchell approached the car creates a genuine\nissue of fact as to whether Officer Mitchell saw or should have seen Valderas discard the gun.\nWe do not see any merit in this argument. First, it is not clear that Officer Mitchell’s initial\nstatement was inaccurate, as Investigator Merritt testified that, after the incident, he took\nthe gun from the car and placed it on the ground. Second, the statements are not inherently\n 8\n\f 18-11023\n\n\n Given these facts, there is no genuine dispute but that Officer Mitchell’s\ndecision to use deadly force was reasonable under these circumstances. Our\ncircuit has repeatedly held that an officer’s use of deadly force is reasonable\nwhen an officer reasonably believes that a suspect was attempting to use or\nreach for a weapon. See, e.g., Manis, 585 F.3d at 844–45 (collecting cases and\nfinding that the officer’s use of deadly force was not excessive when undisputed\nevidence showed that suspect “in defiance of the officers’ contrary orders,\nreached under the seat of his vehicle and appeared to retrieve an object that\n[the officer] reasonably believed to be a weapon”). It is immaterial whether a\nplaintiff was actually armed. See Romero, 888 F.3d at 178. Here, it is\nundisputed that Officer Mitchell saw Valderas intentionally brandish a\nfirearm at the approaching officers. Although Valderas contends that he\ndiscarded the gun before he was shot, the events transpired in a matter of\nseconds, leaving Officer Mitchell with little time to realize that Valderas no\nlonger possessed a gun before making the decision to open fire. Considering\nthe totality of the facts and circumstances, a reasonable officer in Officer\nMitchell’s position would have reasonably perceived Valderas’s actions to pose\nan imminent threat of serious harm at the time the shots were fired. See\nSalazar-Limon v. City of Houston, 826 F.3d 272, 279 (5th Cir. 2016). It follows\nthat it was not unreasonable for Officer Mitchell to use deadly force to protect\nhimself and others. Officer Mitchell was not required to wait to confirm that\nValderas intended to use the gun before shooting. See Ramirez v. Knoulton,\n542 F.3d 124, 130 (5th Cir. 2008) (“The Fourth Amendment does not require\n\n\ninconsistent, as Officer Mitchell’s second statement simply does not mention the location of\nthe gun after the shooting. Third, to the extent that there is any inconsistency in Officer\nMitchell’s testimony, it has no bearing on the question of whether Officer Mitchell saw or\nshould have seen Valderas discard the gun.\n\n 9\n\f 18-11023\n\n\npolice officers to wait until a suspect shoots to confirm that a serious threat of\nharm exists.” (quoting Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996))).\nConsequently, we find that Officer Mitchell did not violate Valderas’s Fourth\nAmendment rights. 9\n VI.\n Valderas also argues that the district court abused its discretion when it\ngranted Officer Mitchell’s motion to strike certain exhibits and statements\noffered by Valderas in summary judgment proceedings because Officer\nMitchell’s counsel allegedly failed to comply with Northern District of Texas\nLocal Rule 7.1. 10\n The local rule requires that a party, when filing a motion, certify that\nthe parties conferred on the motion, explain when they conferred, which\nattorneys conferred, and why they could not reach an agreement. 11 Before\n\n\n\n\n 9 We are also unpersuaded by Valderas’s argument that the fact that Sgt. Billingsley\ndid not use deadly force establishes that Officer Mitchell’s decision to use such force was\nunreasonable. Sgt. Billingsley was driving the vehicle, and he testified that Valderas was\nalready collapsing by the time that he was able to exit. Officer Mitchell’s decision to use\ndeadly force does not become unreasonable simply because Sgt. Billingsley did not also use\ndeadly force, especially given the differing positions of the two officers. Furthermore, Sgt.\nBillingsley testified that he too feared for his life and was expecting a gun fight.\n 10Valderas did not present arguments pertaining to the admissibility of the excluded\nevidence to the district court, nor does he make such arguments on appeal.\n 11 The relevant section of Northern District of Texas Local Rule 7.1 reads as follows:\n a. Conference - Before filing a motion, an attorney for the moving party\n must confer with an attorney for each party affected by the requested\n relief to determine whether the motion is opposed. Conferences are not\n required for motions to dismiss, motions for judgment on the pleadings,\n motions for summary judgment, motions for new trial, or when a\n conference is not possible.\n b. Certificate of Conference.\n\n 10\n\f 18-11023\n\n\nfiling the motion to strike at issue here, Officer Mitchell’s counsel emailed\nValderas’s counsel, explained the motion, and asked Valderas’s counsel if\nValderas opposed the motion. Valderas’s counsel expressed confusion about\ncertain aspects of the motion, insisted that a telephone conference was\nrequired under the local rules, and stated that he could not “advise [his] client\nand gain approval to oppose or not oppose your motion” without such a\ntelephone conference. Officer Mitchell’s counsel replied with additional details\nabout the motion and explained that she did not believe that a telephone\nconference was necessary. Valderas’s counsel responded by again insisting\nthat a telephone conference was “more appropriate.”\n Officer Mitchell’s counsel did not respond. Instead, Officer Mitchell filed\nthe motion with the district court. The motion contained a certificate noting\nthe email exchange and explaining that Officer Mitchell was unsure if\nValderas opposed the motion. Valderas subsequently opposed the motion\nsolely by arguing that it violated the local rule. The district court granted the\nmotion after summarily noting that it was “meritorious.”\n Valderas cites to only one decision explicating the meaning of the local\nrule in question and implies that the decision establishes that a telephone\nconversation is necessary to satisfy the conference requirement. The decision\n\n\n 1. Each motion for which a conference is required must include\n a certificate of conference indicating that the motion is\n unopposed or opposed.\n 2. If a motion is opposed, the certificate must state that a\n conference was held, indicate the date of conference and the\n identities of the attorneys conferring, and explain why\n agreement could not be reached.\n 3. If a conference was not held, the certificate must explain why\n it was not possible to confer, in which event the motion will be\n presumed to be opposed.\n\n 11\n\f 18-11023\n\n\nexplicitly notes, however, that the conference requirement can be met through\na written conferral. See Dondi Props. Corp. v. Commerce Sav. & Loan Ass’n,\n121 F.R.D. 284, 290 (N.D. Tex. 1988) (en banc) (per curiam). Valderas has\nprovided no authority to suggest that Officer Mitchell’s counsel did anything\nimproper by declining to confer over the telephone. To the point, we see no\nbasis for finding that the district court abused its discretion by accepting\nOfficer Mitchell’s motion to strike. 12\n VII.\n Accordingly, we hold that Officer Mitchell did not violate Valderas’s\nFourth Amendment rights when he used deadly force against Valderas. We\nfurther hold that the district court did not abuse its discretion by granting\nOfficer Mitchell’s motion to strike. The judgment of the district court is thus\n AFFIRMED.\n\n\n\n\n 12 Even if we considered the evidence that the district court excluded, however, our\nqualified immunity determination would remain the same.\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Paul Valderas v. City of Lubbock\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nIN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 18-11023 May 21, 2019\\n Lyle W. Cayce\\nPAUL ANTHONY VALDERAS, Clerk\\n\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nCITY OF LUBBOCK, a political subdivision; BILLY MITCHELL,\\nindividually and his official capacity,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of Texas\\n\\n\\nBefore JOLLY, COSTA, and ENGELHARDT, Circuit Judges.\\nPER CURIAM:\\n Paul Valderas appeals the district court’s grant of summary judgment in\\nfavor of Officer Billy Mitchell dismissing Valderas’s 42 U.S.C. § 1983 excessive\\nforce claim. Valderas contends that there were genuine issues of material fact\\nregarding whether Officer Mitchell was reasonable in using deadly force.\\nValderas further contends that the district court abused its discretion by\\naccepting Mitchell’s motion to strike a significant portion of Valderas’s\\nsummary judgment evidence. We conclude that Valderas has failed to present\\na genuine issue of material fact regarding his excessive force claim. We further\\nconclude that the district court did not abuse its discretion in granting Officer\\n\\f No. 18-11023\\nMitchell’s motion to strike certain evidence and statements offered by Valderas\\nin summary judgment proceedings. Consequently, we AFFIRM the judgment\\nof the district court.\\n I.\\n This case arises out of the events surrounding the arrest of Paul Valderas\\non the night of January 26, 2017, pursuant to a felony arrest warrant issued\\nfor Valderas’s violation of parole. It is undisputed that during the arrest,\\nValderas was shot three times (out of the five successive shots fired) by Officer\\nBilly Mitchell, resulting in Valderas’s partial paralysis. 1\\n Leading up to this event, a Confidential Informant (CI) working with\\nthe Lubbock Police Department allegedly contacted Valderas about purchasing\\ndrugs and agreed to meet Valderas at a residence. Later that night Valderas\\nexited the residence to meet with the occupants of a car that had parked in\\nfront of the residence. The CI sat in the passenger seat. 2 Valderas was talking\\nto the CI through the passenger window of the parked car when he saw a\\nvehicle approaching at a high rate of speed with its bright lights on.\\n The vehicle in question transported an arrest team including Officer\\nMitchell, Sergeant Don Billingsley, and Investigator Daniel Merritt. They\\nwere planning to take Valderas into custody pursuant to an outstanding felony\\nwarrant for his arrest. The arrest team was notified that Valderas was\\nconsidered armed and dangerous. The officers were also briefed that Valderas\\nhad recently evaded police in a motor vehicle, and that he had a violent and\\n\\n\\n\\n\\n 1 A security camera from a neighboring residence capturing the encounter was\\nproduced as video evidence and is relied upon by both parties on appeal.\\n 2 In his deposition, Valderas also mentions an unidentified person in the backseat,\\npassenger’s side, wearing a hoodie.\\n\\n 2\\n\\f 18-11023\\n\\n\\nlengthy criminal history. The plan was to apprehend Valderas as he exited the\\nresidence. 3\\n Valderas claims that he feared he would be ambushed and robbed, so he\\ntook the gun in his hand from his waistband as the car approached. All three\\nofficers testified that they saw Valderas pull a gun from his waistband.\\nAccording to Valderas, as he was pulling his gun from his waistband, the CI\\ntold him that it was the police, so he threw the gun into the car. 4 Investigator\\nMerritt yelled, “Gun!” Nearly simultaneously, Officer Mitchell exited the car,\\ndrew his weapon, and yelled, “Police!” 5 Officer Mitchell fired five shots at\\nValderas, striking him three times.\\n The entire incident, from the time that the police vehicle began\\napproaching until Valderas was shot, did not last more than ten seconds.\\nOfficer Mitchell testified that he did not see Valderas discard the weapon\\nbefore opening fire. The two other officers testified to the same. Investigator\\nMerritt testified, however, that he later found the gun inside the car.\\n II.\\n Valderas filed this civil complaint against Officer Mitchell, officially and\\nindividually, and the City of Lubbock, alleging excessive force in violation of\\n42 U.S.C. § 1983. 6 Officer Mitchell moved for summary judgment on grounds\\n\\n\\n\\n 3The Lubbock Police Department had been conducting surveillance of Valderas in\\nconnection with an ongoing narcotics investigation. A SWAT team was on standby if\\nnecessary to assist in the arrest.\\n 4Valderas also claims that he put his hands up and started running away. This\\ntestimony is flatly contradicted by the video evidence.\\n 5 All three officers on the arrest team were wearing their department issued tactical\\nvests with “POLICE” in bold, white reflective letters.\\n 6 The City of Lubbock did not file a brief in this appeal.\\n\\n 3\\n\\f 18-11023\\n\\n\\nof qualified immunity as to the claim against him in his individual capacity,\\nasserting that his use of force was objectively reasonable because he reasonably\\nbelieved that Valderas possessed a gun and was a threat to everyone present,\\nincluding the two innocent bystanders in the car next to Valderas.\\n Also apropos to this appeal, Officer Mitchell filed a motion before the\\ndistrict court, titled “Motion for Leave to File Reply Brief, Objections and\\nMotion to Strike and Exclude Inadmissible Portions of Plaintiff’s Summary\\nJudgment Evidence and Unsupported Assertions.” In his motion, Officer\\nMitchell (1) requested leave to file his reply brief; (2) objected to eleven of\\nValderas’s exhibits filed in response to the motion for summary judgment as\\ninadmissible and not competent summary judgment evidence; (3) objected to\\ncertain assertions by Valderas as unsupported; and (4) moved to strike based\\non each of these objections. In response, Valderas opposed the motion, arguing\\nthat the motion was not filed in compliance with Northern District of Texas\\nLocal Rule 7.1; that is, that Officer Mitchell’s counsel allegedly failed to\\nproperly conference with Valderas’s counsel prior to filing the motion—\\ncontrary to the recited certification of conference.\\n The district court granted Officer Mitchell’s motion to strike, noting that\\nValderas failed to contest the arguments raised in the motion to strike, and it\\nfound, without further explanation, that each objection Mitchell raised was\\nmeritorious. In the same ruling, the district court concluded that Officer\\nMitchell was entitled to qualified immunity and granted his motion for\\nsummary judgment. Accordingly, the district court entered judgment\\ndismissing the claims against Officer Mitchell.\\n III.\\n Valderas now appeals the district court’s grant of summary judgment on\\nthe issue of qualified immunity. Valderas argues that the use of deadly force\\n 4\\n\\f 18-11023\\n\\n\\nis confined to the moment of the threat, which he contends ceased when\\nValderas threw the gun in the car. Valderas points to the allegedly\\n“inconsistent” descriptions of the location of Valderas’s gun in Officer Mitchell’s\\nsworn statement on January 29, 2017 and in his December 27, 2017 affidavit\\nas evidence that Officer Mitchell knew that Valderas was no longer armed and\\nthat the threat had ceased. Valderas also emphasizes that Sgt. Billingsley\\nconfronted the same facts as Officer Mitchell but did not fire his weapon; and\\nhe argues that this restrained conduct establishes that Officer Mitchell acted\\nunreasonably. Additionally, he says that all three bullets struck him in the\\nback, supporting his contention that he was fleeing when the shots were fired.\\nLastly, Valderas challenges the district court’s decision to strike certain\\nevidence he submitted in opposition to Officer Mitchell’s motion for summary\\njudgment.\\n IV.\\n We first address the standard of review. We review a grant of summary\\njudgment de novo, applying the same standard as the district court. Tiblier v.\\nDlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Coliseum Square Ass’n v.\\nJackson, 465 F.3d 215, 244 (5th Cir. 2006)). “Summary judgment is proper ‘if\\nthe movant shows that there is no genuine dispute as to any material fact and\\nthe movant is entitled to judgment as a matter of law.’” Rogers v. Bromac Title\\nServs., 755 F.3d 347, 350 (5th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). There\\nexists a genuine dispute of material fact “if the evidence is such that a\\nreasonable jury could return a verdict for the nonmoving party.” Anderson v.\\nLiberty Lobby, Inc., 477 U.S. 242, 248 (1986). “We construe all facts and\\ninferences in the light most favorable to the nonmoving party.” Murray v.\\nEarle, 405 F.3d 278, 284 (5th Cir. 2005) (citing Hart v. O’Brien, 127 F.3d 424,\\n435 (5th Cir. 1997)). But “[s]ummary judgment may not be thwarted by\\n 5\\n\\f 18-11023\\n\\n\\nconclusional allegations, unsupported assertions, or presentation of only a\\nscintilla of evidence.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)\\n(citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).\\n “Further, although courts view evidence in the light most favorable to\\nthe nonmoving party, they give greater weight, even at the summary judgment\\nstage, to the facts evident from video recordings taken at the scene.” Griggs v.\\nBrewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing Carnaby v. City of Houston,\\n636 F.3d 183, 187 (5th Cir. 2011)). “When opposing parties tell two different\\nstories, one of which is blatantly contradicted by the record, so that no\\nreasonable jury could believe it, a court should not adopt that version of the\\nfacts for purposes of ruling on a motion for summary judgment.” Scott v.\\nHarris, 550 U.S. 372, 380 (2007).\\n A good-faith qualified immunity defense alters the usual summary\\njudgment burden of proof. Although we view the evidence in the light most\\nfavorable to the nonmoving party, the plaintiff bears the burden of\\ndemonstrating that a defendant is not entitled to qualified immunity. Trent v.\\nWade, 776 F.3d 368, 376 (5th Cir. 2015) (citing Kovacic v. Villarreal, 628 F.3d\\n209, 211 (5th Cir. 2010)). “To negate a defense of qualified immunity and avoid\\nsummary judgment, the plaintiff need not present ‘absolute proof,’ but must\\noffer more than ‘mere allegations.’” Ontiveros v. City of Rosenberg, 564 F.3d\\n379, 382 (5th Cir. 2009) (quoting Reese v. Anderson, 926 F.2d 494, 499 (5th Cir.\\n1991)).\\n Discretionary matters, including the district court’s application of local\\nrules in disposing of motions, are reviewed under an abuse of discretion\\nstandard. Victor F. v. Pasadena Indep. Sch. Dist., 793 F.2d 633, 635 (5th Cir.\\n1986).\\n\\n\\n 6\\n\\f 18-11023\\n\\n\\n V.\\n We now turn to address the substance of Valderas’s claim. When\\nevaluating a claim of qualified immunity “we engage in a two-part inquiry\\nasking: first, whether taken in the light most favorable to the party asserting\\nthe injury, . . . the facts alleged show the officer’s conduct violated a\\nconstitutional right; and second, whether the right was clearly established.”\\nTrammell v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017) (internal quotation marks\\nand citations omitted). 7 To overcome a claim of qualified immunity in an\\nexcessive force case, the plaintiff “must show ‘(1) an injury, (2) which resulted\\ndirectly and only from a use of force that was clearly excessive, and (3) the\\nexcessiveness of which was clearly unreasonable.’” Poole v. City of Shreveport,\\n691 F.3d 624, 628 (5th Cir. 2012) (quoting Ontiveros, 564 F.3d at 382).\\nExcessive force claims are “evaluated for objective reasonableness based on the\\ninformation the officers had when the conduct occurred.” Saucier v. Katz, 533\\nU.S. 194, 207 (2001). “[A]n exercise of force that is reasonable at one moment\\ncan become unreasonable in the next if the justification for the use of force has\\nceased.” Lytle v. Bexar Cnty., 560 F.3d 404, 413 (5th Cir. 2009). Recognizing\\nthat “police officers are often forced to make split-second judgments—in\\ncircumstances that are tense, uncertain, and rapidly evolving—about the\\namount of force that is necessary in a particular situation,” Graham v. Connor,\\n490 U.S. 386, 397 (1989), the Supreme Court has warned against “second-\\nguessing a police officer’s assessment, made on the scene, of the danger\\npresented by a particular situation,” Ryburn v. Huff, 565 U.S. 469, 477 (2012).\\n\\n\\n\\n 7 We may exercise our discretion in deciding which prong to address first. See, e.g.,\\nCantrell v. City of Murphy, 666 F.3d 911, 919 (5th Cir. 2012) (citing Pearson v. Callahan, 555\\nU.S. 223, 236 (2009)).\\n\\n 7\\n\\f 18-11023\\n\\n\\nAccordingly, reasonableness “must be judged from the perspective of a\\nreasonable officer on the scene, rather than with the 20/20 vision of hindsight.”\\nGraham, 490 U.S. at 396.\\n “The use of deadly force violates the Fourth Amendment unless the\\nofficer has probable cause to believe that the suspect poses a threat of serious\\nphysical harm, either to the officer or to others.” Romero v. City of Grapevine,\\n888 F.3d 170, 176 (5th Cir. 2018) (quoting Tennessee v. Garner, 471 U.S. 1, 11\\n(1985)) (internal quotation marks omitted). Stated differently, “[a]n officer’s\\nuse of deadly force is not excessive, and thus no constitutional violation occurs,\\nwhen the officer reasonably believes that the suspect poses a threat of serious\\nharm.” Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009) (citing Ontiveros,\\n564 F.3d at 382).\\n Applying the law to the facts of this case, we first note that Valderas\\nadmits to pulling a gun from his trousers. He argues, however, that the\\nexercise of deadly force was no longer reasonable once he threw the gun into\\nthe vehicle and “turned to flee.” Contrary to Valderas’s assertions, the video\\nfootage does not show that he put his hands up, nor does it show that he was\\nfleeing, when the shots were fired. See Scott, 550 U.S. at 380 (“When opposing\\nparties tell two different stories, one of which is blatantly contradicted by the\\nrecord . . . a court should not adopt that version of the facts for purposes of\\nruling on a motion for summary judgment.”). Instead, Valderas only can be\\nseen leaning into the car—not discarding the gun. 8\\n\\n\\n 8 Valderas argues that Officer Mitchell’s initial statement that Officer Mitchell saw\\nValderas’s gun on the ground after Officer Mitchell approached the car creates a genuine\\nissue of fact as to whether Officer Mitchell saw or should have seen Valderas discard the gun.\\nWe do not see any merit in this argument. First, it is not clear that Officer Mitchell’s initial\\nstatement was inaccurate, as Investigator Merritt testified that, after the incident, he took\\nthe gun from the car and placed it on the ground. Second, the statements are not inherently\\n 8\\n\\f 18-11023\\n\\n\\n Given these facts, there is no genuine dispute but that Officer Mitchell’s\\ndecision to use deadly force was reasonable under these circumstances. Our\\ncircuit has repeatedly held that an officer’s use of deadly force is reasonable\\nwhen an officer reasonably believes that a suspect was attempting to use or\\nreach for a weapon. See, e.g., Manis, 585 F.3d at 844–45 (collecting cases and\\nfinding that the officer’s use of deadly force was not excessive when undisputed\\nevidence showed that suspect “in defiance of the officers’ contrary orders,\\nreached under the seat of his vehicle and appeared to retrieve an object that\\n[the officer] reasonably believed to be a weapon”). It is immaterial whether a\\nplaintiff was actually armed. See Romero, 888 F.3d at 178. Here, it is\\nundisputed that Officer Mitchell saw Valderas intentionally brandish a\\nfirearm at the approaching officers. Although Valderas contends that he\\ndiscarded the gun before he was shot, the events transpired in a matter of\\nseconds, leaving Officer Mitchell with little time to realize that Valderas no\\nlonger possessed a gun before making the decision to open fire. Considering\\nthe totality of the facts and circumstances, a reasonable officer in Officer\\nMitchell’s position would have reasonably perceived Valderas’s actions to pose\\nan imminent threat of serious harm at the time the shots were fired. See\\nSalazar-Limon v. City of Houston, 826 F.3d 272, 279 (5th Cir. 2016). It follows\\nthat it was not unreasonable for Officer Mitchell to use deadly force to protect\\nhimself and others. Officer Mitchell was not required to wait to confirm that\\nValderas intended to use the gun before shooting. See Ramirez v. Knoulton,\\n542 F.3d 124, 130 (5th Cir. 2008) (“The Fourth Amendment does not require\\n\\n\\ninconsistent, as Officer Mitchell’s second statement simply does not mention the location of\\nthe gun after the shooting. Third, to the extent that there is any inconsistency in Officer\\nMitchell’s testimony, it has no bearing on the question of whether Officer Mitchell saw or\\nshould have seen Valderas discard the gun.\\n\\n 9\\n\\f 18-11023\\n\\n\\npolice officers to wait until a suspect shoots to confirm that a serious threat of\\nharm exists.” (quoting Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996))).\\nConsequently, we find that Officer Mitchell did not violate Valderas’s Fourth\\nAmendment rights. 9\\n VI.\\n Valderas also argues that the district court abused its discretion when it\\ngranted Officer Mitchell’s motion to strike certain exhibits and statements\\noffered by Valderas in summary judgment proceedings because Officer\\nMitchell’s counsel allegedly failed to comply with Northern District of Texas\\nLocal Rule 7.1. 10\\n The local rule requires that a party, when filing a motion, certify that\\nthe parties conferred on the motion, explain when they conferred, which\\nattorneys conferred, and why they could not reach an agreement. 11 Before\\n\\n\\n\\n\\n 9 We are also unpersuaded by Valderas’s argument that the fact that Sgt. Billingsley\\ndid not use deadly force establishes that Officer Mitchell’s decision to use such force was\\nunreasonable. Sgt. Billingsley was driving the vehicle, and he testified that Valderas was\\nalready collapsing by the time that he was able to exit. Officer Mitchell’s decision to use\\ndeadly force does not become unreasonable simply because Sgt. Billingsley did not also use\\ndeadly force, especially given the differing positions of the two officers. Furthermore, Sgt.\\nBillingsley testified that he too feared for his life and was expecting a gun fight.\\n 10Valderas did not present arguments pertaining to the admissibility of the excluded\\nevidence to the district court, nor does he make such arguments on appeal.\\n 11 The relevant section of Northern District of Texas Local Rule 7.1 reads as follows:\\n a. Conference - Before filing a motion, an attorney for the moving party\\n must confer with an attorney for each party affected by the requested\\n relief to determine whether the motion is opposed. Conferences are not\\n required for motions to dismiss, motions for judgment on the pleadings,\\n motions for summary judgment, motions for new trial, or when a\\n conference is not possible.\\n b. Certificate of Conference.\\n\\n 10\\n\\f 18-11023\\n\\n\\nfiling the motion to strike at issue here, Officer Mitchell’s counsel emailed\\nValderas’s counsel, explained the motion, and asked Valderas’s counsel if\\nValderas opposed the motion. Valderas’s counsel expressed confusion about\\ncertain aspects of the motion, insisted that a telephone conference was\\nrequired under the local rules, and stated that he could not “advise [his] client\\nand gain approval to oppose or not oppose your motion” without such a\\ntelephone conference. Officer Mitchell’s counsel replied with additional details\\nabout the motion and explained that she did not believe that a telephone\\nconference was necessary. Valderas’s counsel responded by again insisting\\nthat a telephone conference was “more appropriate.”\\n Officer Mitchell’s counsel did not respond. Instead, Officer Mitchell filed\\nthe motion with the district court. The motion contained a certificate noting\\nthe email exchange and explaining that Officer Mitchell was unsure if\\nValderas opposed the motion. Valderas subsequently opposed the motion\\nsolely by arguing that it violated the local rule. The district court granted the\\nmotion after summarily noting that it was “meritorious.”\\n Valderas cites to only one decision explicating the meaning of the local\\nrule in question and implies that the decision establishes that a telephone\\nconversation is necessary to satisfy the conference requirement. The decision\\n\\n\\n 1. Each motion for which a conference is required must include\\n a certificate of conference indicating that the motion is\\n unopposed or opposed.\\n 2. If a motion is opposed, the certificate must state that a\\n conference was held, indicate the date of conference and the\\n identities of the attorneys conferring, and explain why\\n agreement could not be reached.\\n 3. If a conference was not held, the certificate must explain why\\n it was not possible to confer, in which event the motion will be\\n presumed to be opposed.\\n\\n 11\\n\\f 18-11023\\n\\n\\nexplicitly notes, however, that the conference requirement can be met through\\na written conferral. See Dondi Props. Corp. v. Commerce Sav. & Loan Ass’n,\\n121 F.R.D. 284, 290 (N.D. Tex. 1988) (en banc) (per curiam). Valderas has\\nprovided no authority to suggest that Officer Mitchell’s counsel did anything\\nimproper by declining to confer over the telephone. To the point, we see no\\nbasis for finding that the district court abused its discretion by accepting\\nOfficer Mitchell’s motion to strike. 12\\n VII.\\n Accordingly, we hold that Officer Mitchell did not violate Valderas’s\\nFourth Amendment rights when he used deadly force against Valderas. We\\nfurther hold that the district court did not abuse its discretion by granting\\nOfficer Mitchell’s motion to strike. The judgment of the district court is thus\\n AFFIRMED.\\n\\n\\n\\n\\n 12 Even if we considered the evidence that the district court excluded, however, our\\nqualified immunity determination would remain the same.\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3697,"cells":{"id":{"kind":"number","value":4656194,"string":"4,656,194"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Double Eagle Energy Services v. MarkWest Utica EMG"},"decision_date":{"kind":"string","value":"2019-08-26"},"docket_number":{"kind":"string","value":"19-30207"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WIENER, HAYNES, and COSTA, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GREGG COSTA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 19-30207 Document: 00515092170 Page: 1 Date Filed: 08/26/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 19-30207 FILED\\n August 26, 2019\\n Summary Calendar\\n Lyle W. Cayce\\n Clerk\\nDOUBLE EAGLE ENERGY SERVICES, L.L.C.,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nMARKWEST UTICA EMG, L.L.C.; OHIO GATHERING COMPANY, L.L.C.,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Louisiana\\n\\n\\nBefore WIENER, HAYNES, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n The time-of-filing rule—that subject matter jurisdiction is determined\\nwhen a federal court’s jurisdiction is first invoked—is “hornbook law.” Grupo\\nDataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004). This appeal\\nrequires us to consider the rule outside the ordinary diversity or federal\\nquestion case. It asks what happens if a lawsuit, when filed, is related to a\\nbankruptcy, but then something happens that dissolves the bankruptcy\\nconnection.\\n After it filed for Chapter 11 bankruptcy, Double Eagle Energy Services\\nsued MarkWest and Ohio Gathering on a contract claim in Louisiana federal\\n\\f Case: 19-30207 Document: 00515092170 Page: 2 Date Filed: 08/26/2019\\n\\n\\n\\n No. 19-30207\\ncourt. Because the debtor’s contract suit was a “civil proceeding[] . . . related\\nto” a bankruptcy, the district court had subject matter jurisdiction. 28 U.S.C.\\n§ 1334(b); see also Wood v. Wood, 825 F.2d 90, 93 (5th Cir. 1987) (holding that\\nsection 1334(b) requires only that the claim conceivably affect the bankruptcy\\nestate).\\n But then Double Eagle assigned its claim against Defendants to one of\\nits creditors. Defendants seized on the apparent divestment of any connection\\nbetween Double Eagle’s claim and the bankruptcy estate. They argued in\\nsupport of a motion to dismiss that (1) the assignment destroyed subject matter\\njurisdiction under section 1334(b), and (2) that meant the Louisiana federal\\ncourt also lacked personal jurisdiction over Defendants. The magistrate judge\\nagreed on both counts, and the district court adopted the magistrate’s\\nrecommendation over Double Eagle’s objection.\\n We address subject matter jurisdiction first. The district court erred by\\nfailing to apply the time-of-filing rule to section 1334(b). “It has long been the\\ncase that ‘the jurisdiction of the court depends upon the state of things at the\\ntime of the action brought.’” Grupo Dataflux, 541 U.S. at 570 (quoting Mollan\\nv. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824)). 1 That longstanding rule\\npromotes efficiency; it would be “wasteful” if post-filing changes in “the facts\\n\\n\\n\\n 1 Defendants argue that Double Eagle forfeited the time-of-filing rule by raising it first\\nin its objection to the magistrate’s report. We disagree for a number of reasons. Double Eagle\\nasserted section 1334(b) jurisdiction in its complaint, then defended it—albeit against an\\nassault going to abstention under section 1334(c)(1), not the post-filing divestment of a\\nconnection to the bankruptcy case—in its response to the motion to dismiss. That was enough\\nto put the time-of-filing rule before the magistrate judge because that rule is a bedrock\\nprinciple of subject matter jurisdiction. See Grupo Dataflux, 541 U.S. at 570–71 (“This time-\\nof-filing rule is hornbook law (quite literally) taught to first-year law students in any basic\\ncourse on federal civil procedure.” (footnote omitted)); GlobeRanger Corp. v. Software AG\\nU.S.A., Inc., 836 F.3d 477, 488 (5th Cir. 2016) (discussing this “basic principle[] of federal\\njurisdiction”). What is more, the district court did not conclude that Double Eagle had failed\\nto raise the time-of-filing rule; it instead agreed with the magistrate judge’s jurisdictional\\nanalysis on the merits.\\n 2\\n\\f Case: 19-30207 Document: 00515092170 Page: 3 Date Filed: 08/26/2019\\n\\n\\n\\n No. 19-30207\\ndetermining jurisdiction” required dismissal of a case to which the parties and\\ncourt had already devoted resources. Id. at 580. Although courts have not\\noften considered the time-of-filing rule for cases related to bankruptcy, it\\napplies to bankruptcy jurisdiction no less than it applies to diversity or federal\\nquestion jurisdiction. In re Canion, 196 F.3d 579, 586 n.29 (5th Cir. 1999); see\\nalso In re Celotex Corp., 124 F.3d 619, 626 (4th Cir. 1997); In re Worldcom, Inc.\\nSec. Litig., 294 B.R. 553, 556 (S.D.N.Y. 2003). Indeed, even the closing of a\\nbankruptcy case does not divest federal courts of section 1334(b) jurisdiction\\nover cases that, when filed, were related to the bankruptcy (though, as\\ndiscussed below, such circumstances strongly favor discretionary dismissal).\\nIn re Querner, 7 F.3d 1199, 1201 (5th Cir. 1993); In re Porges, 44 F.3d 159, 162\\n(2d Cir. 1995). This means that the related-to-bankruptcy jurisdiction that\\nexisted at the outset of this case never went away.\\n Failing to focus on the time of filing also infected the district court’s\\npersonal jurisdiction analysis. Personal jurisdiction requires two things:\\nauthorization for service of summons and a “constitutionally sufficient\\nrelationship” (the “minimum contacts” test) between the defendant and the\\nforum. Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104\\n(1987). If this were an ordinary contract claim in federal court on diversity\\njurisdiction, the only authority to serve a defendant would come from Federal\\nRule of Civil Procedure 4, which requires that the defendant be subject to\\npersonal jurisdiction in Louisiana’s courts. See FED. R. CIV. P. 4(k)(1)(a).\\nFourteenth Amendment due process—made pertinent by the reference to the\\nreach of a state’s courts—requires, in turn, that the defendant have sufficient\\ncontacts with Louisiana. 4A CHARLES ALAN WRIGHT ET AL., FED. PRAC. &\\nPROC. § 1069, at 122–24 (4th ed. 2015). The district court determined that the\\nDefendants’ contacts with Louisiana were lacking.\\n\\n\\n 3\\n\\f Case: 19-30207 Document: 00515092170 Page: 4 Date Filed: 08/26/2019\\n\\n\\n\\n No. 19-30207\\n But as we have explained, Double Eagle’s suit remains one under the\\nbankruptcy court’s section 1334(b) jurisdiction. That means that Double Eagle\\nhad another route for service of summons: Bankruptcy Rule 7004. See Celotex,\\n124 F.3d at 629–30; Diamond Mortg. Corp. of Ill. v. Sugar, 913 F.2d 1233, 1242\\n(7th Cir. 1990). Unlike Rule 4, Bankruptcy Rule 7004 permits nationwide\\nservice of process without limitation to the reach of the forum state’s courts.\\nFED. R. BANKR. P. 7004(d). There remains the requirement of a\\n“constitutionally sufficient relationship” with the forum. Omni Capital, 484\\nU.S. at 104. With nationwide service, the forum is the United States. So\\nminimum contacts with the United States (Fifth Amendment due process)\\nsuffice; minimum contacts with a particular state (Fourteenth Amendment due\\nprocess) are beside the point. Busch v. Buchman, Buchman & O’Brien, Law\\nFirm, 11 F.3d 1255, 1258 (5th Cir. 1994); 17 CHARLES ALAN WRIGHT ET. AL.,\\nFED. PRAC. & PROC. § 4106, at 594–95 (3d ed. 2007). And residents of the\\nUnited States—which Defendants undisputedly are—have enough contact\\nwith the United States that haling them into federal court “does not offend\\ntraditional notions of fair play and substantial justice.” Busch, 11 F.3d at 1258;\\nsee also, e.g., Luallen v. Higgs, 277 F. App’x 402, 404–05 (5th Cir. 2008)\\n(holding that Nevada residency satisfied Fifth Amendment due process for\\npersonal jurisdiction by federal court in Texas).\\n The section 1334(b) jurisdiction that existed when this case was filed\\nthus means there is both subject matter and personal jurisdiction.\\n Even with that jurisdiction, Defendants contend there are alternative\\ngrounds to affirm the dismissal. The first is that although dismissal of a\\nbankruptcy case does not withdraw a federal court’s section 1334(b) “related\\nto” jurisdiction, the “general rule” is that the district court “should” exercise its\\ndiscretion to dismiss in this situation. Querner, 7 F.3d at 1201. That decision\\nis committed to “the sound discretion” of the federal court. Id. at 1202. Our\\n 4\\n\\f Case: 19-30207 Document: 00515092170 Page: 5 Date Filed: 08/26/2019\\n\\n\\n\\n No. 19-30207\\nordinary practice for discretionary decisions is remanding to “allow the district\\ncourt to exercise [its discretion] in the first instance.” Al Rushaid v. Nat’l\\nOilwell Varco, Inc., 757 F.3d 416, 424–25 (5th Cir. 2014) (quotation omitted).\\nThat makes sense here.\\n Defendants also point to a forum selection clause in their contract with\\nDouble Eagle, arguing that the clause warrants dismissal for improper venue.\\nBut assuming the forum selection clause is enforceable, 2 it places proper venue\\nin Ohio state or federal courts. That means that while the clause may support\\na transfer to a federal court in Ohio, it cannot support the district court’s\\ndismissal. Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for the W. Dist. of\\nTex., 571 U.S. 49, 59–60 (2013). The possibility of a venue transfer to Ohio\\nfederal court is another issue we will remand for the district court to consider\\nin the first instance.\\n * * *\\n We VACATE the district court’s judgment and REMAND for further\\nproceedings consistent with this opinion.\\n\\n\\n\\n\\n 2 Were this a “core” bankruptcy proceeding, there would be a public-policy interest\\nagainst enforcement of the forum selection clause. In re Spillman Dev. Grp., Ltd., 710 F.3d\\n299, 306 (5th Cir. 2013). That interest may be weaker in this “noncore” proceeding. See 1\\nALAN J. RESNICK ET AL., COLLIER ON BANKRUPTCY ¶ 3.02, at 3-36 (16th ed. 2019) (explaining\\nthat a “cause of action owned by the debtor at the time the title 11 case was filed” is “by\\ndefinition . . . a ‘related matter’ not a core proceeding” (footnote omitted)); In re Exide Techs.,\\n544 F.3d 196, 218 n.15 (3d Cir. 2008) (stating that forum selection clauses should be enforced\\nfor noncore proceedings if they would be enforced outside of bankruptcy). We need not decide\\nthis question because we remand the forum-selection-clause issue.\\n 5\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4433447/\", \"author_raw\": \"GREGG COSTA, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WIENER"},"judge2":{"kind":"string","value":"HAYNES"},"judge3":{"kind":"string","value":"COSTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WIENER\": \", Circuit\", \"HAYNES\": \", Circuit\", \"COSTA\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4656194/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Double Eagle Energy Services v. MarkWest Utica EMG\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 19-30207 Document: 00515092170 Page: 1 Date Filed: 08/26/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n\n No. 19-30207 FILED\n August 26, 2019\n Summary Calendar\n Lyle W. Cayce\n Clerk\nDOUBLE EAGLE ENERGY SERVICES, L.L.C.,\n\n Plaintiff - Appellant\n\nv.\n\nMARKWEST UTICA EMG, L.L.C.; OHIO GATHERING COMPANY, L.L.C.,\n\n Defendants - Appellees\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Louisiana\n\n\nBefore WIENER, HAYNES, and COSTA, Circuit Judges.\nGREGG COSTA, Circuit Judge:\n The time-of-filing rule—that subject matter jurisdiction is determined\nwhen a federal court’s jurisdiction is first invoked—is “hornbook law.” Grupo\nDataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004). This appeal\nrequires us to consider the rule outside the ordinary diversity or federal\nquestion case. It asks what happens if a lawsuit, when filed, is related to a\nbankruptcy, but then something happens that dissolves the bankruptcy\nconnection.\n After it filed for Chapter 11 bankruptcy, Double Eagle Energy Services\nsued MarkWest and Ohio Gathering on a contract claim in Louisiana federal\n\f Case: 19-30207 Document: 00515092170 Page: 2 Date Filed: 08/26/2019\n\n\n\n No. 19-30207\ncourt. Because the debtor’s contract suit was a “civil proceeding[] . . . related\nto” a bankruptcy, the district court had subject matter jurisdiction. 28 U.S.C.\n§ 1334(b); see also Wood v. Wood, 825 F.2d 90, 93 (5th Cir. 1987) (holding that\nsection 1334(b) requires only that the claim conceivably affect the bankruptcy\nestate).\n But then Double Eagle assigned its claim against Defendants to one of\nits creditors. Defendants seized on the apparent divestment of any connection\nbetween Double Eagle’s claim and the bankruptcy estate. They argued in\nsupport of a motion to dismiss that (1) the assignment destroyed subject matter\njurisdiction under section 1334(b), and (2) that meant the Louisiana federal\ncourt also lacked personal jurisdiction over Defendants. The magistrate judge\nagreed on both counts, and the district court adopted the magistrate’s\nrecommendation over Double Eagle’s objection.\n We address subject matter jurisdiction first. The district court erred by\nfailing to apply the time-of-filing rule to section 1334(b). “It has long been the\ncase that ‘the jurisdiction of the court depends upon the state of things at the\ntime of the action brought.’” Grupo Dataflux, 541 U.S. at 570 (quoting Mollan\nv. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824)). 1 That longstanding rule\npromotes efficiency; it would be “wasteful” if post-filing changes in “the facts\n\n\n\n 1 Defendants argue that Double Eagle forfeited the time-of-filing rule by raising it first\nin its objection to the magistrate’s report. We disagree for a number of reasons. Double Eagle\nasserted section 1334(b) jurisdiction in its complaint, then defended it—albeit against an\nassault going to abstention under section 1334(c)(1), not the post-filing divestment of a\nconnection to the bankruptcy case—in its response to the motion to dismiss. That was enough\nto put the time-of-filing rule before the magistrate judge because that rule is a bedrock\nprinciple of subject matter jurisdiction. See Grupo Dataflux, 541 U.S. at 570–71 (“This time-\nof-filing rule is hornbook law (quite literally) taught to first-year law students in any basic\ncourse on federal civil procedure.” (footnote omitted)); GlobeRanger Corp. v. Software AG\nU.S.A., Inc., 836 F.3d 477, 488 (5th Cir. 2016) (discussing this “basic principle[] of federal\njurisdiction”). What is more, the district court did not conclude that Double Eagle had failed\nto raise the time-of-filing rule; it instead agreed with the magistrate judge’s jurisdictional\nanalysis on the merits.\n 2\n\f Case: 19-30207 Document: 00515092170 Page: 3 Date Filed: 08/26/2019\n\n\n\n No. 19-30207\ndetermining jurisdiction” required dismissal of a case to which the parties and\ncourt had already devoted resources. Id. at 580. Although courts have not\noften considered the time-of-filing rule for cases related to bankruptcy, it\napplies to bankruptcy jurisdiction no less than it applies to diversity or federal\nquestion jurisdiction. In re Canion, 196 F.3d 579, 586 n.29 (5th Cir. 1999); see\nalso In re Celotex Corp., 124 F.3d 619, 626 (4th Cir. 1997); In re Worldcom, Inc.\nSec. Litig., 294 B.R. 553, 556 (S.D.N.Y. 2003). Indeed, even the closing of a\nbankruptcy case does not divest federal courts of section 1334(b) jurisdiction\nover cases that, when filed, were related to the bankruptcy (though, as\ndiscussed below, such circumstances strongly favor discretionary dismissal).\nIn re Querner, 7 F.3d 1199, 1201 (5th Cir. 1993); In re Porges, 44 F.3d 159, 162\n(2d Cir. 1995). This means that the related-to-bankruptcy jurisdiction that\nexisted at the outset of this case never went away.\n Failing to focus on the time of filing also infected the district court’s\npersonal jurisdiction analysis. Personal jurisdiction requires two things:\nauthorization for service of summons and a “constitutionally sufficient\nrelationship” (the “minimum contacts” test) between the defendant and the\nforum. Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104\n(1987). If this were an ordinary contract claim in federal court on diversity\njurisdiction, the only authority to serve a defendant would come from Federal\nRule of Civil Procedure 4, which requires that the defendant be subject to\npersonal jurisdiction in Louisiana’s courts. See FED. R. CIV. P. 4(k)(1)(a).\nFourteenth Amendment due process—made pertinent by the reference to the\nreach of a state’s courts—requires, in turn, that the defendant have sufficient\ncontacts with Louisiana. 4A CHARLES ALAN WRIGHT ET AL., FED. PRAC. &\nPROC. § 1069, at 122–24 (4th ed. 2015). The district court determined that the\nDefendants’ contacts with Louisiana were lacking.\n\n\n 3\n\f Case: 19-30207 Document: 00515092170 Page: 4 Date Filed: 08/26/2019\n\n\n\n No. 19-30207\n But as we have explained, Double Eagle’s suit remains one under the\nbankruptcy court’s section 1334(b) jurisdiction. That means that Double Eagle\nhad another route for service of summons: Bankruptcy Rule 7004. See Celotex,\n124 F.3d at 629–30; Diamond Mortg. Corp. of Ill. v. Sugar, 913 F.2d 1233, 1242\n(7th Cir. 1990). Unlike Rule 4, Bankruptcy Rule 7004 permits nationwide\nservice of process without limitation to the reach of the forum state’s courts.\nFED. R. BANKR. P. 7004(d). There remains the requirement of a\n“constitutionally sufficient relationship” with the forum. Omni Capital, 484\nU.S. at 104. With nationwide service, the forum is the United States. So\nminimum contacts with the United States (Fifth Amendment due process)\nsuffice; minimum contacts with a particular state (Fourteenth Amendment due\nprocess) are beside the point. Busch v. Buchman, Buchman & O’Brien, Law\nFirm, 11 F.3d 1255, 1258 (5th Cir. 1994); 17 CHARLES ALAN WRIGHT ET. AL.,\nFED. PRAC. & PROC. § 4106, at 594–95 (3d ed. 2007). And residents of the\nUnited States—which Defendants undisputedly are—have enough contact\nwith the United States that haling them into federal court “does not offend\ntraditional notions of fair play and substantial justice.” Busch, 11 F.3d at 1258;\nsee also, e.g., Luallen v. Higgs, 277 F. App’x 402, 404–05 (5th Cir. 2008)\n(holding that Nevada residency satisfied Fifth Amendment due process for\npersonal jurisdiction by federal court in Texas).\n The section 1334(b) jurisdiction that existed when this case was filed\nthus means there is both subject matter and personal jurisdiction.\n Even with that jurisdiction, Defendants contend there are alternative\ngrounds to affirm the dismissal. The first is that although dismissal of a\nbankruptcy case does not withdraw a federal court’s section 1334(b) “related\nto” jurisdiction, the “general rule” is that the district court “should” exercise its\ndiscretion to dismiss in this situation. Querner, 7 F.3d at 1201. That decision\nis committed to “the sound discretion” of the federal court. Id. at 1202. Our\n 4\n\f Case: 19-30207 Document: 00515092170 Page: 5 Date Filed: 08/26/2019\n\n\n\n No. 19-30207\nordinary practice for discretionary decisions is remanding to “allow the district\ncourt to exercise [its discretion] in the first instance.” Al Rushaid v. Nat’l\nOilwell Varco, Inc., 757 F.3d 416, 424–25 (5th Cir. 2014) (quotation omitted).\nThat makes sense here.\n Defendants also point to a forum selection clause in their contract with\nDouble Eagle, arguing that the clause warrants dismissal for improper venue.\nBut assuming the forum selection clause is enforceable, 2 it places proper venue\nin Ohio state or federal courts. That means that while the clause may support\na transfer to a federal court in Ohio, it cannot support the district court’s\ndismissal. Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for the W. Dist. of\nTex., 571 U.S. 49, 59–60 (2013). The possibility of a venue transfer to Ohio\nfederal court is another issue we will remand for the district court to consider\nin the first instance.\n * * *\n We VACATE the district court’s judgment and REMAND for further\nproceedings consistent with this opinion.\n\n\n\n\n 2 Were this a “core” bankruptcy proceeding, there would be a public-policy interest\nagainst enforcement of the forum selection clause. In re Spillman Dev. Grp., Ltd., 710 F.3d\n299, 306 (5th Cir. 2013). That interest may be weaker in this “noncore” proceeding. See 1\nALAN J. RESNICK ET AL., COLLIER ON BANKRUPTCY ¶ 3.02, at 3-36 (16th ed. 2019) (explaining\nthat a “cause of action owned by the debtor at the time the title 11 case was filed” is “by\ndefinition . . . a ‘related matter’ not a core proceeding” (footnote omitted)); In re Exide Techs.,\n544 F.3d 196, 218 n.15 (3d Cir. 2008) (stating that forum selection clauses should be enforced\nfor noncore proceedings if they would be enforced outside of bankruptcy). We need not decide\nthis question because we remand the forum-selection-clause issue.\n 5\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Double Eagle Energy Services v. MarkWest Utica EMG\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 19-30207 Document: 00515092170 Page: 1 Date Filed: 08/26/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n\\n No. 19-30207 FILED\\n August 26, 2019\\n Summary Calendar\\n Lyle W. Cayce\\n Clerk\\nDOUBLE EAGLE ENERGY SERVICES, L.L.C.,\\n\\n Plaintiff - Appellant\\n\\nv.\\n\\nMARKWEST UTICA EMG, L.L.C.; OHIO GATHERING COMPANY, L.L.C.,\\n\\n Defendants - Appellees\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Louisiana\\n\\n\\nBefore WIENER, HAYNES, and COSTA, Circuit Judges.\\nGREGG COSTA, Circuit Judge:\\n The time-of-filing rule—that subject matter jurisdiction is determined\\nwhen a federal court’s jurisdiction is first invoked—is “hornbook law.” Grupo\\nDataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570 (2004). This appeal\\nrequires us to consider the rule outside the ordinary diversity or federal\\nquestion case. It asks what happens if a lawsuit, when filed, is related to a\\nbankruptcy, but then something happens that dissolves the bankruptcy\\nconnection.\\n After it filed for Chapter 11 bankruptcy, Double Eagle Energy Services\\nsued MarkWest and Ohio Gathering on a contract claim in Louisiana federal\\n\\f Case: 19-30207 Document: 00515092170 Page: 2 Date Filed: 08/26/2019\\n\\n\\n\\n No. 19-30207\\ncourt. Because the debtor’s contract suit was a “civil proceeding[] . . . related\\nto” a bankruptcy, the district court had subject matter jurisdiction. 28 U.S.C.\\n§ 1334(b); see also Wood v. Wood, 825 F.2d 90, 93 (5th Cir. 1987) (holding that\\nsection 1334(b) requires only that the claim conceivably affect the bankruptcy\\nestate).\\n But then Double Eagle assigned its claim against Defendants to one of\\nits creditors. Defendants seized on the apparent divestment of any connection\\nbetween Double Eagle’s claim and the bankruptcy estate. They argued in\\nsupport of a motion to dismiss that (1) the assignment destroyed subject matter\\njurisdiction under section 1334(b), and (2) that meant the Louisiana federal\\ncourt also lacked personal jurisdiction over Defendants. The magistrate judge\\nagreed on both counts, and the district court adopted the magistrate’s\\nrecommendation over Double Eagle’s objection.\\n We address subject matter jurisdiction first. The district court erred by\\nfailing to apply the time-of-filing rule to section 1334(b). “It has long been the\\ncase that ‘the jurisdiction of the court depends upon the state of things at the\\ntime of the action brought.’” Grupo Dataflux, 541 U.S. at 570 (quoting Mollan\\nv. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824)). 1 That longstanding rule\\npromotes efficiency; it would be “wasteful” if post-filing changes in “the facts\\n\\n\\n\\n 1 Defendants argue that Double Eagle forfeited the time-of-filing rule by raising it first\\nin its objection to the magistrate’s report. We disagree for a number of reasons. Double Eagle\\nasserted section 1334(b) jurisdiction in its complaint, then defended it—albeit against an\\nassault going to abstention under section 1334(c)(1), not the post-filing divestment of a\\nconnection to the bankruptcy case—in its response to the motion to dismiss. That was enough\\nto put the time-of-filing rule before the magistrate judge because that rule is a bedrock\\nprinciple of subject matter jurisdiction. See Grupo Dataflux, 541 U.S. at 570–71 (“This time-\\nof-filing rule is hornbook law (quite literally) taught to first-year law students in any basic\\ncourse on federal civil procedure.” (footnote omitted)); GlobeRanger Corp. v. Software AG\\nU.S.A., Inc., 836 F.3d 477, 488 (5th Cir. 2016) (discussing this “basic principle[] of federal\\njurisdiction”). What is more, the district court did not conclude that Double Eagle had failed\\nto raise the time-of-filing rule; it instead agreed with the magistrate judge’s jurisdictional\\nanalysis on the merits.\\n 2\\n\\f Case: 19-30207 Document: 00515092170 Page: 3 Date Filed: 08/26/2019\\n\\n\\n\\n No. 19-30207\\ndetermining jurisdiction” required dismissal of a case to which the parties and\\ncourt had already devoted resources. Id. at 580. Although courts have not\\noften considered the time-of-filing rule for cases related to bankruptcy, it\\napplies to bankruptcy jurisdiction no less than it applies to diversity or federal\\nquestion jurisdiction. In re Canion, 196 F.3d 579, 586 n.29 (5th Cir. 1999); see\\nalso In re Celotex Corp., 124 F.3d 619, 626 (4th Cir. 1997); In re Worldcom, Inc.\\nSec. Litig., 294 B.R. 553, 556 (S.D.N.Y. 2003). Indeed, even the closing of a\\nbankruptcy case does not divest federal courts of section 1334(b) jurisdiction\\nover cases that, when filed, were related to the bankruptcy (though, as\\ndiscussed below, such circumstances strongly favor discretionary dismissal).\\nIn re Querner, 7 F.3d 1199, 1201 (5th Cir. 1993); In re Porges, 44 F.3d 159, 162\\n(2d Cir. 1995). This means that the related-to-bankruptcy jurisdiction that\\nexisted at the outset of this case never went away.\\n Failing to focus on the time of filing also infected the district court’s\\npersonal jurisdiction analysis. Personal jurisdiction requires two things:\\nauthorization for service of summons and a “constitutionally sufficient\\nrelationship” (the “minimum contacts” test) between the defendant and the\\nforum. Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104\\n(1987). If this were an ordinary contract claim in federal court on diversity\\njurisdiction, the only authority to serve a defendant would come from Federal\\nRule of Civil Procedure 4, which requires that the defendant be subject to\\npersonal jurisdiction in Louisiana’s courts. See FED. R. CIV. P. 4(k)(1)(a).\\nFourteenth Amendment due process—made pertinent by the reference to the\\nreach of a state’s courts—requires, in turn, that the defendant have sufficient\\ncontacts with Louisiana. 4A CHARLES ALAN WRIGHT ET AL., FED. PRAC. &\\nPROC. § 1069, at 122–24 (4th ed. 2015). The district court determined that the\\nDefendants’ contacts with Louisiana were lacking.\\n\\n\\n 3\\n\\f Case: 19-30207 Document: 00515092170 Page: 4 Date Filed: 08/26/2019\\n\\n\\n\\n No. 19-30207\\n But as we have explained, Double Eagle’s suit remains one under the\\nbankruptcy court’s section 1334(b) jurisdiction. That means that Double Eagle\\nhad another route for service of summons: Bankruptcy Rule 7004. See Celotex,\\n124 F.3d at 629–30; Diamond Mortg. Corp. of Ill. v. Sugar, 913 F.2d 1233, 1242\\n(7th Cir. 1990). Unlike Rule 4, Bankruptcy Rule 7004 permits nationwide\\nservice of process without limitation to the reach of the forum state’s courts.\\nFED. R. BANKR. P. 7004(d). There remains the requirement of a\\n“constitutionally sufficient relationship” with the forum. Omni Capital, 484\\nU.S. at 104. With nationwide service, the forum is the United States. So\\nminimum contacts with the United States (Fifth Amendment due process)\\nsuffice; minimum contacts with a particular state (Fourteenth Amendment due\\nprocess) are beside the point. Busch v. Buchman, Buchman & O’Brien, Law\\nFirm, 11 F.3d 1255, 1258 (5th Cir. 1994); 17 CHARLES ALAN WRIGHT ET. AL.,\\nFED. PRAC. & PROC. § 4106, at 594–95 (3d ed. 2007). And residents of the\\nUnited States—which Defendants undisputedly are—have enough contact\\nwith the United States that haling them into federal court “does not offend\\ntraditional notions of fair play and substantial justice.” Busch, 11 F.3d at 1258;\\nsee also, e.g., Luallen v. Higgs, 277 F. App’x 402, 404–05 (5th Cir. 2008)\\n(holding that Nevada residency satisfied Fifth Amendment due process for\\npersonal jurisdiction by federal court in Texas).\\n The section 1334(b) jurisdiction that existed when this case was filed\\nthus means there is both subject matter and personal jurisdiction.\\n Even with that jurisdiction, Defendants contend there are alternative\\ngrounds to affirm the dismissal. The first is that although dismissal of a\\nbankruptcy case does not withdraw a federal court’s section 1334(b) “related\\nto” jurisdiction, the “general rule” is that the district court “should” exercise its\\ndiscretion to dismiss in this situation. Querner, 7 F.3d at 1201. That decision\\nis committed to “the sound discretion” of the federal court. Id. at 1202. Our\\n 4\\n\\f Case: 19-30207 Document: 00515092170 Page: 5 Date Filed: 08/26/2019\\n\\n\\n\\n No. 19-30207\\nordinary practice for discretionary decisions is remanding to “allow the district\\ncourt to exercise [its discretion] in the first instance.” Al Rushaid v. Nat’l\\nOilwell Varco, Inc., 757 F.3d 416, 424–25 (5th Cir. 2014) (quotation omitted).\\nThat makes sense here.\\n Defendants also point to a forum selection clause in their contract with\\nDouble Eagle, arguing that the clause warrants dismissal for improper venue.\\nBut assuming the forum selection clause is enforceable, 2 it places proper venue\\nin Ohio state or federal courts. That means that while the clause may support\\na transfer to a federal court in Ohio, it cannot support the district court’s\\ndismissal. Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for the W. Dist. of\\nTex., 571 U.S. 49, 59–60 (2013). The possibility of a venue transfer to Ohio\\nfederal court is another issue we will remand for the district court to consider\\nin the first instance.\\n * * *\\n We VACATE the district court’s judgment and REMAND for further\\nproceedings consistent with this opinion.\\n\\n\\n\\n\\n 2 Were this a “core” bankruptcy proceeding, there would be a public-policy interest\\nagainst enforcement of the forum selection clause. In re Spillman Dev. Grp., Ltd., 710 F.3d\\n299, 306 (5th Cir. 2013). That interest may be weaker in this “noncore” proceeding. See 1\\nALAN J. RESNICK ET AL., COLLIER ON BANKRUPTCY ¶ 3.02, at 3-36 (16th ed. 2019) (explaining\\nthat a “cause of action owned by the debtor at the time the title 11 case was filed” is “by\\ndefinition . . . a ‘related matter’ not a core proceeding” (footnote omitted)); In re Exide Techs.,\\n544 F.3d 196, 218 n.15 (3d Cir. 2008) (stating that forum selection clauses should be enforced\\nfor noncore proceedings if they would be enforced outside of bankruptcy). We need not decide\\nthis question because we remand the forum-selection-clause issue.\\n 5\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3698,"cells":{"id":{"kind":"number","value":4656195,"string":"4,656,195"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Billy Crutsinger v. Lorie Davis, Director"},"decision_date":{"kind":"string","value":"2019-08-26"},"docket_number":{"kind":"string","value":"19-70012"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before SMITH, OWEN, and GRAVES, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JERRY E. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 19-70012 Document: 00515092419 Page: 1 Date Filed: 08/26/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 19-70012 August 26, 2019\\n Lyle W. Cayce\\n Clerk\\n\\n\\nBILLY JACK CRUTSINGER,\\n\\n Petitioner–Appellant,\\n\\nversus\\n\\nLORIE DAVIS, Director,\\nTexas Department of Criminal Justice, Correctional Institutions Division,\\n\\n Respondent–Appellee.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n\\n\\nBefore SMITH, OWEN, and GRAVES, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Billy Crutsinger moves for a Certificate of Appealability (“COA”) to\\nappeal whether, under Federal Rule of Civil Procedure 60(b)(6), extraordinary\\ncircumstances require us to reopen the final judgment and grant funding for\\nrepresentation services. He also moves for a stay of execution. Because Crut-\\nsinger fails to show that reasonable jurists would debate whether the district\\n\\n Case: 19-70012 Document: 00515092419 Page: 2 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\ncourt abused its discretion in denying his motion, we deny a COA. Moreover,\\nbecause Crutsinger does not establish that the circumstances justify the exer-\\ncise of our equitable discretion, we deny the motion for a stay.\\n\\n I.\\n In 2003, Billy Jack Crutsinger murdered eighty-nine-year-old Pearl\\nMagouirk and her seventy-one-year-old daughter, Patricia Syren. Crutsinger\\nv. Davis (Crutsinger III), 929 F.3d 259, 261 (5th Cir. 2019). He was convicted\\nof capital murder and sentenced to death, id., and is scheduled to be executed\\non September 4, 2019.\\n\\n Last month, we remanded for consideration of Crutsinger’s Rule 60(b)(6)\\nmotion, id. at 266, then denied his motion for a stay of execution, Crutsinger v.\\nDavis (Crutsinger IV), 930 F.3d 705, 706–09 (5th Cir. 2019) (per curiam). In a\\nthorough and well-reasoned opinion, the district court denied Crutsinger’s\\nRule 60(b) motion, his 18 U.S.C. § 3599(f) funding request, and his request for\\na COA. Crutsinger v. Davis (Crutsinger V), No. 4:07-CV-00703-Y, 2019 WL\\n3749530, at *1–9 (N.D. Tex. Aug. 8, 2019).\\n\\n II.\\n A.\\n As a jurisdictional prerequisite, a habeas petitioner must obtain a COA\\nbefore we may consider his appeal. 1 A COA is required to appeal the denial of\\na Rule 60(b) motion. Buck v. Davis, 137 S. Ct. 759, 777 (2017). Issuance of a\\nCOA requires the petitioner to make “a substantial showing of the denial of a\\nconstitutional right.” 28 U.S.C. § 2253(c). Ultimately, the central question is\\n“whether a reasonable jurist could conclude that the District Court abused its\\n\\n\\n\\n 1 Raby v. Davis, 907 F.3d 880, 883 (5th Cir. 2018); accord Miller-El v. Cockrell,\\n537 U.S. 322, 335–36 (2003); see also 28 U.S.C. § 2253(c).\\n 2\\n\\n Case: 19-70012 Document: 00515092419 Page: 3 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\ndiscretion in declining to reopen the judgment.” 2\\n\\n Federal Rule of Civil Procedure 60(b)(6) permits relief from a judgment\\nor order for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6). To\\nprevail on a Rule 60(b)(6) motion in the habeas context, a movant must\\n(1) make the motion within a reasonable time, FED. R. CIV. P. 60(c), and\\n(2) establish that extraordinary circumstances justify the reopening of the final\\njudgment, Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Such extraordinary\\ncircumstances “will rarely occur in the habeas context.” Id. “A change in deci-\\nsional law after entry of judgment does not constitute extraordinary circum-\\nstances and is not alone grounds for relief from a final judgment.” 3\\n\\n B.\\n Crutsinger maintains that he is entitled to relief under Rule 60(b)\\nbecause recent changes in decisional law, including Ayestas v. Davis, 138 S. Ct.\\n1080 (2018), Trevino v. Thaler, 569 U.S. 413 (2013), and Martinez v. Ryan, 566\\nU.S. 1 (2012), coupled with seven additional factors, 4 constitute extraordinary\\n\\n\\n 2 Buck, 137 S. Ct. at 777; accord Miller-El, 537 U.S. at 336 (“[A] petitioner must show\\nthat reasonable jurists could debate whether . . . the petition should have been resolved in a\\ndifferent manner or that the issues presented were adequate to deserve encouragement to\\nproceed further.” (internal quotation marks, alteration, and citations omitted)).\\n 3Raby, 907 F.3d at 884 (internal quotation marks, alteration, and citations omitted);\\naccord Adams v. Thaler, 679 F.3d 312, 319–20 (5th Cir. 2012); Hernandez v. Thaler, 630 F.3d\\n420, 430 (5th Cir. 2011); Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990).\\n 4 Those factors include (1) “[t]he nature of the proceedings as habeas corpus, in which\\ntraditional res-judicata rules have never applied, and the careful adjudication of which the\\nSupreme Court has called the highest duty of a federal court,” Crutsinger V, 2019 WL\\n3749530, at *2; (2) “[t]he nature of the case as a capital case,” id.; (3) “[t]he nature of the\\nalleged defect as a deprivation of guaranteed representation, which is structural in nature\\nand undermines public confidence in the judicial process,” id.; (4) “[t]he nature of the alleged\\ndefect, which operated to preclude hearing the true merits of the case because it thwarted\\nCrutsinger’s ability ‘even to discover and allege material facts in support of claims he sought\\nto pursue in good faith,’” id.; (5) “[t]he fact that the Supreme Court specifically mentioned\\nthis case in Ayestas,” id.; (6) “[t]he facts underlying the claims affected by the alleged defect\\nare egregious, including that petitioner’s trial counsel went to trial only five months after\\nbeing appointed in a capital case and state habeas counsel effectively abandoned him,” id.;\\n 3\\n\\n Case: 19-70012 Document: 00515092419 Page: 4 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\ncircumstances. Crutsinger underscores that “[r]easonable jurists could . . .\\ndebate whether . . . the ruling of the district court denying [Rule] 60(b) relief\\nand funding should have been resolved in a different manner or that the issues\\npresented were adequate to deserve encouragement to proceed further.”\\n\\n In support of this, Crutsinger cites the dissent from our recent decision 5\\nand claims that the district court incorrectly analyzed the seven additional\\nfactors he raised. He contends—contrary to Crutsinger IV, 930 F.3d at 707 &\\nn.1—that Diaz v. Stephens, 731 F.3d 370, 376 (5th Cir. 2013), and Adams,\\n679 F.3d at 319–20, do not bar relief under Rule 60(b). Crutsinger essentially\\nmaintains that Adams and Diaz were wrongly decided because Martinez was\\nan equitable ruling as distinguished from a constitutional one.\\n\\n Crutsinger next recites the Ayestas standard for funding under § 3599(f),\\nasserting that “[t]he district court’s record-bound, merits-review conflicts with\\nAyestas in how funding determinations are assessed.” He contends that he has\\ndoggedly pursued his § 3599(f) right to funding over the last decade and that\\nhis funding request is not frivolous. Crutsinger further emphasizes that the\\nextraordinary circumstances underlying his Rule 60(b) motion do not include\\nmerely the changes in decisional law and his diligent pursuit of § 3599(f) fund-\\ning. He posits that the risk this case will undermine public confidence in the\\njudicial process also supports his claim of extraordinary circumstances.\\n\\n Lastly, Crutsinger stresses that “Gonzalez did not announce any rule\\nthat a change in law cannot constitute an extraordinary circumstance warrant-\\ning relief from the judgment.” In Gonzalez, 545 U.S. at 536, the Court\\n\\n\\n\\nand (7) the fact that “Crutsinger has exercised extraordinary diligence in pursuing his repre-\\nsentation rights,” id.\\n 5 Crutsinger III, 929 F.3d at 266 (Graves, J., dissenting) (“Because I conclude that\\nBilly Jack Crutsinger’s motion under Federal Rule of Civil Procedure 60(b)(6) should be\\ngranted, I would vacate and remand for proper consideration of his funding motion.”).\\n 4\\n\\n Case: 19-70012 Document: 00515092419 Page: 5 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nremarked that “not every interpretation of the federal statutes setting forth\\nthe requirements for habeas provides cause for reopening cases long since\\nfinal.” Importantly, Crutsinger asserts, this “does not mean that no erroneous\\ninterpretation does” (emphasis omitted). In contrast to the circumstances in\\nGonzalez, he asserts that he was “independently deprived . . . of a federally\\nguaranteed right” and that “[t]he deprivation of that right demands a remedy.”\\nConsequently, he contends that the totality of the circumstances warrants\\nrelief under Rule 60(b).\\n\\n In response, the state maintains that reasonable jurists would not debate\\nwhether the district court abused its discretion in declining to reopen because\\nGonzalez and circuit precedent, forecloses such relief. In Gonzalez, 545 U.S. at\\n536, the Court stated that “[i]t is hardly extraordinary that subsequently, after\\npetitioner’s case was no longer pending, this Court arrived at a different inter-\\npretation” of a federal statute. We reiterated this sentiment in both of our\\nrecent Crutsinger decisions. 6 The state further underscores that “[i]f a change\\nin law that entirely precluded merits review—as in Gonzalez—is not sufficient\\nto warrant Rule 60(b)(6) relief, then the change in the law . . . on a lesser\\nmatter—funding to possibly support a claim for relief—necessarily cannot\\nwarrant Rule 60(b)(6) relief.”\\n\\n Echoing our recent statements in Crutsinger IV, 930 F.3d at 707 & n.1,\\nthe state avers that “this [c]ourt’s precedent forecloses reliance on Martinez\\nand Trevino to achieve relief under Rule 60(b).” The state cites our recent pub-\\nlished decision in In re Johnson, Nos. 19-20552, 19-70013, 2019 WL 3814384,\\n\\n\\n\\n 6 Crutsinger IV, 930 F.3d at 707; Crutsinger III, 929 F.3d at 266 (“It would appear that\\nthe Supreme Court’s holding in Gonzalez that not every interpretation of the federal statutes\\nsetting forth the requirements for habeas provides cause for reopening cases long since final\\nis at least instructive, if not dispositive, of Crutsinger’s Rule 60(b) motion.” (internal quota-\\ntion marks and citation omitted)).\\n 5\\n\\n Case: 19-70012 Document: 00515092419 Page: 6 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nat *3 (5th Cir. Aug. 15, 2019), to buttress that contention. In Johnson, relying\\non Raby, 907 F.3d at 884, we reaffirmed that a claim of deficient representta-\\ntion, without more, is insufficient to obtain Rule 60(b) relief. Johnson, 2019\\nWL 3814384, at *3. Moreover, we emphasized there, as here, that the movant\\nfailed to offer “any authority that [§] 3599 has ever provided relief pursuant to\\nRule 60(b).” Id. at *4. Consequently, we denied a COA. 7\\n\\n Finally, the state contends that the other factors raised by Crutsinger\\nweigh against Rule 60(b) relief because they are not extraordinary. The state\\nnotes that Diaz and Haynes v. Davis, 733 F. App’x 766, 768–70 (5th Cir. 2018),\\nfound that changes in decisional law (specifically, Trevino and Martinez),\\ncoupled with various other “equities,” were not enough to establish extraordin-\\nary circumstances. In Diaz, 731 F.3d at 377), we emphasized that the peti-\\ntioner’s circumstances were “no more unique or extraordinary than any other\\ncapital inmate who defaulted claims in state court prior to Trevino.” (Citation\\nomitted.) So, too, with Crutsinger’s funding request after Ayestas.\\n\\n Moreover, in Haynes, 733 F. App’x at 770,we maintained that “finality is\\na particularly strong consideration in the habeas context.” The state empha-\\nsizes that here, as in Haynes, Crutsinger has been litigating his claims in\\nfederal court for more than a decade and has received multiple stages of review.\\nIn both cases, we found that Rule 60(b) relief was not warranted. See id.; Diaz,\\n731 F.3d at 379.\\n\\n Ultimately, the state contends, “Crutsinger cites no authority for the\\nproposition that a district court’s entirely discretionary denial of funding in\\n\\n\\n\\n 7 Id. The state also maintains that the district court’s thorough opinion explicitly\\naddressed the Crutsinger III dissent’s concerns—that the denial of funding risked undermin-\\ning the public’s confidence in the judicial process and producing an unjust result, Crut-\\nsinger III, 930 F.3d at 271 (Graves, J., dissenting)—by “discussing the prior merits review of\\nthe claim” and providing a proper review of Crutsinger’s funding request under Ayestas.\\n 6\\n\\n Case: 19-70012 Document: 00515092419 Page: 7 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nany way deprived him of his statutory right to representation.” Consequently,\\nbecause none of the other factors he cites establishes extraordinary circum-\\nstances, “he cannot show that reasonable jurists would debate the lower court’s\\ndenial of that motion.”\\n\\n C.\\n Crutsinger is not entitled to a COA because reasonable jurists would not\\ndebate whether the district court abused its discretion in denying his Rule\\n60(b) motion. A petitioner “seeking relief under Rule 60(b)(6) [must] show\\nextraordinary circumstances justifying the reopening of a final judgment.”\\nGonzalez, 545 U.S. at 535 (internal quotation marks and citation omitted).\\nThis is a strict standard, so extraordinary circumstances are rarely present in\\nthe habeas context. Id. Mere changes in decisional law, without more, do not\\nconstitute extraordinary circumstances. See id. at 536–37. “It is hardly extra-\\nordinary that subsequently, after petitioner’s case was no longer pending, this\\nCourt arrived at a different interpretation” of a federal statute. Id. at 536.\\nImportantly, the Court maintained, “not every interpretation of the federal\\nstatutes setting forth the requirements for habeas provides cause for reopening\\ncases long since final.” Id. Moreover, “if, as in Gonzalez, a change in law that\\nentirely precluded merits review is not sufficient to warrant Rule 60(b)(6)\\nrelief,” then (as is the case here) a change in law that did not preclude merits\\nreview does not merit such relief. Crutsinger IV, 930 F.3d at 707 (internal\\nquotation marks omitted).\\n\\n Circuit precedent also squarely forecloses Crutsinger’s claim. 8 We noted\\nas much in both of our recent decisions. Crutsinger IV, 930 F.3d at 707;\\n\\n\\n\\n 8 E.g., Johnson, 2019 WL 3814384, at *3; Raby, 907 F.3d at 884; Haynes, 733 F. App’x\\nat 768–70; Diaz, 731 F.3d at 375–76; Adams, 679 F.3d at 319–20; Hernandez, 630 F.3d at 430;\\nBailey, 894 F.2d at 160.\\n 7\\n\\n Case: 19-70012 Document: 00515092419 Page: 8 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nCrutsinger III, 929 F.3d at 266. This overwhelming precedent is effectively\\ndispositive of the matter. 9\\n\\n Crutsinger attempts to evade this precedent by claiming that the\\nchanges in decisional law, coupled with seven additional factors, constitute\\nextraordinary circumstances. The district court, however, rejected this theory,\\nengaging in an exhaustive review of the seven factors presented by Crutsinger.\\nCrutsinger V, 2019 WL 3749530, at *2–6. The court’s analysis is both helpful\\nand, more importantly, correct.\\n\\n Citing both Supreme Court and circuit precedent, the district court con-\\ncluded that the capital habeas nature of this case does not make its circum-\\nstances extraordinary. Id. at *2. The court also noted that, despite Crutsin-\\nger’s claims, the denial of funding was not structural error, making his circum-\\nstances all the more ordinary. See id. at *3.\\n\\n The district court engaged in an extensive review of the record to dem-\\nonstrate that Crutsinger’s representation at trial was not egregious and that\\nhe was not precluded from receiving a merits-based review of his federal\\nhabeas claims, including his claim of ineffective assistance of counsel (“IAC”).\\nId. at *3–6; see also Crutsinger v. Thaler (Crutsinger I), No. 4:07-CV-703-Y,\\n2012 WL 369927, at *4–13 (N.D. Tex. Feb. 6, 2012). As the court rightly em-\\nphasized, Crutsinger’s “assertions that the denial of funding precluded a true\\nmerits review and that trial counsel’s representation was egregious, border on\\nfrivolous.” Crutsinger V, 2019 WL 3749530, at *3. Neither of these factors\\nsupports his claim that extraordinary circumstances justify reopening.\\n\\n The district court concluded that Ayestas’s abrogation of Crutsinger v.\\nStephens (Crutsinger II), 576 F. App’x 422 (5th Cir. 2014), cert. denied,\\n\\n\\n 9 Moreover, here, as was true in Johnson, Crutsinger fails to offer “any authority that\\n[§] 3599 has ever provided relief pursuant to Rule 60(b).” 2019 WL 3814384, at *4.\\n 8\\n\\n Case: 19-70012 Document: 00515092419 Page: 9 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\n135 S. Ct. 1401 (2015), did not support a finding of extraordinary circum-\\nstances because Ayestas “emphasize[d] that there was no error in this case\\nbefore Trevino.” Crutsinger V, 2019 WL 3749530, at *6. Lastly, the court\\nconcluded, even “[a]ssuming Crutsinger has exhibited due diligence, he fails to\\nprovide authority that diligence plus a change in law are sufficient in death-\\npenalty cases to reopen a judgment under Rule 60(b)(6).” 10\\n\\n Ultimately, the changes in decisional law, even when viewed in conjunc-\\ntion with these additional factors, fail to establish extraordinary circumstances\\nwarranting relief from the judgment. Therefore, the district court did not\\nabuse its discretion in denying the Rule 60(b) motion. Because jurists of reason\\nwould not debate this conclusion, particularly in light of Supreme Court and\\nFifth Circuit precedent, Crutsinger is not entitled to a COA.\\n\\n III.\\n A.\\n As discussed in Crutsinger IV, 930 F.3d at 706, “a stay of execution is an\\nequitable remedy. It is not available as a matter of right, and equity must be\\nsensitive to the [s]tate’s strong interest in enforcing its criminal judgments\\nwithout undue interference from the federal courts.” 11 We evaluate four\\n\\n\\n\\n 10 Id. The district court went a step further: Acknowledging the Crutsinger III dis-\\nsent’s concerns, 929 F.3d at 266–71 (Graves, J., dissenting), the court reviewed Crutsinger’s\\n§ 3599(f) request under Ayestas. Crutsinger V, 2019 WL 3749530, at *6–9.\\n In Ayestas, 138 S. Ct. at 1094, the Court noted that “the ‘reasonably necessary’ test\\nrequires an assessment of the likely utility of the services requested, and § 3599(f) cannot be\\nread to guarantee that an applicant will have enough money to turn over every stone.”\\nTherefore, the district court stressed, proper application of the test required it to consider:\\n(1) “the potential merit of the claim that Crutsinger wants to pursue,” Crutsinger V, 2019 WL\\n3749530, at *7; (2) “the likelihood that the services will generate useful and admissible evi-\\ndence,” id.; and (3) “the prospect that Crutsinger will be able to clear any procedural hurdles\\nstanding in the way,” id. Finding that Crutsinger failed to meet that standard, the court\\ndenied funding. Id. at *9.\\n 11 Hill v. McDonough, 547 U.S. 573, 584 (2006); see also Sepulvado v. Jindal, 729 F.3d\\n 9\\n\\n Case: 19-70012 Document: 00515092419 Page: 10 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nfactors. 12 First, “whether the stay applicant has made a strong showing that\\nhe is likely to succeed on the merits.” Charles, 612 F. App’x at 218 n.7 (citation\\nomitted). Second, “whether the applicant will be irreparably injured absent a\\nstay.” Id. (citation omitted). Third, “whether issuance of the stay will substan-\\ntially injure the other parties interested in the proceeding.” Id. (citation omit-\\nted). And fourth, “the public interest.” Id. (citation omitted).\\n\\n “The first two factors of the traditional standard are the most critical. It\\nis not enough that the chance of success on the merits be better than negligi-\\nble.” Nken, 556 U.S. at 434 (internal quotation marks and citation omitted).\\n“Once an applicant satisfies the first two factors, the traditional stay inquiry\\ncalls for assessing the harm to the opposing party and weighing the public\\ninterest.” Id. at 435. “These factors merge when the [state] is the opposing\\nparty.” Id. “[C]ourts must be mindful that the [state’s] role as the respondent\\nin every . . . proceeding does not make the public interest in each individual\\none negligible.” Id.\\n\\n B.\\n Crutsinger asserts that we should grant a stay because he was forced “to\\nfile a habeas corpus application . . . without the provision of high-quality repre-\\nsentation guaranteed to him by 18 U.S.C. § 3599.” Citing Lonchar v. Thomas,\\n517 U.S. 314 (1996), Crutsinger avers that he cannot “be executed until the\\nmerits of his initial habeas corpus application have been meaningfully adjudi-\\ncated.” He notes that Barefoot v. Estelle, 463 U.S. 880 (1983), mandates “mean-\\ningful appellate review for any issue” on which we grant a COA.\\n\\n\\n\\n\\n413, 420 (5th Cir. 2013).\\n 12Murphy v. Collier, 919 F.3d 913, 915 (5th Cir. 2019) (per curiam); Charles v.\\nStephens, 612 F. App’x 214, 218 n.7 (5th Cir. 2015) (per curiam); see also Nken v. Holder,\\n556 U.S. 418, 425–26 (2009).\\n 10\\n\\n Case: 19-70012 Document: 00515092419 Page: 11 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\n As he did in his initial motion for a stay of execution, Crutsinger IV,\\n930 F.3d at 708, Crutsinger contends that he “may not be executed until he\\nhas been afforded the representation in federal collateral proceedings that he\\nis due under . . . § 3599.” Without an “appropriate post-conviction investiga-\\ntion,” he “remains exposed to the substantial risk that meritorious habeas\\ncorpus claims will never be heard.”\\n\\n C.\\n Despite his familiarity with our standard for a stay of execution, see\\nCrutsinger IV, 930 F.3d at 706–09, Crutsinger does not even attempt to engage\\nwith the four equitable factors. In any event, it is moot: As was the case in\\nCrutsinger IV, 930 F.3d at 706−07, he fails to establish a likelihood of success\\non the merits. That failure “is, effectively, dispositive of the motion for stay.”\\nId. at 707.\\n\\n Moreover, the arguments raised by Crutsinger, which essentially echo\\nthose he raised in Crutsinger IV, do not support granting a stay. Lonchar and\\nBarefoot stand for the unremarkable proposition that a petitioner may not be\\nexecuted before a court has reviewed the merits of his habeas petition. Lon-\\nchar, 517 U.S. at 319–20. Crutsinger received such a review more than seven\\nyears ago. Crutsinger I, 2012 WL 369927, at *4–13; see also Crutsinger II,\\n576 F. App’x at 425–31. As part of that review, he was given a full and fair\\nopportunity to litigate the merits of his habeas petition. Crutsinger V, 2019\\nWL 3749530, at *3–6. Any claim to contrary is baseless. Id. at *3. Moreover,\\nCrutsinger’s continued insistence that he is entitled to § 3599(f) funding is\\nfalse. Such funding is discretionary. 13\\n\\n Crutsinger’s reliance on McFarland v. Scott, 512 U.S. 849, 858 (1994),\\n\\n\\n 13 Ayestas, 138 S. Ct. at 1094 (“Congress has made it clear, however, that district\\ncourts have broad discretion in assessing requests for funding.”).\\n 11\\n\\n Case: 19-70012 Document: 00515092419 Page: 12 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nand Battaglia v. Stephens, 824 F.3d 470, 475 (5th Cir. 2016), is similarly\\nmisplaced. Those cases provide only that (1) a capital defendant must “have\\nsufficient time to request the appointment of counsel and file a formal habeas\\npetition prior to his scheduled execution,” McFarland, 512 U.S. at 858, and\\n(2) newly appointed counsel, if chosen for a defendant who effectively lacked\\nhabeas counsel, must be given time to develop a habeas claim for the appoint-\\nment to be meaningful, Battaglia, 824 F.3d at 475–76. “Crutsinger, however,\\nhas been well-represented by his counsel for approximately eleven years,” and\\nhe would not, as in McFarland or Battaglia, “be deprived of meaningful counsel\\nabsent a stay.” Crutsinger IV, 930 F.3d at 708. Lastly, “[e]ven if Crutsinger\\ncould establish a likelihood of success on the merits—which he cannot—the\\nother [equitable] factors weigh in favor of the state.” Id. at 709.\\n\\n We take seriously “a [s]tate’s strong interest in the timely enforcement\\nof valid judgments of its courts.” 14 “Equity must be sensitive to the [s]tate’s\\nstrong interest in enforcing its criminal judgments without undue interference\\nfrom the federal courts.” Crutsinger IV, 930 F.3d at 709 (citation omitted).\\nCrutsinger’s motion for a stay of execution is therefore denied.\\n\\n In summary, the motion for a COA and the motion for stay of execution\\nare DENIED.\\n\\n\\n\\n\\n 14Murphy v. Collier, 139 S. Ct. 1475, 1481 (2019) (Alito, J., dissenting); see also In re\\nBlodgett, 502 U.S. 236, 239 (1992) (per curiam).\\n 12\\n\\n Case: 19-70012 Document: 00515092419 Page: 13 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4433448/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge:\"}, {\"author\": \"JAMES E. GRAVES, JR., Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JAMES E. GRAVES, JR., Circuit Judge, dissenting:\\n I would grant the Certificate of Appealability and the motion for stay\\nessentially for reasons I have previously stated. See Crutsinger v. Davis, 929\\nF.3d 259, 266 (5th Cir. 2019); see also Crutsinger v. Davis, 930 F.3d 705 (5th\\nCir. 2019). Thus, I respectfully dissent.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4433448/\", \"author_raw\": \"JAMES E. GRAVES, JR., Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"OWEN"},"judge3":{"kind":"string","value":"GRAVES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"SMITH\": \", Circuit\", \"OWEN\": \", Circuit\", \"GRAVES\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4656195/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Billy Crutsinger v. Lorie Davis, Director\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-26\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 19-70012 Document: 00515092419 Page: 1 Date Filed: 08/26/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 19-70012 August 26, 2019\n Lyle W. Cayce\n Clerk\n\n\nBILLY JACK CRUTSINGER,\n\n Petitioner–Appellant,\n\nversus\n\nLORIE DAVIS, Director,\nTexas Department of Criminal Justice, Correctional Institutions Division,\n\n Respondent–Appellee.\n\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n\n\n\n\nBefore SMITH, OWEN, and GRAVES, Circuit Judges.\nJERRY E. SMITH, Circuit Judge:\n\n Billy Crutsinger moves for a Certificate of Appealability (“COA”) to\nappeal whether, under Federal Rule of Civil Procedure 60(b)(6), extraordinary\ncircumstances require us to reopen the final judgment and grant funding for\nrepresentation services. He also moves for a stay of execution. Because Crut-\nsinger fails to show that reasonable jurists would debate whether the district\n\n Case: 19-70012 Document: 00515092419 Page: 2 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\ncourt abused its discretion in denying his motion, we deny a COA. Moreover,\nbecause Crutsinger does not establish that the circumstances justify the exer-\ncise of our equitable discretion, we deny the motion for a stay.\n\n I.\n In 2003, Billy Jack Crutsinger murdered eighty-nine-year-old Pearl\nMagouirk and her seventy-one-year-old daughter, Patricia Syren. Crutsinger\nv. Davis (Crutsinger III), 929 F.3d 259, 261 (5th Cir. 2019). He was convicted\nof capital murder and sentenced to death, id., and is scheduled to be executed\non September 4, 2019.\n\n Last month, we remanded for consideration of Crutsinger’s Rule 60(b)(6)\nmotion, id. at 266, then denied his motion for a stay of execution, Crutsinger v.\nDavis (Crutsinger IV), 930 F.3d 705, 706–09 (5th Cir. 2019) (per curiam). In a\nthorough and well-reasoned opinion, the district court denied Crutsinger’s\nRule 60(b) motion, his 18 U.S.C. § 3599(f) funding request, and his request for\na COA. Crutsinger v. Davis (Crutsinger V), No. 4:07-CV-00703-Y, 2019 WL\n3749530, at *1–9 (N.D. Tex. Aug. 8, 2019).\n\n II.\n A.\n As a jurisdictional prerequisite, a habeas petitioner must obtain a COA\nbefore we may consider his appeal. 1 A COA is required to appeal the denial of\na Rule 60(b) motion. Buck v. Davis, 137 S. Ct. 759, 777 (2017). Issuance of a\nCOA requires the petitioner to make “a substantial showing of the denial of a\nconstitutional right.” 28 U.S.C. § 2253(c). Ultimately, the central question is\n“whether a reasonable jurist could conclude that the District Court abused its\n\n\n\n 1 Raby v. Davis, 907 F.3d 880, 883 (5th Cir. 2018); accord Miller-El v. Cockrell,\n537 U.S. 322, 335–36 (2003); see also 28 U.S.C. § 2253(c).\n 2\n\n Case: 19-70012 Document: 00515092419 Page: 3 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\ndiscretion in declining to reopen the judgment.” 2\n\n Federal Rule of Civil Procedure 60(b)(6) permits relief from a judgment\nor order for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6). To\nprevail on a Rule 60(b)(6) motion in the habeas context, a movant must\n(1) make the motion within a reasonable time, FED. R. CIV. P. 60(c), and\n(2) establish that extraordinary circumstances justify the reopening of the final\njudgment, Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Such extraordinary\ncircumstances “will rarely occur in the habeas context.” Id. “A change in deci-\nsional law after entry of judgment does not constitute extraordinary circum-\nstances and is not alone grounds for relief from a final judgment.” 3\n\n B.\n Crutsinger maintains that he is entitled to relief under Rule 60(b)\nbecause recent changes in decisional law, including Ayestas v. Davis, 138 S. Ct.\n1080 (2018), Trevino v. Thaler, 569 U.S. 413 (2013), and Martinez v. Ryan, 566\nU.S. 1 (2012), coupled with seven additional factors, 4 constitute extraordinary\n\n\n 2 Buck, 137 S. Ct. at 777; accord Miller-El, 537 U.S. at 336 (“[A] petitioner must show\nthat reasonable jurists could debate whether . . . the petition should have been resolved in a\ndifferent manner or that the issues presented were adequate to deserve encouragement to\nproceed further.” (internal quotation marks, alteration, and citations omitted)).\n 3Raby, 907 F.3d at 884 (internal quotation marks, alteration, and citations omitted);\naccord Adams v. Thaler, 679 F.3d 312, 319–20 (5th Cir. 2012); Hernandez v. Thaler, 630 F.3d\n420, 430 (5th Cir. 2011); Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990).\n 4 Those factors include (1) “[t]he nature of the proceedings as habeas corpus, in which\ntraditional res-judicata rules have never applied, and the careful adjudication of which the\nSupreme Court has called the highest duty of a federal court,” Crutsinger V, 2019 WL\n3749530, at *2; (2) “[t]he nature of the case as a capital case,” id.; (3) “[t]he nature of the\nalleged defect as a deprivation of guaranteed representation, which is structural in nature\nand undermines public confidence in the judicial process,” id.; (4) “[t]he nature of the alleged\ndefect, which operated to preclude hearing the true merits of the case because it thwarted\nCrutsinger’s ability ‘even to discover and allege material facts in support of claims he sought\nto pursue in good faith,’” id.; (5) “[t]he fact that the Supreme Court specifically mentioned\nthis case in Ayestas,” id.; (6) “[t]he facts underlying the claims affected by the alleged defect\nare egregious, including that petitioner’s trial counsel went to trial only five months after\nbeing appointed in a capital case and state habeas counsel effectively abandoned him,” id.;\n 3\n\n Case: 19-70012 Document: 00515092419 Page: 4 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\ncircumstances. Crutsinger underscores that “[r]easonable jurists could . . .\ndebate whether . . . the ruling of the district court denying [Rule] 60(b) relief\nand funding should have been resolved in a different manner or that the issues\npresented were adequate to deserve encouragement to proceed further.”\n\n In support of this, Crutsinger cites the dissent from our recent decision 5\nand claims that the district court incorrectly analyzed the seven additional\nfactors he raised. He contends—contrary to Crutsinger IV, 930 F.3d at 707 &\nn.1—that Diaz v. Stephens, 731 F.3d 370, 376 (5th Cir. 2013), and Adams,\n679 F.3d at 319–20, do not bar relief under Rule 60(b). Crutsinger essentially\nmaintains that Adams and Diaz were wrongly decided because Martinez was\nan equitable ruling as distinguished from a constitutional one.\n\n Crutsinger next recites the Ayestas standard for funding under § 3599(f),\nasserting that “[t]he district court’s record-bound, merits-review conflicts with\nAyestas in how funding determinations are assessed.” He contends that he has\ndoggedly pursued his § 3599(f) right to funding over the last decade and that\nhis funding request is not frivolous. Crutsinger further emphasizes that the\nextraordinary circumstances underlying his Rule 60(b) motion do not include\nmerely the changes in decisional law and his diligent pursuit of § 3599(f) fund-\ning. He posits that the risk this case will undermine public confidence in the\njudicial process also supports his claim of extraordinary circumstances.\n\n Lastly, Crutsinger stresses that “Gonzalez did not announce any rule\nthat a change in law cannot constitute an extraordinary circumstance warrant-\ning relief from the judgment.” In Gonzalez, 545 U.S. at 536, the Court\n\n\n\nand (7) the fact that “Crutsinger has exercised extraordinary diligence in pursuing his repre-\nsentation rights,” id.\n 5 Crutsinger III, 929 F.3d at 266 (Graves, J., dissenting) (“Because I conclude that\nBilly Jack Crutsinger’s motion under Federal Rule of Civil Procedure 60(b)(6) should be\ngranted, I would vacate and remand for proper consideration of his funding motion.”).\n 4\n\n Case: 19-70012 Document: 00515092419 Page: 5 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\nremarked that “not every interpretation of the federal statutes setting forth\nthe requirements for habeas provides cause for reopening cases long since\nfinal.” Importantly, Crutsinger asserts, this “does not mean that no erroneous\ninterpretation does” (emphasis omitted). In contrast to the circumstances in\nGonzalez, he asserts that he was “independently deprived . . . of a federally\nguaranteed right” and that “[t]he deprivation of that right demands a remedy.”\nConsequently, he contends that the totality of the circumstances warrants\nrelief under Rule 60(b).\n\n In response, the state maintains that reasonable jurists would not debate\nwhether the district court abused its discretion in declining to reopen because\nGonzalez and circuit precedent, forecloses such relief. In Gonzalez, 545 U.S. at\n536, the Court stated that “[i]t is hardly extraordinary that subsequently, after\npetitioner’s case was no longer pending, this Court arrived at a different inter-\npretation” of a federal statute. We reiterated this sentiment in both of our\nrecent Crutsinger decisions. 6 The state further underscores that “[i]f a change\nin law that entirely precluded merits review—as in Gonzalez—is not sufficient\nto warrant Rule 60(b)(6) relief, then the change in the law . . . on a lesser\nmatter—funding to possibly support a claim for relief—necessarily cannot\nwarrant Rule 60(b)(6) relief.”\n\n Echoing our recent statements in Crutsinger IV, 930 F.3d at 707 & n.1,\nthe state avers that “this [c]ourt’s precedent forecloses reliance on Martinez\nand Trevino to achieve relief under Rule 60(b).” The state cites our recent pub-\nlished decision in In re Johnson, Nos. 19-20552, 19-70013, 2019 WL 3814384,\n\n\n\n 6 Crutsinger IV, 930 F.3d at 707; Crutsinger III, 929 F.3d at 266 (“It would appear that\nthe Supreme Court’s holding in Gonzalez that not every interpretation of the federal statutes\nsetting forth the requirements for habeas provides cause for reopening cases long since final\nis at least instructive, if not dispositive, of Crutsinger’s Rule 60(b) motion.” (internal quota-\ntion marks and citation omitted)).\n 5\n\n Case: 19-70012 Document: 00515092419 Page: 6 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\nat *3 (5th Cir. Aug. 15, 2019), to buttress that contention. In Johnson, relying\non Raby, 907 F.3d at 884, we reaffirmed that a claim of deficient representta-\ntion, without more, is insufficient to obtain Rule 60(b) relief. Johnson, 2019\nWL 3814384, at *3. Moreover, we emphasized there, as here, that the movant\nfailed to offer “any authority that [§] 3599 has ever provided relief pursuant to\nRule 60(b).” Id. at *4. Consequently, we denied a COA. 7\n\n Finally, the state contends that the other factors raised by Crutsinger\nweigh against Rule 60(b) relief because they are not extraordinary. The state\nnotes that Diaz and Haynes v. Davis, 733 F. App’x 766, 768–70 (5th Cir. 2018),\nfound that changes in decisional law (specifically, Trevino and Martinez),\ncoupled with various other “equities,” were not enough to establish extraordin-\nary circumstances. In Diaz, 731 F.3d at 377), we emphasized that the peti-\ntioner’s circumstances were “no more unique or extraordinary than any other\ncapital inmate who defaulted claims in state court prior to Trevino.” (Citation\nomitted.) So, too, with Crutsinger’s funding request after Ayestas.\n\n Moreover, in Haynes, 733 F. App’x at 770,we maintained that “finality is\na particularly strong consideration in the habeas context.” The state empha-\nsizes that here, as in Haynes, Crutsinger has been litigating his claims in\nfederal court for more than a decade and has received multiple stages of review.\nIn both cases, we found that Rule 60(b) relief was not warranted. See id.; Diaz,\n731 F.3d at 379.\n\n Ultimately, the state contends, “Crutsinger cites no authority for the\nproposition that a district court’s entirely discretionary denial of funding in\n\n\n\n 7 Id. The state also maintains that the district court’s thorough opinion explicitly\naddressed the Crutsinger III dissent’s concerns—that the denial of funding risked undermin-\ning the public’s confidence in the judicial process and producing an unjust result, Crut-\nsinger III, 930 F.3d at 271 (Graves, J., dissenting)—by “discussing the prior merits review of\nthe claim” and providing a proper review of Crutsinger’s funding request under Ayestas.\n 6\n\n Case: 19-70012 Document: 00515092419 Page: 7 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\nany way deprived him of his statutory right to representation.” Consequently,\nbecause none of the other factors he cites establishes extraordinary circum-\nstances, “he cannot show that reasonable jurists would debate the lower court’s\ndenial of that motion.”\n\n C.\n Crutsinger is not entitled to a COA because reasonable jurists would not\ndebate whether the district court abused its discretion in denying his Rule\n60(b) motion. A petitioner “seeking relief under Rule 60(b)(6) [must] show\nextraordinary circumstances justifying the reopening of a final judgment.”\nGonzalez, 545 U.S. at 535 (internal quotation marks and citation omitted).\nThis is a strict standard, so extraordinary circumstances are rarely present in\nthe habeas context. Id. Mere changes in decisional law, without more, do not\nconstitute extraordinary circumstances. See id. at 536–37. “It is hardly extra-\nordinary that subsequently, after petitioner’s case was no longer pending, this\nCourt arrived at a different interpretation” of a federal statute. Id. at 536.\nImportantly, the Court maintained, “not every interpretation of the federal\nstatutes setting forth the requirements for habeas provides cause for reopening\ncases long since final.” Id. Moreover, “if, as in Gonzalez, a change in law that\nentirely precluded merits review is not sufficient to warrant Rule 60(b)(6)\nrelief,” then (as is the case here) a change in law that did not preclude merits\nreview does not merit such relief. Crutsinger IV, 930 F.3d at 707 (internal\nquotation marks omitted).\n\n Circuit precedent also squarely forecloses Crutsinger’s claim. 8 We noted\nas much in both of our recent decisions. Crutsinger IV, 930 F.3d at 707;\n\n\n\n 8 E.g., Johnson, 2019 WL 3814384, at *3; Raby, 907 F.3d at 884; Haynes, 733 F. App’x\nat 768–70; Diaz, 731 F.3d at 375–76; Adams, 679 F.3d at 319–20; Hernandez, 630 F.3d at 430;\nBailey, 894 F.2d at 160.\n 7\n\n Case: 19-70012 Document: 00515092419 Page: 8 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\nCrutsinger III, 929 F.3d at 266. This overwhelming precedent is effectively\ndispositive of the matter. 9\n\n Crutsinger attempts to evade this precedent by claiming that the\nchanges in decisional law, coupled with seven additional factors, constitute\nextraordinary circumstances. The district court, however, rejected this theory,\nengaging in an exhaustive review of the seven factors presented by Crutsinger.\nCrutsinger V, 2019 WL 3749530, at *2–6. The court’s analysis is both helpful\nand, more importantly, correct.\n\n Citing both Supreme Court and circuit precedent, the district court con-\ncluded that the capital habeas nature of this case does not make its circum-\nstances extraordinary. Id. at *2. The court also noted that, despite Crutsin-\nger’s claims, the denial of funding was not structural error, making his circum-\nstances all the more ordinary. See id. at *3.\n\n The district court engaged in an extensive review of the record to dem-\nonstrate that Crutsinger’s representation at trial was not egregious and that\nhe was not precluded from receiving a merits-based review of his federal\nhabeas claims, including his claim of ineffective assistance of counsel (“IAC”).\nId. at *3–6; see also Crutsinger v. Thaler (Crutsinger I), No. 4:07-CV-703-Y,\n2012 WL 369927, at *4–13 (N.D. Tex. Feb. 6, 2012). As the court rightly em-\nphasized, Crutsinger’s “assertions that the denial of funding precluded a true\nmerits review and that trial counsel’s representation was egregious, border on\nfrivolous.” Crutsinger V, 2019 WL 3749530, at *3. Neither of these factors\nsupports his claim that extraordinary circumstances justify reopening.\n\n The district court concluded that Ayestas’s abrogation of Crutsinger v.\nStephens (Crutsinger II), 576 F. App’x 422 (5th Cir. 2014), cert. denied,\n\n\n 9 Moreover, here, as was true in Johnson, Crutsinger fails to offer “any authority that\n[§] 3599 has ever provided relief pursuant to Rule 60(b).” 2019 WL 3814384, at *4.\n 8\n\n Case: 19-70012 Document: 00515092419 Page: 9 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\n135 S. Ct. 1401 (2015), did not support a finding of extraordinary circum-\nstances because Ayestas “emphasize[d] that there was no error in this case\nbefore Trevino.” Crutsinger V, 2019 WL 3749530, at *6. Lastly, the court\nconcluded, even “[a]ssuming Crutsinger has exhibited due diligence, he fails to\nprovide authority that diligence plus a change in law are sufficient in death-\npenalty cases to reopen a judgment under Rule 60(b)(6).” 10\n\n Ultimately, the changes in decisional law, even when viewed in conjunc-\ntion with these additional factors, fail to establish extraordinary circumstances\nwarranting relief from the judgment. Therefore, the district court did not\nabuse its discretion in denying the Rule 60(b) motion. Because jurists of reason\nwould not debate this conclusion, particularly in light of Supreme Court and\nFifth Circuit precedent, Crutsinger is not entitled to a COA.\n\n III.\n A.\n As discussed in Crutsinger IV, 930 F.3d at 706, “a stay of execution is an\nequitable remedy. It is not available as a matter of right, and equity must be\nsensitive to the [s]tate’s strong interest in enforcing its criminal judgments\nwithout undue interference from the federal courts.” 11 We evaluate four\n\n\n\n 10 Id. The district court went a step further: Acknowledging the Crutsinger III dis-\nsent’s concerns, 929 F.3d at 266–71 (Graves, J., dissenting), the court reviewed Crutsinger’s\n§ 3599(f) request under Ayestas. Crutsinger V, 2019 WL 3749530, at *6–9.\n In Ayestas, 138 S. Ct. at 1094, the Court noted that “the ‘reasonably necessary’ test\nrequires an assessment of the likely utility of the services requested, and § 3599(f) cannot be\nread to guarantee that an applicant will have enough money to turn over every stone.”\nTherefore, the district court stressed, proper application of the test required it to consider:\n(1) “the potential merit of the claim that Crutsinger wants to pursue,” Crutsinger V, 2019 WL\n3749530, at *7; (2) “the likelihood that the services will generate useful and admissible evi-\ndence,” id.; and (3) “the prospect that Crutsinger will be able to clear any procedural hurdles\nstanding in the way,” id. Finding that Crutsinger failed to meet that standard, the court\ndenied funding. Id. at *9.\n 11 Hill v. McDonough, 547 U.S. 573, 584 (2006); see also Sepulvado v. Jindal, 729 F.3d\n 9\n\n Case: 19-70012 Document: 00515092419 Page: 10 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\nfactors. 12 First, “whether the stay applicant has made a strong showing that\nhe is likely to succeed on the merits.” Charles, 612 F. App’x at 218 n.7 (citation\nomitted). Second, “whether the applicant will be irreparably injured absent a\nstay.” Id. (citation omitted). Third, “whether issuance of the stay will substan-\ntially injure the other parties interested in the proceeding.” Id. (citation omit-\nted). And fourth, “the public interest.” Id. (citation omitted).\n\n “The first two factors of the traditional standard are the most critical. It\nis not enough that the chance of success on the merits be better than negligi-\nble.” Nken, 556 U.S. at 434 (internal quotation marks and citation omitted).\n“Once an applicant satisfies the first two factors, the traditional stay inquiry\ncalls for assessing the harm to the opposing party and weighing the public\ninterest.” Id. at 435. “These factors merge when the [state] is the opposing\nparty.” Id. “[C]ourts must be mindful that the [state’s] role as the respondent\nin every . . . proceeding does not make the public interest in each individual\none negligible.” Id.\n\n B.\n Crutsinger asserts that we should grant a stay because he was forced “to\nfile a habeas corpus application . . . without the provision of high-quality repre-\nsentation guaranteed to him by 18 U.S.C. § 3599.” Citing Lonchar v. Thomas,\n517 U.S. 314 (1996), Crutsinger avers that he cannot “be executed until the\nmerits of his initial habeas corpus application have been meaningfully adjudi-\ncated.” He notes that Barefoot v. Estelle, 463 U.S. 880 (1983), mandates “mean-\ningful appellate review for any issue” on which we grant a COA.\n\n\n\n\n413, 420 (5th Cir. 2013).\n 12Murphy v. Collier, 919 F.3d 913, 915 (5th Cir. 2019) (per curiam); Charles v.\nStephens, 612 F. App’x 214, 218 n.7 (5th Cir. 2015) (per curiam); see also Nken v. Holder,\n556 U.S. 418, 425–26 (2009).\n 10\n\n Case: 19-70012 Document: 00515092419 Page: 11 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\n As he did in his initial motion for a stay of execution, Crutsinger IV,\n930 F.3d at 708, Crutsinger contends that he “may not be executed until he\nhas been afforded the representation in federal collateral proceedings that he\nis due under . . . § 3599.” Without an “appropriate post-conviction investiga-\ntion,” he “remains exposed to the substantial risk that meritorious habeas\ncorpus claims will never be heard.”\n\n C.\n Despite his familiarity with our standard for a stay of execution, see\nCrutsinger IV, 930 F.3d at 706–09, Crutsinger does not even attempt to engage\nwith the four equitable factors. In any event, it is moot: As was the case in\nCrutsinger IV, 930 F.3d at 706−07, he fails to establish a likelihood of success\non the merits. That failure “is, effectively, dispositive of the motion for stay.”\nId. at 707.\n\n Moreover, the arguments raised by Crutsinger, which essentially echo\nthose he raised in Crutsinger IV, do not support granting a stay. Lonchar and\nBarefoot stand for the unremarkable proposition that a petitioner may not be\nexecuted before a court has reviewed the merits of his habeas petition. Lon-\nchar, 517 U.S. at 319–20. Crutsinger received such a review more than seven\nyears ago. Crutsinger I, 2012 WL 369927, at *4–13; see also Crutsinger II,\n576 F. App’x at 425–31. As part of that review, he was given a full and fair\nopportunity to litigate the merits of his habeas petition. Crutsinger V, 2019\nWL 3749530, at *3–6. Any claim to contrary is baseless. Id. at *3. Moreover,\nCrutsinger’s continued insistence that he is entitled to § 3599(f) funding is\nfalse. Such funding is discretionary. 13\n\n Crutsinger’s reliance on McFarland v. Scott, 512 U.S. 849, 858 (1994),\n\n\n 13 Ayestas, 138 S. Ct. at 1094 (“Congress has made it clear, however, that district\ncourts have broad discretion in assessing requests for funding.”).\n 11\n\n Case: 19-70012 Document: 00515092419 Page: 12 Date Filed: 08/26/2019\n\n\n No. 19-70012\n\nand Battaglia v. Stephens, 824 F.3d 470, 475 (5th Cir. 2016), is similarly\nmisplaced. Those cases provide only that (1) a capital defendant must “have\nsufficient time to request the appointment of counsel and file a formal habeas\npetition prior to his scheduled execution,” McFarland, 512 U.S. at 858, and\n(2) newly appointed counsel, if chosen for a defendant who effectively lacked\nhabeas counsel, must be given time to develop a habeas claim for the appoint-\nment to be meaningful, Battaglia, 824 F.3d at 475–76. “Crutsinger, however,\nhas been well-represented by his counsel for approximately eleven years,” and\nhe would not, as in McFarland or Battaglia, “be deprived of meaningful counsel\nabsent a stay.” Crutsinger IV, 930 F.3d at 708. Lastly, “[e]ven if Crutsinger\ncould establish a likelihood of success on the merits—which he cannot—the\nother [equitable] factors weigh in favor of the state.” Id. at 709.\n\n We take seriously “a [s]tate’s strong interest in the timely enforcement\nof valid judgments of its courts.” 14 “Equity must be sensitive to the [s]tate’s\nstrong interest in enforcing its criminal judgments without undue interference\nfrom the federal courts.” Crutsinger IV, 930 F.3d at 709 (citation omitted).\nCrutsinger’s motion for a stay of execution is therefore denied.\n\n In summary, the motion for a COA and the motion for stay of execution\nare DENIED.\n\n\n\n\n 14Murphy v. Collier, 139 S. Ct. 1475, 1481 (2019) (Alito, J., dissenting); see also In re\nBlodgett, 502 U.S. 236, 239 (1992) (per curiam).\n 12\n\n Case: 19-70012 Document: 00515092419 Page: 13 Date Filed: 08/26/2019\n\n\n No. 19-70012\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Billy Crutsinger v. Lorie Davis, Director\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-26\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 19-70012 Document: 00515092419 Page: 1 Date Filed: 08/26/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n FILED\\n No. 19-70012 August 26, 2019\\n Lyle W. Cayce\\n Clerk\\n\\n\\nBILLY JACK CRUTSINGER,\\n\\n Petitioner–Appellant,\\n\\nversus\\n\\nLORIE DAVIS, Director,\\nTexas Department of Criminal Justice, Correctional Institutions Division,\\n\\n Respondent–Appellee.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of Texas\\n\\n\\n\\n\\nBefore SMITH, OWEN, and GRAVES, Circuit Judges.\\nJERRY E. SMITH, Circuit Judge:\\n\\n Billy Crutsinger moves for a Certificate of Appealability (“COA”) to\\nappeal whether, under Federal Rule of Civil Procedure 60(b)(6), extraordinary\\ncircumstances require us to reopen the final judgment and grant funding for\\nrepresentation services. He also moves for a stay of execution. Because Crut-\\nsinger fails to show that reasonable jurists would debate whether the district\\n\\n Case: 19-70012 Document: 00515092419 Page: 2 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\ncourt abused its discretion in denying his motion, we deny a COA. Moreover,\\nbecause Crutsinger does not establish that the circumstances justify the exer-\\ncise of our equitable discretion, we deny the motion for a stay.\\n\\n I.\\n In 2003, Billy Jack Crutsinger murdered eighty-nine-year-old Pearl\\nMagouirk and her seventy-one-year-old daughter, Patricia Syren. Crutsinger\\nv. Davis (Crutsinger III), 929 F.3d 259, 261 (5th Cir. 2019). He was convicted\\nof capital murder and sentenced to death, id., and is scheduled to be executed\\non September 4, 2019.\\n\\n Last month, we remanded for consideration of Crutsinger’s Rule 60(b)(6)\\nmotion, id. at 266, then denied his motion for a stay of execution, Crutsinger v.\\nDavis (Crutsinger IV), 930 F.3d 705, 706–09 (5th Cir. 2019) (per curiam). In a\\nthorough and well-reasoned opinion, the district court denied Crutsinger’s\\nRule 60(b) motion, his 18 U.S.C. § 3599(f) funding request, and his request for\\na COA. Crutsinger v. Davis (Crutsinger V), No. 4:07-CV-00703-Y, 2019 WL\\n3749530, at *1–9 (N.D. Tex. Aug. 8, 2019).\\n\\n II.\\n A.\\n As a jurisdictional prerequisite, a habeas petitioner must obtain a COA\\nbefore we may consider his appeal. 1 A COA is required to appeal the denial of\\na Rule 60(b) motion. Buck v. Davis, 137 S. Ct. 759, 777 (2017). Issuance of a\\nCOA requires the petitioner to make “a substantial showing of the denial of a\\nconstitutional right.” 28 U.S.C. § 2253(c). Ultimately, the central question is\\n“whether a reasonable jurist could conclude that the District Court abused its\\n\\n\\n\\n 1 Raby v. Davis, 907 F.3d 880, 883 (5th Cir. 2018); accord Miller-El v. Cockrell,\\n537 U.S. 322, 335–36 (2003); see also 28 U.S.C. § 2253(c).\\n 2\\n\\n Case: 19-70012 Document: 00515092419 Page: 3 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\ndiscretion in declining to reopen the judgment.” 2\\n\\n Federal Rule of Civil Procedure 60(b)(6) permits relief from a judgment\\nor order for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6). To\\nprevail on a Rule 60(b)(6) motion in the habeas context, a movant must\\n(1) make the motion within a reasonable time, FED. R. CIV. P. 60(c), and\\n(2) establish that extraordinary circumstances justify the reopening of the final\\njudgment, Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Such extraordinary\\ncircumstances “will rarely occur in the habeas context.” Id. “A change in deci-\\nsional law after entry of judgment does not constitute extraordinary circum-\\nstances and is not alone grounds for relief from a final judgment.” 3\\n\\n B.\\n Crutsinger maintains that he is entitled to relief under Rule 60(b)\\nbecause recent changes in decisional law, including Ayestas v. Davis, 138 S. Ct.\\n1080 (2018), Trevino v. Thaler, 569 U.S. 413 (2013), and Martinez v. Ryan, 566\\nU.S. 1 (2012), coupled with seven additional factors, 4 constitute extraordinary\\n\\n\\n 2 Buck, 137 S. Ct. at 777; accord Miller-El, 537 U.S. at 336 (“[A] petitioner must show\\nthat reasonable jurists could debate whether . . . the petition should have been resolved in a\\ndifferent manner or that the issues presented were adequate to deserve encouragement to\\nproceed further.” (internal quotation marks, alteration, and citations omitted)).\\n 3Raby, 907 F.3d at 884 (internal quotation marks, alteration, and citations omitted);\\naccord Adams v. Thaler, 679 F.3d 312, 319–20 (5th Cir. 2012); Hernandez v. Thaler, 630 F.3d\\n420, 430 (5th Cir. 2011); Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990).\\n 4 Those factors include (1) “[t]he nature of the proceedings as habeas corpus, in which\\ntraditional res-judicata rules have never applied, and the careful adjudication of which the\\nSupreme Court has called the highest duty of a federal court,” Crutsinger V, 2019 WL\\n3749530, at *2; (2) “[t]he nature of the case as a capital case,” id.; (3) “[t]he nature of the\\nalleged defect as a deprivation of guaranteed representation, which is structural in nature\\nand undermines public confidence in the judicial process,” id.; (4) “[t]he nature of the alleged\\ndefect, which operated to preclude hearing the true merits of the case because it thwarted\\nCrutsinger’s ability ‘even to discover and allege material facts in support of claims he sought\\nto pursue in good faith,’” id.; (5) “[t]he fact that the Supreme Court specifically mentioned\\nthis case in Ayestas,” id.; (6) “[t]he facts underlying the claims affected by the alleged defect\\nare egregious, including that petitioner’s trial counsel went to trial only five months after\\nbeing appointed in a capital case and state habeas counsel effectively abandoned him,” id.;\\n 3\\n\\n Case: 19-70012 Document: 00515092419 Page: 4 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\ncircumstances. Crutsinger underscores that “[r]easonable jurists could . . .\\ndebate whether . . . the ruling of the district court denying [Rule] 60(b) relief\\nand funding should have been resolved in a different manner or that the issues\\npresented were adequate to deserve encouragement to proceed further.”\\n\\n In support of this, Crutsinger cites the dissent from our recent decision 5\\nand claims that the district court incorrectly analyzed the seven additional\\nfactors he raised. He contends—contrary to Crutsinger IV, 930 F.3d at 707 &\\nn.1—that Diaz v. Stephens, 731 F.3d 370, 376 (5th Cir. 2013), and Adams,\\n679 F.3d at 319–20, do not bar relief under Rule 60(b). Crutsinger essentially\\nmaintains that Adams and Diaz were wrongly decided because Martinez was\\nan equitable ruling as distinguished from a constitutional one.\\n\\n Crutsinger next recites the Ayestas standard for funding under § 3599(f),\\nasserting that “[t]he district court’s record-bound, merits-review conflicts with\\nAyestas in how funding determinations are assessed.” He contends that he has\\ndoggedly pursued his § 3599(f) right to funding over the last decade and that\\nhis funding request is not frivolous. Crutsinger further emphasizes that the\\nextraordinary circumstances underlying his Rule 60(b) motion do not include\\nmerely the changes in decisional law and his diligent pursuit of § 3599(f) fund-\\ning. He posits that the risk this case will undermine public confidence in the\\njudicial process also supports his claim of extraordinary circumstances.\\n\\n Lastly, Crutsinger stresses that “Gonzalez did not announce any rule\\nthat a change in law cannot constitute an extraordinary circumstance warrant-\\ning relief from the judgment.” In Gonzalez, 545 U.S. at 536, the Court\\n\\n\\n\\nand (7) the fact that “Crutsinger has exercised extraordinary diligence in pursuing his repre-\\nsentation rights,” id.\\n 5 Crutsinger III, 929 F.3d at 266 (Graves, J., dissenting) (“Because I conclude that\\nBilly Jack Crutsinger’s motion under Federal Rule of Civil Procedure 60(b)(6) should be\\ngranted, I would vacate and remand for proper consideration of his funding motion.”).\\n 4\\n\\n Case: 19-70012 Document: 00515092419 Page: 5 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nremarked that “not every interpretation of the federal statutes setting forth\\nthe requirements for habeas provides cause for reopening cases long since\\nfinal.” Importantly, Crutsinger asserts, this “does not mean that no erroneous\\ninterpretation does” (emphasis omitted). In contrast to the circumstances in\\nGonzalez, he asserts that he was “independently deprived . . . of a federally\\nguaranteed right” and that “[t]he deprivation of that right demands a remedy.”\\nConsequently, he contends that the totality of the circumstances warrants\\nrelief under Rule 60(b).\\n\\n In response, the state maintains that reasonable jurists would not debate\\nwhether the district court abused its discretion in declining to reopen because\\nGonzalez and circuit precedent, forecloses such relief. In Gonzalez, 545 U.S. at\\n536, the Court stated that “[i]t is hardly extraordinary that subsequently, after\\npetitioner’s case was no longer pending, this Court arrived at a different inter-\\npretation” of a federal statute. We reiterated this sentiment in both of our\\nrecent Crutsinger decisions. 6 The state further underscores that “[i]f a change\\nin law that entirely precluded merits review—as in Gonzalez—is not sufficient\\nto warrant Rule 60(b)(6) relief, then the change in the law . . . on a lesser\\nmatter—funding to possibly support a claim for relief—necessarily cannot\\nwarrant Rule 60(b)(6) relief.”\\n\\n Echoing our recent statements in Crutsinger IV, 930 F.3d at 707 & n.1,\\nthe state avers that “this [c]ourt’s precedent forecloses reliance on Martinez\\nand Trevino to achieve relief under Rule 60(b).” The state cites our recent pub-\\nlished decision in In re Johnson, Nos. 19-20552, 19-70013, 2019 WL 3814384,\\n\\n\\n\\n 6 Crutsinger IV, 930 F.3d at 707; Crutsinger III, 929 F.3d at 266 (“It would appear that\\nthe Supreme Court’s holding in Gonzalez that not every interpretation of the federal statutes\\nsetting forth the requirements for habeas provides cause for reopening cases long since final\\nis at least instructive, if not dispositive, of Crutsinger’s Rule 60(b) motion.” (internal quota-\\ntion marks and citation omitted)).\\n 5\\n\\n Case: 19-70012 Document: 00515092419 Page: 6 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nat *3 (5th Cir. Aug. 15, 2019), to buttress that contention. In Johnson, relying\\non Raby, 907 F.3d at 884, we reaffirmed that a claim of deficient representta-\\ntion, without more, is insufficient to obtain Rule 60(b) relief. Johnson, 2019\\nWL 3814384, at *3. Moreover, we emphasized there, as here, that the movant\\nfailed to offer “any authority that [§] 3599 has ever provided relief pursuant to\\nRule 60(b).” Id. at *4. Consequently, we denied a COA. 7\\n\\n Finally, the state contends that the other factors raised by Crutsinger\\nweigh against Rule 60(b) relief because they are not extraordinary. The state\\nnotes that Diaz and Haynes v. Davis, 733 F. App’x 766, 768–70 (5th Cir. 2018),\\nfound that changes in decisional law (specifically, Trevino and Martinez),\\ncoupled with various other “equities,” were not enough to establish extraordin-\\nary circumstances. In Diaz, 731 F.3d at 377), we emphasized that the peti-\\ntioner’s circumstances were “no more unique or extraordinary than any other\\ncapital inmate who defaulted claims in state court prior to Trevino.” (Citation\\nomitted.) So, too, with Crutsinger’s funding request after Ayestas.\\n\\n Moreover, in Haynes, 733 F. App’x at 770,we maintained that “finality is\\na particularly strong consideration in the habeas context.” The state empha-\\nsizes that here, as in Haynes, Crutsinger has been litigating his claims in\\nfederal court for more than a decade and has received multiple stages of review.\\nIn both cases, we found that Rule 60(b) relief was not warranted. See id.; Diaz,\\n731 F.3d at 379.\\n\\n Ultimately, the state contends, “Crutsinger cites no authority for the\\nproposition that a district court’s entirely discretionary denial of funding in\\n\\n\\n\\n 7 Id. The state also maintains that the district court’s thorough opinion explicitly\\naddressed the Crutsinger III dissent’s concerns—that the denial of funding risked undermin-\\ning the public’s confidence in the judicial process and producing an unjust result, Crut-\\nsinger III, 930 F.3d at 271 (Graves, J., dissenting)—by “discussing the prior merits review of\\nthe claim” and providing a proper review of Crutsinger’s funding request under Ayestas.\\n 6\\n\\n Case: 19-70012 Document: 00515092419 Page: 7 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nany way deprived him of his statutory right to representation.” Consequently,\\nbecause none of the other factors he cites establishes extraordinary circum-\\nstances, “he cannot show that reasonable jurists would debate the lower court’s\\ndenial of that motion.”\\n\\n C.\\n Crutsinger is not entitled to a COA because reasonable jurists would not\\ndebate whether the district court abused its discretion in denying his Rule\\n60(b) motion. A petitioner “seeking relief under Rule 60(b)(6) [must] show\\nextraordinary circumstances justifying the reopening of a final judgment.”\\nGonzalez, 545 U.S. at 535 (internal quotation marks and citation omitted).\\nThis is a strict standard, so extraordinary circumstances are rarely present in\\nthe habeas context. Id. Mere changes in decisional law, without more, do not\\nconstitute extraordinary circumstances. See id. at 536–37. “It is hardly extra-\\nordinary that subsequently, after petitioner’s case was no longer pending, this\\nCourt arrived at a different interpretation” of a federal statute. Id. at 536.\\nImportantly, the Court maintained, “not every interpretation of the federal\\nstatutes setting forth the requirements for habeas provides cause for reopening\\ncases long since final.” Id. Moreover, “if, as in Gonzalez, a change in law that\\nentirely precluded merits review is not sufficient to warrant Rule 60(b)(6)\\nrelief,” then (as is the case here) a change in law that did not preclude merits\\nreview does not merit such relief. Crutsinger IV, 930 F.3d at 707 (internal\\nquotation marks omitted).\\n\\n Circuit precedent also squarely forecloses Crutsinger’s claim. 8 We noted\\nas much in both of our recent decisions. Crutsinger IV, 930 F.3d at 707;\\n\\n\\n\\n 8 E.g., Johnson, 2019 WL 3814384, at *3; Raby, 907 F.3d at 884; Haynes, 733 F. App’x\\nat 768–70; Diaz, 731 F.3d at 375–76; Adams, 679 F.3d at 319–20; Hernandez, 630 F.3d at 430;\\nBailey, 894 F.2d at 160.\\n 7\\n\\n Case: 19-70012 Document: 00515092419 Page: 8 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nCrutsinger III, 929 F.3d at 266. This overwhelming precedent is effectively\\ndispositive of the matter. 9\\n\\n Crutsinger attempts to evade this precedent by claiming that the\\nchanges in decisional law, coupled with seven additional factors, constitute\\nextraordinary circumstances. The district court, however, rejected this theory,\\nengaging in an exhaustive review of the seven factors presented by Crutsinger.\\nCrutsinger V, 2019 WL 3749530, at *2–6. The court’s analysis is both helpful\\nand, more importantly, correct.\\n\\n Citing both Supreme Court and circuit precedent, the district court con-\\ncluded that the capital habeas nature of this case does not make its circum-\\nstances extraordinary. Id. at *2. The court also noted that, despite Crutsin-\\nger’s claims, the denial of funding was not structural error, making his circum-\\nstances all the more ordinary. See id. at *3.\\n\\n The district court engaged in an extensive review of the record to dem-\\nonstrate that Crutsinger’s representation at trial was not egregious and that\\nhe was not precluded from receiving a merits-based review of his federal\\nhabeas claims, including his claim of ineffective assistance of counsel (“IAC”).\\nId. at *3–6; see also Crutsinger v. Thaler (Crutsinger I), No. 4:07-CV-703-Y,\\n2012 WL 369927, at *4–13 (N.D. Tex. Feb. 6, 2012). As the court rightly em-\\nphasized, Crutsinger’s “assertions that the denial of funding precluded a true\\nmerits review and that trial counsel’s representation was egregious, border on\\nfrivolous.” Crutsinger V, 2019 WL 3749530, at *3. Neither of these factors\\nsupports his claim that extraordinary circumstances justify reopening.\\n\\n The district court concluded that Ayestas’s abrogation of Crutsinger v.\\nStephens (Crutsinger II), 576 F. App’x 422 (5th Cir. 2014), cert. denied,\\n\\n\\n 9 Moreover, here, as was true in Johnson, Crutsinger fails to offer “any authority that\\n[§] 3599 has ever provided relief pursuant to Rule 60(b).” 2019 WL 3814384, at *4.\\n 8\\n\\n Case: 19-70012 Document: 00515092419 Page: 9 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\n135 S. Ct. 1401 (2015), did not support a finding of extraordinary circum-\\nstances because Ayestas “emphasize[d] that there was no error in this case\\nbefore Trevino.” Crutsinger V, 2019 WL 3749530, at *6. Lastly, the court\\nconcluded, even “[a]ssuming Crutsinger has exhibited due diligence, he fails to\\nprovide authority that diligence plus a change in law are sufficient in death-\\npenalty cases to reopen a judgment under Rule 60(b)(6).” 10\\n\\n Ultimately, the changes in decisional law, even when viewed in conjunc-\\ntion with these additional factors, fail to establish extraordinary circumstances\\nwarranting relief from the judgment. Therefore, the district court did not\\nabuse its discretion in denying the Rule 60(b) motion. Because jurists of reason\\nwould not debate this conclusion, particularly in light of Supreme Court and\\nFifth Circuit precedent, Crutsinger is not entitled to a COA.\\n\\n III.\\n A.\\n As discussed in Crutsinger IV, 930 F.3d at 706, “a stay of execution is an\\nequitable remedy. It is not available as a matter of right, and equity must be\\nsensitive to the [s]tate’s strong interest in enforcing its criminal judgments\\nwithout undue interference from the federal courts.” 11 We evaluate four\\n\\n\\n\\n 10 Id. The district court went a step further: Acknowledging the Crutsinger III dis-\\nsent’s concerns, 929 F.3d at 266–71 (Graves, J., dissenting), the court reviewed Crutsinger’s\\n§ 3599(f) request under Ayestas. Crutsinger V, 2019 WL 3749530, at *6–9.\\n In Ayestas, 138 S. Ct. at 1094, the Court noted that “the ‘reasonably necessary’ test\\nrequires an assessment of the likely utility of the services requested, and § 3599(f) cannot be\\nread to guarantee that an applicant will have enough money to turn over every stone.”\\nTherefore, the district court stressed, proper application of the test required it to consider:\\n(1) “the potential merit of the claim that Crutsinger wants to pursue,” Crutsinger V, 2019 WL\\n3749530, at *7; (2) “the likelihood that the services will generate useful and admissible evi-\\ndence,” id.; and (3) “the prospect that Crutsinger will be able to clear any procedural hurdles\\nstanding in the way,” id. Finding that Crutsinger failed to meet that standard, the court\\ndenied funding. Id. at *9.\\n 11 Hill v. McDonough, 547 U.S. 573, 584 (2006); see also Sepulvado v. Jindal, 729 F.3d\\n 9\\n\\n Case: 19-70012 Document: 00515092419 Page: 10 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nfactors. 12 First, “whether the stay applicant has made a strong showing that\\nhe is likely to succeed on the merits.” Charles, 612 F. App’x at 218 n.7 (citation\\nomitted). Second, “whether the applicant will be irreparably injured absent a\\nstay.” Id. (citation omitted). Third, “whether issuance of the stay will substan-\\ntially injure the other parties interested in the proceeding.” Id. (citation omit-\\nted). And fourth, “the public interest.” Id. (citation omitted).\\n\\n “The first two factors of the traditional standard are the most critical. It\\nis not enough that the chance of success on the merits be better than negligi-\\nble.” Nken, 556 U.S. at 434 (internal quotation marks and citation omitted).\\n“Once an applicant satisfies the first two factors, the traditional stay inquiry\\ncalls for assessing the harm to the opposing party and weighing the public\\ninterest.” Id. at 435. “These factors merge when the [state] is the opposing\\nparty.” Id. “[C]ourts must be mindful that the [state’s] role as the respondent\\nin every . . . proceeding does not make the public interest in each individual\\none negligible.” Id.\\n\\n B.\\n Crutsinger asserts that we should grant a stay because he was forced “to\\nfile a habeas corpus application . . . without the provision of high-quality repre-\\nsentation guaranteed to him by 18 U.S.C. § 3599.” Citing Lonchar v. Thomas,\\n517 U.S. 314 (1996), Crutsinger avers that he cannot “be executed until the\\nmerits of his initial habeas corpus application have been meaningfully adjudi-\\ncated.” He notes that Barefoot v. Estelle, 463 U.S. 880 (1983), mandates “mean-\\ningful appellate review for any issue” on which we grant a COA.\\n\\n\\n\\n\\n413, 420 (5th Cir. 2013).\\n 12Murphy v. Collier, 919 F.3d 913, 915 (5th Cir. 2019) (per curiam); Charles v.\\nStephens, 612 F. App’x 214, 218 n.7 (5th Cir. 2015) (per curiam); see also Nken v. Holder,\\n556 U.S. 418, 425–26 (2009).\\n 10\\n\\n Case: 19-70012 Document: 00515092419 Page: 11 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\n As he did in his initial motion for a stay of execution, Crutsinger IV,\\n930 F.3d at 708, Crutsinger contends that he “may not be executed until he\\nhas been afforded the representation in federal collateral proceedings that he\\nis due under . . . § 3599.” Without an “appropriate post-conviction investiga-\\ntion,” he “remains exposed to the substantial risk that meritorious habeas\\ncorpus claims will never be heard.”\\n\\n C.\\n Despite his familiarity with our standard for a stay of execution, see\\nCrutsinger IV, 930 F.3d at 706–09, Crutsinger does not even attempt to engage\\nwith the four equitable factors. In any event, it is moot: As was the case in\\nCrutsinger IV, 930 F.3d at 706−07, he fails to establish a likelihood of success\\non the merits. That failure “is, effectively, dispositive of the motion for stay.”\\nId. at 707.\\n\\n Moreover, the arguments raised by Crutsinger, which essentially echo\\nthose he raised in Crutsinger IV, do not support granting a stay. Lonchar and\\nBarefoot stand for the unremarkable proposition that a petitioner may not be\\nexecuted before a court has reviewed the merits of his habeas petition. Lon-\\nchar, 517 U.S. at 319–20. Crutsinger received such a review more than seven\\nyears ago. Crutsinger I, 2012 WL 369927, at *4–13; see also Crutsinger II,\\n576 F. App’x at 425–31. As part of that review, he was given a full and fair\\nopportunity to litigate the merits of his habeas petition. Crutsinger V, 2019\\nWL 3749530, at *3–6. Any claim to contrary is baseless. Id. at *3. Moreover,\\nCrutsinger’s continued insistence that he is entitled to § 3599(f) funding is\\nfalse. Such funding is discretionary. 13\\n\\n Crutsinger’s reliance on McFarland v. Scott, 512 U.S. 849, 858 (1994),\\n\\n\\n 13 Ayestas, 138 S. Ct. at 1094 (“Congress has made it clear, however, that district\\ncourts have broad discretion in assessing requests for funding.”).\\n 11\\n\\n Case: 19-70012 Document: 00515092419 Page: 12 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n\\nand Battaglia v. Stephens, 824 F.3d 470, 475 (5th Cir. 2016), is similarly\\nmisplaced. Those cases provide only that (1) a capital defendant must “have\\nsufficient time to request the appointment of counsel and file a formal habeas\\npetition prior to his scheduled execution,” McFarland, 512 U.S. at 858, and\\n(2) newly appointed counsel, if chosen for a defendant who effectively lacked\\nhabeas counsel, must be given time to develop a habeas claim for the appoint-\\nment to be meaningful, Battaglia, 824 F.3d at 475–76. “Crutsinger, however,\\nhas been well-represented by his counsel for approximately eleven years,” and\\nhe would not, as in McFarland or Battaglia, “be deprived of meaningful counsel\\nabsent a stay.” Crutsinger IV, 930 F.3d at 708. Lastly, “[e]ven if Crutsinger\\ncould establish a likelihood of success on the merits—which he cannot—the\\nother [equitable] factors weigh in favor of the state.” Id. at 709.\\n\\n We take seriously “a [s]tate’s strong interest in the timely enforcement\\nof valid judgments of its courts.” 14 “Equity must be sensitive to the [s]tate’s\\nstrong interest in enforcing its criminal judgments without undue interference\\nfrom the federal courts.” Crutsinger IV, 930 F.3d at 709 (citation omitted).\\nCrutsinger’s motion for a stay of execution is therefore denied.\\n\\n In summary, the motion for a COA and the motion for stay of execution\\nare DENIED.\\n\\n\\n\\n\\n 14Murphy v. Collier, 139 S. Ct. 1475, 1481 (2019) (Alito, J., dissenting); see also In re\\nBlodgett, 502 U.S. 236, 239 (1992) (per curiam).\\n 12\\n\\n Case: 19-70012 Document: 00515092419 Page: 13 Date Filed: 08/26/2019\\n\\n\\n No. 19-70012\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":3699,"cells":{"id":{"kind":"number","value":4656601,"string":"4,656,601"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Alexis Aguilar-Alonzo"},"decision_date":{"kind":"string","value":"2019-08-27"},"docket_number":{"kind":"string","value":"18-50627"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Fifth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before SMITH, WIENER, and ELROD, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JENNIFER WALKER ELROD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-50627 Document: 00515093656 Page: 1 Date Filed: 08/27/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-50627 FILED\\n August 27, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff – Appellee,\\n\\nv.\\n\\nALEXIS AGUILAR-ALONZO,\\n\\n Defendant – Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nJENNIFER WALKER ELROD, Circuit Judge:\\n Alexis Aguilar-Alonzo pleaded guilty to aiding and abetting the\\npossession with intent to distribute marijuana. The district court imposed a\\ntwo-level enhancement to Aguilar-Alonzo’s base offense level under U.S.S.G.\\n§ 2D1.1(b)(15)(A) (2016) for “us[ing] fear, impulse, friendship, affection, or\\nsome combination thereof to involve another individual” in the offense.\\nAguilar-Alonzo appeals, contending that the evidence does not support the two-\\nlevel enhancement and that the district court clearly erred in applying the\\nenhancement. We agree and VACATE and REMAND.\\n\\n Case: 18-50627 Document: 00515093656 Page: 2 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\n I.\\n Aguilar-Alonzo, his girlfriend Yudilet Chavez-Hernandez, and eight\\nothers were charged with aiding and abetting the possession with intent to\\ndistribute more than 100 kilograms of marijuana but less than 1000 kilograms\\nin violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Aguilar-Alonzo pleaded\\nguilty without a plea agreement.\\n After her arrest, Chavez-Hernandez told investigators that “she had\\nbeen dating Aguilar-Alonzo for approximately one year and . . . knew [he] was\\ninvolved in drug trafficking,” but that she had never participated in “picking\\nup a load of narcotics” herself prior to this offense. This time, Aguilar-Alonzo\\nrequested that she accompany him “to pick up the [marijuana].” She told the\\ninvestigators that she agreed to participate “out of fear he would break up with\\nher.”\\n The presentence investigation report (PSR) calculated a base offense\\nlevel of 24 under the 2016 Sentencing Guidelines §§ 2D1.1(a)(5) and (c)(8). It\\nrecommended a two-level enhancement under § 3B1.1(c) of the Guidelines\\nbecause Aguilar-Alonzo “was an organizer, leader, manager, or supervisor.”\\nBecause of this two-level enhancement for leadership, the PSR recommended\\nan additional two-level enhancement for two independent reasons. First,\\nAguilar-Alonzo “us[ed] friendship or affection to involve [Chavez-Hernandez]\\nin the illegal transport of controlled substance[s], [Chavez-Hernandez]\\nreceived little or no compensation [from] the transport of the controlled\\nsubstances, and [Chavez-Hernandez] had minimal knowledge of the scope and\\nstructure of the enterprise.” See U.S.S.G. § 2D1.1(b)(15)(A) (2016). 1 Second,\\nAguilar-Alonzo, “knowing that [Chavez-Hernandez] was pregnant, involved\\n\\n\\n\\n 1This section has been renumbered as § 2D1.1(b)(16)(A) effective November 1, 2018,\\nbut the language remains the same.\\n 2\\n\\n Case: 18-50627 Document: 00515093656 Page: 3 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\n[her] in the offense.” See § 2D1.1(b)(15)(B)(iii). With a three-level reduction\\nfor acceptance of responsibility under § 3E1.1(a) and (b), Aguilar-Alonzo’s total\\noffense level was 25. Based on the offense level of 25 and a criminal history\\ncategory of II, the Guidelines range was 63 to 78 months of imprisonment.\\n Aguilar-Alonzo objected to the two-level enhancement for use of\\naffection, asserting that “Chavez-Hernandez had more [than minimal]\\nknowledge” of the scope and structure of the criminal enterprise and that\\nmerely being “in a dating relationship does not trigger” that enhancement. The\\nprobation officer asserted that the requirements for the enhancement were\\nsatisfied. Regarding use of affection, the probation officer noted that\\n(1) “Chavez-[Hernandez] was engaged in a romantic relationship with\\n[Aguilar-Alonzo],” (2) Aguilar-Alonzo “was aware Chavez-[Hernandez] was\\npregnant with his child at the time of the instant offense,” and (3) “Chavez-\\n[Hernandez] agreed to help [Aguilar-Alonzo] as she feared [he] would\\nterminate his relationship with her.”\\n At sentencing, Aguilar-Alonzo contended that nothing in the record\\nindicated that he “made any kind of action or said any words” suggesting that\\nhe would end the relationship if she refused to participate in the offense.\\nAguilar-Alonzo asserted that, even though she may have felt that way, he\\n“ha[d] to make some sort of actual action or words” to be eligible for the\\nenhancement. In addition, Aguilar-Alonzo contended that Chavez-Hernandez\\nhad more than minimal knowledge of the scope and structure of the enterprise:\\n“[S]he knew [that] he was involved in drug trafficking,” she saw him pick up\\nand unload drugs in the past, and she then agreed to participate in the offense\\nfollowing his request.\\n Aguilar-Alonzo also objected to the second independent basis for the two-\\nlevel enhancement, claiming it was unwarranted under § 2D1.1(b)(15)(B)\\nbecause “it [was] unclear whether [Aguilar-Alonzo] knew at the time of the\\n 3\\n\\n Case: 18-50627 Document: 00515093656 Page: 4 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\noffense that [Chavez-Hernandez] was pregnant.” Aguilar-Alonzo asserted that\\n“he didn’t find out until she was arrested,” at which point she called from jail\\nto tell him “I think I just found out I’m pregnant,” and that he had a letter from\\nher to him explaining “[she] wish[ed she] would have told [him] that [she] was\\npregnant.” The prosecutor conceded that the government did not have\\nevidence proving that Aguilar-Alonzo knew of Chavez-Hernandez’s pregnancy\\nat the time of the offense.\\n The district court explicitly found that the facts did not establish\\nwhether Aguilar-Alonzo knew, at the relevant time of the offense, that Chavez-\\nHernandez was pregnant and declined to sustain the enhancement under\\n§ 2D1.1(b)(15)(B). Nevertheless, the district court determined that the two-\\nlevel enhancement was warranted under § 2D1.1(b)(15)(A) because it was\\n“apparent from the facts . . . that [Aguilar-Alonzo] used fear, impulse,\\nfriendship, affection, or some combination thereof to involve [Chavez-\\nHernandez]” in the offense. The court overruled Aguilar-Alonzo’s objection to\\nthe enhancement for a leadership role. With this two-level enhancement for\\nthe use of affection, the total offense level was 25, resulting in a Guidelines\\nrange of 63 to 78 months. The district court declined to depart from the\\nGuidelines recommendation and sentenced Aguilar-Alonzo to 70 months of\\nimprisonment and 5 years of supervised release.\\n On appeal, Aguilar-Alonzo challenges only the two-level enhancement\\nunder § 2D1.1(b)(15)(A), asserting that the district court clearly erred in\\nconcluding that he “used fear, impulse, friendship, affection, or some\\ncombination thereof to involve” Chavez-Hernandez in the offense because\\n“[t]he [G]uideline’s plain language requires active employment of affection to\\ninduce another to participate in the offense,” but “[n]o evidence supported a\\nfinding that Aguilar[-Alonzo] actively induced Chavez[-Hernandez’s]\\nparticipation by playing on affection.” Aguilar-Alonzo further argues that this\\n 4\\n\\n Case: 18-50627 Document: 00515093656 Page: 5 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nerror prejudiced him because, without the erroneous two-level enhancement,\\nhis Guidelines range would have been 60 to 63 2 months, and there is no\\nindication that the district court would have imposed the same 70-month\\nsentence if it had considered the lower range.\\n II.\\n “To preserve error, an objection must be sufficiently specific to alert the\\ndistrict court to the nature of the alleged error and to provide an opportunity\\nfor correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). At\\nthe sentencing hearing, Aguilar-Alonzo argued that he did not take any action\\nor make any statement that would have led Chavez-Hernandez to believe that\\nhe would end the relationship if she refused to participate in the offense. His\\nargument was sufficiently specific to alert the district court to the nature of\\nthe issue raised on appeal. See Neal, 578 F.3d at 272.\\n “We review the district court’s interpretation and application of the\\nGuidelines de novo, and its factual findings for clear error.” United States v.\\nZuniga, 720 F.3d 587, 590 (5th Cir. 2013). “A finding is ‘clearly erroneous’\\nwhen although there is evidence to support it, the reviewing court on the entire\\nevidence is left with the definite and firm conviction that a mistake has been\\ncommitted.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The\\nproponent of an adjustment to the defendant’s base offense level bears the\\nburden of establishing the factual predicate “by a preponderance of the\\nrelevant and sufficiently reliable evidence.” United States v. Richardson, 781\\nF.3d 237, 249 (5th Cir. 2015) (quoting United States v. Alfaro, 919 F.2d 962,\\n965 (5th Cir. 1990)).\\n\\n\\n\\n\\n Aguilar-Alonzo’s brief states 60 to 71 months, but the proper calculation yields 60 to\\n 2\\n\\n63 months.\\n 5\\n\\n Case: 18-50627 Document: 00515093656 Page: 6 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\n “Where . . . the district court commits a significant procedural error such\\nas miscalculating the Guidelines range, we must vacate the sentence unless\\nthe error did not affect the selection of the sentence imposed.” Neal, 578 F.3d\\nat 274. “The proponent of the sentence has the burden of establishing that the\\nerror was harmless.” Id.\\n III.\\n On appeal, Aguilar-Alonzo only challenges the district court’s two-level\\nenhancement under U.S.S.G. § 2D1.1(b)(15)(A) (2016), which reads:\\n If the defendant receives an adjustment under § 3B1.1 . . . and[:]\\n (i) The defendant used fear, impulse, friendship, affection, or some\\n combination thereof to involve another individual in the illegal\\n purchase, sale, transport, or storage of controlled substances, (ii)\\n the individual received little or no compensation from the illegal\\n purchase, sale, transport, or storage of controlled substances, and\\n (iii) the individual had minimal knowledge of the scope and\\n structure of the enterprise . . . increase by 2 levels.\\nThe district court concluded that all three parts of this Guideline were met and\\napplied the two-level increase. Aguilar-Alonzo specifically challenges the\\ndistrict court’s finding that he “used affection to involve . . . [Chavez-\\nHernandez] in the” offense under part (i) of the Guideline quoted above.\\nAguilar-Alonzo contends that it was clear error for the district court to apply\\nthis enhancement and that the error prejudiced him by resulting in a greater\\nsentence than the court would have otherwise imposed. In order to resolve this\\ncase, we must determine the proper interpretation of the term “used” in the\\nGuideline, ascertain whether it was clear error for the district court to apply\\nthe enhancement in light of our interpretation of the word, and determine\\nwhether any error was harmless.\\n A.\\n Aguilar-Alonzo and the government dispute both the proper\\ninterpretation of the verb “used” in the context of the Guidelines and the\\n\\n 6\\n\\n Case: 18-50627 Document: 00515093656 Page: 7 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\napplication of that interpretation to these facts. Aguilar-Alonzo contends that\\n“[t]he plain language of [§ 2D1.1(b)(15)(A) requires] that a defendant must\\nactively employ or play upon affection to induce another to commit [an]\\noffense.” Alternatively, the government argues that “used” encompasses a\\nbroader definition, including “passively exploiting another’s affection.” We\\nagree with Aguilar-Alonzo’s interpretation of “used” under the Guidelines.\\n We interpret the Sentencing Guidelines according to “the typical rules of\\nstatutory interpretation,” “[s]tarting with the text of the relevant guideline[.]”\\nUnited States v. Stanford, 883 F.3d 500, 511 (5th Cir. 2018). “If the language\\nis unambiguous, and does not lead to an ‘absurd result,’ the court’s inquiry\\nbegins and ends with the plain meaning of that language.” Id. (quoting United\\nStates v. Koss, 812 F.3d 460, 473 (5th Cir. 2016)). “When a word is not defined\\nby statute, we normally construe it in accord with its ordinary or natural\\nmeaning.” Smith v. United States, 508 U.S. 223, 228 (1993).\\n In a variety of criminal statutory contexts, we have consistently\\ninterpreted the ordinary and natural meaning of the verb “use” to require\\nactive employment of something, as has the Supreme Court. For example, the\\nSupreme Court explained that proof of “use” in “[18 U.S.C.] § 924(c)(1) requires\\nevidence sufficient to show an active employment of the firearm by the\\ndefendant, a use that makes the firearm an operative factor in relation to the\\npredicate offense.” Bailey v. United States, 516 U.S. 137, 143 (1995),\\nsuperseded by statute on other grounds as stated in Welch v. United States, 136\\nS. Ct. 1257 (2016). In Jones v. United States, the Supreme Court determined\\nthat 18 U.S.C. § 844’s requirement “that [a] building be ‘used’ in an activity\\naffecting commerce” was “most sensibly read to mean active employment for\\ncommercial purposes, and not merely a passive, passing, or past connection to\\ncommerce.” 529 U.S. 848, 855 (2000). This interpretation of “use” has been\\n\\n\\n 7\\n\\n Case: 18-50627 Document: 00515093656 Page: 8 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nreaffirmed many times. 3 The proper interpretation of “used” under the\\nGuideline requires active employment of affection in return for involvement in\\nthe offense, and that interpretation is consistent with the previous\\ninterpretations discussed above.\\n The only other circuit court of appeals decision to address the “used . . .\\naffection” provision of § 2D1.1(b)(15)(A) is consistent with our interpretation of\\nthe word. The Third Circuit, in United States v. Best, affirmed the district\\ncourt’s two-level enhancement for Best’s use of affection to involve his\\ngirlfriend in a drug trafficking offense. 639 F. App’x 848, 853–54 (3rd Cir.\\n2016). At trial, “Best admitted . . . that he convinced [his girlfriend] to steal\\npills and blank prescriptions by telling her that he loved her[,]” “that she was\\nnever in trouble before meeting him[,]” and “that if not for him, [his girlfriend]\\n‘wouldn’t be here,’ facing criminal charges.” Id. at 853. In that case, Best was\\nheld subject to the two-level enhancement after he explicitly told his girlfriend\\nthat he loved her for the purpose of getting her to steal pills for him. Best\\nsupports our interpretation of “use” under § 2D1.1(b)(15)(A) (2016) as\\nrequiring active employment of affection on the part of the defendant.\\n B.\\n We next address whether it was clear error for the district court to apply\\nthe two-level enhancement under the Guidelines. “A finding is ‘clearly\\nerroneous’ when although there is evidence to support it, the reviewing court\\non the entire evidence is left with the definite and firm conviction that a\\n\\n\\n\\n\\n 3 E.g., Smith, 508 U.S. at 229 (reaffirming earlier precedent defining “use” as “to\\nemploy’ or ‘to derive service from’” (quoting Astor v. Merritt, 111 U.S. 202, 213 (1884)); see\\nalso Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (“As we said in a similar context in Bailey, ‘use’\\nrequires active employment.”); United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir.\\n2001) (“[U]se’ refers to volitional, purposeful, not accidental, employment of whatever is being\\n‘used.’”), overruled on other grounds by United States v. Reyes-Contreras, 910 F.3d 169 (5th\\nCir. 2018) (en banc).\\n 8\\n\\n Case: 18-50627 Document: 00515093656 Page: 9 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nmistake has been committed.” U.S. Gypsum Co., 333 U.S. at 395. As the\\nproponent of the adjustment to Aguilar-Alonzo’s base offense level, the\\ngovernment bears the burden of establishing the factual predicate of that\\nadjustment “by a preponderance of the relevant and sufficiently reliable\\nevidence.” Richardson, 781 F.3d at 249 (citation omitted). The government\\nfails to meet this burden. After reviewing the evidence, we are left with the\\ndefinite and firm conviction that the district court committed error by applying\\nthe two-level enhancement for use of affection.\\n Under our interpretation of the verb “used” in § 2D1.1(b)(15)(A), the\\nevidence in the record does not support a two-level enhancement to Aguilar-\\nAlonzo’s offense level because he did not actively employ or play upon affection\\nto induce involvement by Chavez-Hernandez in the offense. The evidence\\nconsists of two primary facts, neither of which support a finding that Aguilar-\\nAlonzo actively used affection to induce Chavez-Hernandez’s involvement in\\nthe offense. First, Aguilar-Alonzo asked Chavez-Hernandez to participate in\\nthe offense. Second, Chavez-Hernandez asserted that she agreed to participate\\n“out of fear [Aguilar-Alonzo] would break up with her” if she did not\\nparticipate.\\n The government essentially argues that, just because Aguilar-Alonzo\\nhad the opportunity to use affection to recruit his girlfriend, we should assume\\nthat he did, despite the lack of evidentiary support. The government attempts\\nto support this result by emphasizing that Chavez-Hernandez had no previous\\ninvolvement in criminal activity, had little to gain financially from the crime,\\nand had a limited role in the crime. However, the government offered no\\nsupport for the proposition that Aguilar-Alonzo did something or said\\nsomething to cajole or force her to help him. Her fear that Aguilar-Alonzo\\nwould break up with her was simply her own subjective assessment of the\\nsituation. We see no indication that Aguilar-Alonzo actually did or said\\n 9\\n\\n Case: 18-50627 Document: 00515093656 Page: 10 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nanything about their relationship when he asked her to help him. There is\\nnothing in the record whatsoever that indicates Aguilar-Alonzo even knew of\\nChavez-Hernandez’s subjective fear that he might break up with her but for\\nher involvement in the offense. “No evidence suggests that [Aguilar-Alonzo]\\ncajoled, wheedled, threatened a breakup, or otherwise actively played on\\n[Chavez-Hernandez’s] affection or emotions about the relationship.” Perhaps,\\nif Aguilar-Alonzo knew of this fear prior to his request for Chavez-Hernandez’s\\ninvolvement, a finding that he used affection may be appropriate. That is not\\nthe case here. Chavez-Hernandez’s own subjective assessment cannot be solely\\nrelied on as evidence that Aguilar-Alonzo used affection to induce her\\ninvolvement.\\n It cannot be that the mere existence of a romantic, familial, or any other\\nkind of pre-existing relationship would support a two-level enhancement under\\n§ 2D1.1(b)(15)(A) when one person, who fits the other criteria under the\\nGuidelines, recruits another to assist in the offense. Aside from the existence\\nof the relationship and Chavez-Hernandez’s subjective fear of a breakup, there\\nis nothing in the record that could even possibly relate to use of affection.\\n Neither does Chavez-Hernandez’s pregnancy support the conclusion that\\nAguilar-Alonzo actively used affection to involve her in the offense. The district\\ncourt explicitly found that the facts did not establish whether Aguilar-Alonzo\\nknew, at the relevant time of the offense, that Chavez-Hernandez was\\npregnant. The fact that Aguilar-Alonzo and Chavez-Hernandez at some point\\nhad a sexual relationship, without more, is not enough to establish that\\nAguilar-Alonzo “actively employed” affection to involve her in the offense.\\n The Third Circuit’s opinion in Best well illustrates why the facts of the\\ninstant case do not support the same two-level use of affection enhancement.\\nSee 639 F. App’x at 853–84. Unlike in Best, no record evidence demonstrates\\nthat Aguilar-Alonzo actively employed affection to induce involvement by\\n 10\\n\\n Case: 18-50627 Document: 00515093656 Page: 11 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nChavez-Hernandez. In Best, the defendant told his girlfriend that he loved her\\nin order to convince her to steal pills and blank prescriptions. Id. at 853. In\\nthe present case, Aguilar-Alonzo simply asked Chavez-Hernandez for her help.\\nWe see nothing in the record that indicates Aguilar-Alonzo actively employed\\nthe continuation of their relationship in return for Chavez-Hernandez’s\\ninvolvement in the offense. Aside from adopting the PSR, which stated that\\nChavez-Hernandez agreed to participate in the offense out of fear that Aguilar-\\nAlonzo would break up with her—an uncommunicated, subjective feeling—the\\ndistrict court did not identify how Aguilar-Alonzo actively employed affection\\nto induce involvement by Chavez-Hernandez in the offense. We therefore have\\na firm and definite conviction that an error has been made by the district court\\nin applying the two-level enhancement for use of affection.\\n C.\\n “Where . . . the district court commits a significant procedural error such\\nas miscalculating the Guidelines range, we must vacate the sentence unless\\nthe error did not affect the selection of the sentence imposed.” Neal, 578 F.3d\\nat 274. “The proponent of the sentence has the burden of establishing that the\\nerror was harmless.” Id. As the proponent of the sentence, the government\\nalso bears the burden of establishing that the error of applying the two-level\\nenhancement was harmless to Aguilar-Alonzo. The government fails to\\naddress harmlessness of the error in its brief. Accordingly, any argument as\\nto harmlessness is forfeited. However, even if we were to consider the issue,\\nthe district court’s error was not harmless.\\n The district court determined that Aguilar-Alonzo’s total offense level\\nwas 25. With a criminal history category of II, this offense level yielded a\\nGuidelines range of 63 to 78 months of imprisonment. Without the two-level\\nenhancement under § 2D1.1(b)(15)(A), Aguilar-Alonzo’s total offense level\\nwould have been 23, yielding a Guidelines range of 60–63 months of\\n 11\\n\\n Case: 18-50627 Document: 00515093656 Page: 12 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nimprisonment. 4 The district court’s sentence of 70 months of imprisonment is\\nentirely outside the appropriate Guidelines range. The record lacks evidence\\nthat the court intended to increase Aguilar-Alonzo’s sentence beyond the\\nGuidelines range. In fact, the district judge, at the sentencing hearing, stated\\nthat he intended to remain within the recommended Guidelines range.\\nConsequently, the district court’s error in imposing the § 2D1.1(b)(15)(A)\\nenhancement affected the court’s selection of the sentence it imposed.\\nAccordingly, the error was not harmless, as it affected Aguilar-Alonzo’s\\n“substantial rights.” See Fed. R. Crim. P. 52(a).\\n IV.\\n For the foregoing reasons, we VACATE Aguilar-Alonzo’s sentence and\\nREMAND for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 4 See U.S.S.G. ch. 5 pt. A (2016) (Sentencing Table). Absent additional factors, a total\\noffense level of 23 together with a criminal history category of II yields a Guidelines range of\\n51 to 63 months’ imprisonment. However, Aguilar-Alonzo’s statute of conviction, 21 U.S.C.\\n§ 841, requires a mandatory minimum sentence of 60 months’ (5 years) imprisonment for his\\noffense. See id. § 841(b)(1)(B). Consequently, under U.S.S.G. § 5G1.1(c), the lower end of the\\ncorrect Guidelines range would be 60 months, the “statutorily required minimum sentence,”\\ninstead of 51 months.\\n 12\\n\\n Case: 18-50627 Document: 00515093656 Page: 13 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4433854/\", \"author_raw\": \"JENNIFER WALKER ELROD, Circuit Judge:\"}, {\"author\": \"JERRY E. SMITH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JERRY E. SMITH, Circuit Judge, dissenting:\\n\\n The majority’s rejection of Judge Counts’s factual finding is error under\\nthe correct standard of review. It’s a puzzlement that the majority doesn’t even\\nmention that proper standard, given that both of the judges in the majority are\\nwell aware of it. Because Aguilar-Alonzo can’t prevail under that standard or\\nunder the equally valid standard that the majority employs, I respectfully\\ndissent.\\n\\n At sentencing, “[a] factual finding is not clearly erroneous as long as it is\\nplausible in light of the record as a whole.” United States v. Dinh, 920 F.3d\\n307, 310 (5th Cir. 2019) (Elrod, J.). 1 Although the government carefully and\\naccurately recites this standard, Aguilar-Alonzo’s counsel, an experienced for-\\nmer federal public defender, does not, presumably because it’s impossible for\\nhim to prevail in light of it.\\n\\n The long and short of it is that, at least at sentencing, a defendant can’t\\nestablish clear error without showing, as a necessary condition, that the dis-\\ntrict judge’s factual finding is “implausible.” Black’s Law Dictionary defines\\n“plausible” as “[c]onceivably true,” “possibly correct or even likely,” “reasona-\\nble.” 2 That standard should be read in tandem with the standard that the\\nmajority accurately describes: “A finding is ‘clearly erroneous’ when although\\nthere is evidence to support it, the reviewing court on the entire evidence is left\\n\\n\\n\\n\\n 1 “There is no clear error if the district court’s [factual] finding is plausible in light of\\nthe record as a whole.” United States v. Montgomery, 747 F.3d 303, 311 (5th Cir. 2014)\\n(Elrod, J.) (sentencing) (brackets in original). “A factual finding is not clearly erroneous so\\nlong as it is plausible in light of the record as a whole.” United States v. Mauskar, 557 F.3d\\n219, 232 (5th Cir. 2009) (Elrod, J.) (sentencing). “There is no clear error if the district court’s\\nfinding is plausible in light of the record as a whole.” United States v. Serfass, 684 F.3d 548,\\n550 (5th Cir. 2012) (Wiener, J.) (sentencing).\\n 2 Plausible, BLACK’S LAW DICTIONARY (10th ed. 2014).\\n 13\\n\\n Case: 18-50627 Document: 00515093656 Page: 14 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nwith the definite and firm conviction that a mistake has been committed.” 3\\nAguilar-Alonzo’s challenge fails under either standard, applied separately, and\\neven more so under both.\\n\\n The facts are that the defendant was twenty-one; his girlfriend was nine-\\nteen. He lived in a travel trailer behind her parents’ house. They had been\\ndating at least a year and had had sexual intercourse. She knew she was preg-\\nnant; the district judge declined to find, one way or the other, whether the\\ndefendant knew that. 4 But it is undisputed that he remembered the carnal\\nknowledge, and no evidence suggests that the relationship was still anything\\nbut close. As the majority explains, the defendant “requested that she accom-\\npany him ‘to pick up the [marijuana].’ She told investigators that she agreed\\nto participate ‘out of fear he would break up with her.’”\\n\\n All agree that the sole question is whether “the defendant used fear . . .\\n[or] affection 5 . . . to involve” his girlfriend in the illegal activity. To answer\\nthat, we don’t consider whether, on the best view of the evidence, the defendant\\ndid or didn’t use affection. That is hardly our role on appeal. To the contrary,\\nwe ask only whether it is plausible—that is, “conceivably true,” “possibly\\ncorrect,” or “reasonable” 6—that the defendant did so. If it is any of those three,\\nwe must affirm.\\n\\n I won’t waste much space to recount that at federal sentencing, the evi-\\ndentiary rules are considerably relaxed. For example, the sentencing judge\\n\\n\\n\\n 3 Citation and internal quotation marks omitted.\\n At sentencing, the probation officer testified that the defendant “did explain that he\\n 4\\n\\nknew she was pregnant at the time that the offense was committed.”\\n 5 In this case, the concepts of fear and affection are intertwined. There’s no suggestion\\nthat fear was used in the sense of physical threats or intimidation. Her fear, specifically, was\\nthat he would end the romantic relationship.\\n 6 BLACK’S LAW DICTIONARY, supra.\\n 14\\n\\n Case: 18-50627 Document: 00515093656 Page: 15 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\ncan consider hearsay and a wide range of circumstantial evidence, and the de-\\nfendant has no right to confront witnesses or conduct cross-examination. The\\njudge can make inferences from the evidence he hears and can apply reason\\nand experience. And he can rely on the findings in the presentence report.\\n\\n At a minimum, the judge knew that the couple was in a one-year roman-\\ntic relationship that wasn’t on the wane. They had had sexual relations, and\\nthe girlfriend knew she was pregnant. She was only nineteen. She told the\\nprobation officer that she had “agreed to [defendant’s] request [to assist him]\\nout of fear he would break up with her.”\\n\\n From these bare facts, do we know, for a certainty, that asking his\\ngirlfriend to help with the crime was a threat to break up with her, leaving her\\nwith an unborn child and without a companion, if she refused? We do not, and\\nneither did the district judge. But what we do know (for a certainty) is that\\nshe felt that way. And nothing even remotely suggests that that feeling was\\nunfounded. Her fear that the defendant would end the relationship is based\\non all the circumstances of which she was aware. That is her reading of their\\ncommunications. It is unrefutable circumstantial evidence of the direct evi-\\ndence that is absent from this record: that the defendant made a threat to end\\nthe romance if his girlfriend didn’t assist. 7\\n\\n To prevail on appeal, the defendant must convince this court that the\\n\\n\\n\\n 7 The government helpfully explains it this way:\\n Additional circumstantial evidence supported the district court’s finding.\\n [The girlfriend’s] expression of fear that she might lose the relationship if she\\n declined his request should not be dismissed as a mere expression of her state\\n of mind. It reflected and implied action on [defendant’s] part, even if it was\\n subtle and not revealed during the presentence investigation. Just as seeing\\n one flinch circumstantially evidences an assailant’s raised fist, her expression\\n of concern about the relationship circumstantially pointed to [defendant’s] use\\n of her affection to involve her in his crime.\\n 15\\n\\n Case: 18-50627 Document: 00515093656 Page: 16 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\ndistrict judge’s inference from the circumstantial evidence is an hallucination\\nthat isn’t “conceivably true,” “possibly correct,” or “reasonable.” To the con-\\ntrary, there is enough reason to believe that the defendant, knowing this young\\nwoman was enamored, chose her, rather than someone else, to supply the\\nbackup help he needed to commit the crime. By deciding as it has, the panel\\nmajority necessarily implies that Judge David Counts engaged in a flight of\\nfancy by entertaining an explanation that is outside the bounds of ordinary\\nreason and human experience and that invents a story that defies logic and\\nhas no basis in the record. Although I’m confident that the majority doesn’t\\nmean to plaster Judge Counts with the accusation that he has lost his senses,\\nthat is the necessary implication of the majority’s analysis, which I had hoped\\nit would reconsider.\\n\\n As I’ve explained, the majority announces another, albeit accurate,\\nstandard of review: that clear error requires us to reach “the definite and firm\\nconviction that a mistake has been committed.” Importantly, that articulation\\nof the standard approaches the facts in a decidedly different way. For the\\nmajority to decide that “a mistake has been committed,” it necessarily declares\\nthat the opposite of the district court’s finding is true: that the defendant did\\nnot ask his girlfriend to help by employing fear or affection. We can acknowl-\\nedge, arguendo, that either finding is believable from these facts. In my view,\\nit’s more likely that he played on their relationship than it is that he picked\\nher out randomly, from among the earth’s inhabitants, to request assistance.\\nBut what I think isn’t the point. By saying “a mistake has been committed,”\\nthe majority imposes a necessary finding of its own: that the defendant didn’t\\nemploy affection or fear.\\n\\n That’s the way the “definite and firm conviction” standard works. The\\ndistrict judge found that the facts are “X,” but we say the facts instead are “Y.”\\n\\n 16\\n\\n Case: 18-50627 Document: 00515093656 Page: 17 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nThe judge found that the traffic light was green, but we, in our appellate wis-\\ndom, read the facts differently and find, by definite and firm conviction, that it\\nwas red. The situation, however, is that we don’t and can’t know for sure, and\\nthat’s why the rules and caselaw defer to the district judge to make that deci-\\nsion, protected by steep deference on appeal after the judge has heard wit-\\nnesses and examined the case in open court.\\n\\n This defendant loses under either articulation of the standard of review.\\nUnder the standard that the majority ignores, it is error to suggest that Judge\\nCounts’s finding of fear or affection is pure fancy in the sense that it is not\\n“conceivably true,” that it is not “possibly correct,” and that it is not “reasona-\\nble.” And under the standard that the majority acknowledges, it is error to say\\nnot only that Judge Counts’s finding is unsupported by the record but also that\\nthe opposite (i.e., no use of fear or affection) is affirmatively true. The majority\\nconfronts none of this, content only to emphasize what it sees as a dearth of\\nfacts, ignoring the relaxed evidentiary procedures and the broad use of circum-\\nstantial evidence and inferences at sentencing. 8\\n\\n * * * * *\\n\\n At bottom, the decision to reject Judge Counts’s factual finding does\\n\\n\\n\\n 8 The majority might retort that my analysis avoids the majority’s holding, as res nova,\\nthat “[t]he proper interpretation of ‘used’ under the Guideline requires active employment of\\naffection in return for involvement in the offense.” That is much ado about nothing.\\n The only case even colorably on point that the majority can find is an unpublished\\nopinion from another circuit, and that decision doesn’t even explicitly articulate the rule that\\nthe majority adopts but only suggests it indirectly and by implication. The majority essen-\\ntially adopts its new rule from whole cloth. As for the facts, the majority protests that “[w]e\\nsee nothing in the record that indicates [the defendant] actively employed the continuation\\nof their relationship in return for [the girlfriend’s] involvement in the offense.” But even\\naccepting, for the sake of argument, the majority’s new “active involvement” test, that is\\neasily satisfied. Asking someone to assist in a crime is active, not passive. The defendant\\nasked his girlfriend because he had chosen her, not someone else. It’s not as though he had\\nrequested an associate to round up a helper, and the associate called upon the girlfriend.\\n 17\\n\\n Case: 18-50627 Document: 00515093656 Page: 18 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\ngrave disservice to the sentencing regime. It undermines the carefully struc-\\ntured assignment of factfinding to an independent Article III judge. The\\ndynamics of federal sentencing are unique. Especially in venues such as Pecos,\\nTexas, where this case is sited, scores of criminal defendants queue up for\\nsentencing hearings on a routine day. The district judge carefully studies the\\npresentence report, hears from the attorneys, and takes allocution. He or she\\nthen makes factual findings and announces a sentence. The evidentiary stan-\\ndards are relaxed for good reason, given the caseload. That is not to say that\\nthe proceedings are inadequate. Much to the contrary. They are the optimum\\nway to make fair and accurate factual decisions and rulings of law in a rela-\\ntively short period of time.\\n\\n Here, the probation office prepared a comprehensive presentence report,\\nwith addenda, totaling more than twenty pages. Judge Counts conducted a\\ntwenty-minute sentencing hearing, with a transcript of seventeen pages, and\\nmade detailed findings, giving ample time for participation. The crush of the\\nsentencing docket can be accommodated by dedicated judges and staff who\\nread and apply the law to the facts. The procedures used to present and\\nincorporate those facts get the job done well. Nitpicking by circuit judges who\\n(with the best of intentions) misunderstand or misapply the standards of\\nreview do not.\\n\\n I respectfully dissent.\\n\\n\\n\\n\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4433854/\", \"author_raw\": \"JERRY E. SMITH, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"SMITH"},"judge2":{"kind":"string","value":"WIENER"},"judge3":{"kind":"string","value":"ELROD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"SMITH\": \", Circuit\", \"WIENER\": \", Circuit\", \"ELROD\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4656601/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":8,"string":"8"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Alexis Aguilar-Alonzo\nCourt: U.S. Court of Appeals for the Fifth Circuit\nDate decided: 2019-08-27\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-50627 Document: 00515093656 Page: 1 Date Filed: 08/27/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n No. 18-50627 FILED\n August 27, 2019\n Lyle W. Cayce\nUNITED STATES OF AMERICA, Clerk\n\n Plaintiff – Appellee,\n\nv.\n\nALEXIS AGUILAR-ALONZO,\n\n Defendant – Appellant.\n\n\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n\n\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\nJENNIFER WALKER ELROD, Circuit Judge:\n Alexis Aguilar-Alonzo pleaded guilty to aiding and abetting the\npossession with intent to distribute marijuana. The district court imposed a\ntwo-level enhancement to Aguilar-Alonzo’s base offense level under U.S.S.G.\n§ 2D1.1(b)(15)(A) (2016) for “us[ing] fear, impulse, friendship, affection, or\nsome combination thereof to involve another individual” in the offense.\nAguilar-Alonzo appeals, contending that the evidence does not support the two-\nlevel enhancement and that the district court clearly erred in applying the\nenhancement. We agree and VACATE and REMAND.\n\n Case: 18-50627 Document: 00515093656 Page: 2 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\n I.\n Aguilar-Alonzo, his girlfriend Yudilet Chavez-Hernandez, and eight\nothers were charged with aiding and abetting the possession with intent to\ndistribute more than 100 kilograms of marijuana but less than 1000 kilograms\nin violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Aguilar-Alonzo pleaded\nguilty without a plea agreement.\n After her arrest, Chavez-Hernandez told investigators that “she had\nbeen dating Aguilar-Alonzo for approximately one year and . . . knew [he] was\ninvolved in drug trafficking,” but that she had never participated in “picking\nup a load of narcotics” herself prior to this offense. This time, Aguilar-Alonzo\nrequested that she accompany him “to pick up the [marijuana].” She told the\ninvestigators that she agreed to participate “out of fear he would break up with\nher.”\n The presentence investigation report (PSR) calculated a base offense\nlevel of 24 under the 2016 Sentencing Guidelines §§ 2D1.1(a)(5) and (c)(8). It\nrecommended a two-level enhancement under § 3B1.1(c) of the Guidelines\nbecause Aguilar-Alonzo “was an organizer, leader, manager, or supervisor.”\nBecause of this two-level enhancement for leadership, the PSR recommended\nan additional two-level enhancement for two independent reasons. First,\nAguilar-Alonzo “us[ed] friendship or affection to involve [Chavez-Hernandez]\nin the illegal transport of controlled substance[s], [Chavez-Hernandez]\nreceived little or no compensation [from] the transport of the controlled\nsubstances, and [Chavez-Hernandez] had minimal knowledge of the scope and\nstructure of the enterprise.” See U.S.S.G. § 2D1.1(b)(15)(A) (2016). 1 Second,\nAguilar-Alonzo, “knowing that [Chavez-Hernandez] was pregnant, involved\n\n\n\n 1This section has been renumbered as § 2D1.1(b)(16)(A) effective November 1, 2018,\nbut the language remains the same.\n 2\n\n Case: 18-50627 Document: 00515093656 Page: 3 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\n[her] in the offense.” See § 2D1.1(b)(15)(B)(iii). With a three-level reduction\nfor acceptance of responsibility under § 3E1.1(a) and (b), Aguilar-Alonzo’s total\noffense level was 25. Based on the offense level of 25 and a criminal history\ncategory of II, the Guidelines range was 63 to 78 months of imprisonment.\n Aguilar-Alonzo objected to the two-level enhancement for use of\naffection, asserting that “Chavez-Hernandez had more [than minimal]\nknowledge” of the scope and structure of the criminal enterprise and that\nmerely being “in a dating relationship does not trigger” that enhancement. The\nprobation officer asserted that the requirements for the enhancement were\nsatisfied. Regarding use of affection, the probation officer noted that\n(1) “Chavez-[Hernandez] was engaged in a romantic relationship with\n[Aguilar-Alonzo],” (2) Aguilar-Alonzo “was aware Chavez-[Hernandez] was\npregnant with his child at the time of the instant offense,” and (3) “Chavez-\n[Hernandez] agreed to help [Aguilar-Alonzo] as she feared [he] would\nterminate his relationship with her.”\n At sentencing, Aguilar-Alonzo contended that nothing in the record\nindicated that he “made any kind of action or said any words” suggesting that\nhe would end the relationship if she refused to participate in the offense.\nAguilar-Alonzo asserted that, even though she may have felt that way, he\n“ha[d] to make some sort of actual action or words” to be eligible for the\nenhancement. In addition, Aguilar-Alonzo contended that Chavez-Hernandez\nhad more than minimal knowledge of the scope and structure of the enterprise:\n“[S]he knew [that] he was involved in drug trafficking,” she saw him pick up\nand unload drugs in the past, and she then agreed to participate in the offense\nfollowing his request.\n Aguilar-Alonzo also objected to the second independent basis for the two-\nlevel enhancement, claiming it was unwarranted under § 2D1.1(b)(15)(B)\nbecause “it [was] unclear whether [Aguilar-Alonzo] knew at the time of the\n 3\n\n Case: 18-50627 Document: 00515093656 Page: 4 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\noffense that [Chavez-Hernandez] was pregnant.” Aguilar-Alonzo asserted that\n“he didn’t find out until she was arrested,” at which point she called from jail\nto tell him “I think I just found out I’m pregnant,” and that he had a letter from\nher to him explaining “[she] wish[ed she] would have told [him] that [she] was\npregnant.” The prosecutor conceded that the government did not have\nevidence proving that Aguilar-Alonzo knew of Chavez-Hernandez’s pregnancy\nat the time of the offense.\n The district court explicitly found that the facts did not establish\nwhether Aguilar-Alonzo knew, at the relevant time of the offense, that Chavez-\nHernandez was pregnant and declined to sustain the enhancement under\n§ 2D1.1(b)(15)(B). Nevertheless, the district court determined that the two-\nlevel enhancement was warranted under § 2D1.1(b)(15)(A) because it was\n“apparent from the facts . . . that [Aguilar-Alonzo] used fear, impulse,\nfriendship, affection, or some combination thereof to involve [Chavez-\nHernandez]” in the offense. The court overruled Aguilar-Alonzo’s objection to\nthe enhancement for a leadership role. With this two-level enhancement for\nthe use of affection, the total offense level was 25, resulting in a Guidelines\nrange of 63 to 78 months. The district court declined to depart from the\nGuidelines recommendation and sentenced Aguilar-Alonzo to 70 months of\nimprisonment and 5 years of supervised release.\n On appeal, Aguilar-Alonzo challenges only the two-level enhancement\nunder § 2D1.1(b)(15)(A), asserting that the district court clearly erred in\nconcluding that he “used fear, impulse, friendship, affection, or some\ncombination thereof to involve” Chavez-Hernandez in the offense because\n“[t]he [G]uideline’s plain language requires active employment of affection to\ninduce another to participate in the offense,” but “[n]o evidence supported a\nfinding that Aguilar[-Alonzo] actively induced Chavez[-Hernandez’s]\nparticipation by playing on affection.” Aguilar-Alonzo further argues that this\n 4\n\n Case: 18-50627 Document: 00515093656 Page: 5 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\nerror prejudiced him because, without the erroneous two-level enhancement,\nhis Guidelines range would have been 60 to 63 2 months, and there is no\nindication that the district court would have imposed the same 70-month\nsentence if it had considered the lower range.\n II.\n “To preserve error, an objection must be sufficiently specific to alert the\ndistrict court to the nature of the alleged error and to provide an opportunity\nfor correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). At\nthe sentencing hearing, Aguilar-Alonzo argued that he did not take any action\nor make any statement that would have led Chavez-Hernandez to believe that\nhe would end the relationship if she refused to participate in the offense. His\nargument was sufficiently specific to alert the district court to the nature of\nthe issue raised on appeal. See Neal, 578 F.3d at 272.\n “We review the district court’s interpretation and application of the\nGuidelines de novo, and its factual findings for clear error.” United States v.\nZuniga, 720 F.3d 587, 590 (5th Cir. 2013). “A finding is ‘clearly erroneous’\nwhen although there is evidence to support it, the reviewing court on the entire\nevidence is left with the definite and firm conviction that a mistake has been\ncommitted.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The\nproponent of an adjustment to the defendant’s base offense level bears the\nburden of establishing the factual predicate “by a preponderance of the\nrelevant and sufficiently reliable evidence.” United States v. Richardson, 781\nF.3d 237, 249 (5th Cir. 2015) (quoting United States v. Alfaro, 919 F.2d 962,\n965 (5th Cir. 1990)).\n\n\n\n\n Aguilar-Alonzo’s brief states 60 to 71 months, but the proper calculation yields 60 to\n 2\n\n63 months.\n 5\n\n Case: 18-50627 Document: 00515093656 Page: 6 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\n “Where . . . the district court commits a significant procedural error such\nas miscalculating the Guidelines range, we must vacate the sentence unless\nthe error did not affect the selection of the sentence imposed.” Neal, 578 F.3d\nat 274. “The proponent of the sentence has the burden of establishing that the\nerror was harmless.” Id.\n III.\n On appeal, Aguilar-Alonzo only challenges the district court’s two-level\nenhancement under U.S.S.G. § 2D1.1(b)(15)(A) (2016), which reads:\n If the defendant receives an adjustment under § 3B1.1 . . . and[:]\n (i) The defendant used fear, impulse, friendship, affection, or some\n combination thereof to involve another individual in the illegal\n purchase, sale, transport, or storage of controlled substances, (ii)\n the individual received little or no compensation from the illegal\n purchase, sale, transport, or storage of controlled substances, and\n (iii) the individual had minimal knowledge of the scope and\n structure of the enterprise . . . increase by 2 levels.\nThe district court concluded that all three parts of this Guideline were met and\napplied the two-level increase. Aguilar-Alonzo specifically challenges the\ndistrict court’s finding that he “used affection to involve . . . [Chavez-\nHernandez] in the” offense under part (i) of the Guideline quoted above.\nAguilar-Alonzo contends that it was clear error for the district court to apply\nthis enhancement and that the error prejudiced him by resulting in a greater\nsentence than the court would have otherwise imposed. In order to resolve this\ncase, we must determine the proper interpretation of the term “used” in the\nGuideline, ascertain whether it was clear error for the district court to apply\nthe enhancement in light of our interpretation of the word, and determine\nwhether any error was harmless.\n A.\n Aguilar-Alonzo and the government dispute both the proper\ninterpretation of the verb “used” in the context of the Guidelines and the\n\n 6\n\n Case: 18-50627 Document: 00515093656 Page: 7 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\napplication of that interpretation to these facts. Aguilar-Alonzo contends that\n“[t]he plain language of [§ 2D1.1(b)(15)(A) requires] that a defendant must\nactively employ or play upon affection to induce another to commit [an]\noffense.” Alternatively, the government argues that “used” encompasses a\nbroader definition, including “passively exploiting another’s affection.” We\nagree with Aguilar-Alonzo’s interpretation of “used” under the Guidelines.\n We interpret the Sentencing Guidelines according to “the typical rules of\nstatutory interpretation,” “[s]tarting with the text of the relevant guideline[.]”\nUnited States v. Stanford, 883 F.3d 500, 511 (5th Cir. 2018). “If the language\nis unambiguous, and does not lead to an ‘absurd result,’ the court’s inquiry\nbegins and ends with the plain meaning of that language.” Id. (quoting United\nStates v. Koss, 812 F.3d 460, 473 (5th Cir. 2016)). “When a word is not defined\nby statute, we normally construe it in accord with its ordinary or natural\nmeaning.” Smith v. United States, 508 U.S. 223, 228 (1993).\n In a variety of criminal statutory contexts, we have consistently\ninterpreted the ordinary and natural meaning of the verb “use” to require\nactive employment of something, as has the Supreme Court. For example, the\nSupreme Court explained that proof of “use” in “[18 U.S.C.] § 924(c)(1) requires\nevidence sufficient to show an active employment of the firearm by the\ndefendant, a use that makes the firearm an operative factor in relation to the\npredicate offense.” Bailey v. United States, 516 U.S. 137, 143 (1995),\nsuperseded by statute on other grounds as stated in Welch v. United States, 136\nS. Ct. 1257 (2016). In Jones v. United States, the Supreme Court determined\nthat 18 U.S.C. § 844’s requirement “that [a] building be ‘used’ in an activity\naffecting commerce” was “most sensibly read to mean active employment for\ncommercial purposes, and not merely a passive, passing, or past connection to\ncommerce.” 529 U.S. 848, 855 (2000). This interpretation of “use” has been\n\n\n 7\n\n Case: 18-50627 Document: 00515093656 Page: 8 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\nreaffirmed many times. 3 The proper interpretation of “used” under the\nGuideline requires active employment of affection in return for involvement in\nthe offense, and that interpretation is consistent with the previous\ninterpretations discussed above.\n The only other circuit court of appeals decision to address the “used . . .\naffection” provision of § 2D1.1(b)(15)(A) is consistent with our interpretation of\nthe word. The Third Circuit, in United States v. Best, affirmed the district\ncourt’s two-level enhancement for Best’s use of affection to involve his\ngirlfriend in a drug trafficking offense. 639 F. App’x 848, 853–54 (3rd Cir.\n2016). At trial, “Best admitted . . . that he convinced [his girlfriend] to steal\npills and blank prescriptions by telling her that he loved her[,]” “that she was\nnever in trouble before meeting him[,]” and “that if not for him, [his girlfriend]\n‘wouldn’t be here,’ facing criminal charges.” Id. at 853. In that case, Best was\nheld subject to the two-level enhancement after he explicitly told his girlfriend\nthat he loved her for the purpose of getting her to steal pills for him. Best\nsupports our interpretation of “use” under § 2D1.1(b)(15)(A) (2016) as\nrequiring active employment of affection on the part of the defendant.\n B.\n We next address whether it was clear error for the district court to apply\nthe two-level enhancement under the Guidelines. “A finding is ‘clearly\nerroneous’ when although there is evidence to support it, the reviewing court\non the entire evidence is left with the definite and firm conviction that a\n\n\n\n\n 3 E.g., Smith, 508 U.S. at 229 (reaffirming earlier precedent defining “use” as “to\nemploy’ or ‘to derive service from’” (quoting Astor v. Merritt, 111 U.S. 202, 213 (1884)); see\nalso Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (“As we said in a similar context in Bailey, ‘use’\nrequires active employment.”); United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir.\n2001) (“[U]se’ refers to volitional, purposeful, not accidental, employment of whatever is being\n‘used.’”), overruled on other grounds by United States v. Reyes-Contreras, 910 F.3d 169 (5th\nCir. 2018) (en banc).\n 8\n\n Case: 18-50627 Document: 00515093656 Page: 9 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\nmistake has been committed.” U.S. Gypsum Co., 333 U.S. at 395. As the\nproponent of the adjustment to Aguilar-Alonzo’s base offense level, the\ngovernment bears the burden of establishing the factual predicate of that\nadjustment “by a preponderance of the relevant and sufficiently reliable\nevidence.” Richardson, 781 F.3d at 249 (citation omitted). The government\nfails to meet this burden. After reviewing the evidence, we are left with the\ndefinite and firm conviction that the district court committed error by applying\nthe two-level enhancement for use of affection.\n Under our interpretation of the verb “used” in § 2D1.1(b)(15)(A), the\nevidence in the record does not support a two-level enhancement to Aguilar-\nAlonzo’s offense level because he did not actively employ or play upon affection\nto induce involvement by Chavez-Hernandez in the offense. The evidence\nconsists of two primary facts, neither of which support a finding that Aguilar-\nAlonzo actively used affection to induce Chavez-Hernandez’s involvement in\nthe offense. First, Aguilar-Alonzo asked Chavez-Hernandez to participate in\nthe offense. Second, Chavez-Hernandez asserted that she agreed to participate\n“out of fear [Aguilar-Alonzo] would break up with her” if she did not\nparticipate.\n The government essentially argues that, just because Aguilar-Alonzo\nhad the opportunity to use affection to recruit his girlfriend, we should assume\nthat he did, despite the lack of evidentiary support. The government attempts\nto support this result by emphasizing that Chavez-Hernandez had no previous\ninvolvement in criminal activity, had little to gain financially from the crime,\nand had a limited role in the crime. However, the government offered no\nsupport for the proposition that Aguilar-Alonzo did something or said\nsomething to cajole or force her to help him. Her fear that Aguilar-Alonzo\nwould break up with her was simply her own subjective assessment of the\nsituation. We see no indication that Aguilar-Alonzo actually did or said\n 9\n\n Case: 18-50627 Document: 00515093656 Page: 10 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\nanything about their relationship when he asked her to help him. There is\nnothing in the record whatsoever that indicates Aguilar-Alonzo even knew of\nChavez-Hernandez’s subjective fear that he might break up with her but for\nher involvement in the offense. “No evidence suggests that [Aguilar-Alonzo]\ncajoled, wheedled, threatened a breakup, or otherwise actively played on\n[Chavez-Hernandez’s] affection or emotions about the relationship.” Perhaps,\nif Aguilar-Alonzo knew of this fear prior to his request for Chavez-Hernandez’s\ninvolvement, a finding that he used affection may be appropriate. That is not\nthe case here. Chavez-Hernandez’s own subjective assessment cannot be solely\nrelied on as evidence that Aguilar-Alonzo used affection to induce her\ninvolvement.\n It cannot be that the mere existence of a romantic, familial, or any other\nkind of pre-existing relationship would support a two-level enhancement under\n§ 2D1.1(b)(15)(A) when one person, who fits the other criteria under the\nGuidelines, recruits another to assist in the offense. Aside from the existence\nof the relationship and Chavez-Hernandez’s subjective fear of a breakup, there\nis nothing in the record that could even possibly relate to use of affection.\n Neither does Chavez-Hernandez’s pregnancy support the conclusion that\nAguilar-Alonzo actively used affection to involve her in the offense. The district\ncourt explicitly found that the facts did not establish whether Aguilar-Alonzo\nknew, at the relevant time of the offense, that Chavez-Hernandez was\npregnant. The fact that Aguilar-Alonzo and Chavez-Hernandez at some point\nhad a sexual relationship, without more, is not enough to establish that\nAguilar-Alonzo “actively employed” affection to involve her in the offense.\n The Third Circuit’s opinion in Best well illustrates why the facts of the\ninstant case do not support the same two-level use of affection enhancement.\nSee 639 F. App’x at 853–84. Unlike in Best, no record evidence demonstrates\nthat Aguilar-Alonzo actively employed affection to induce involvement by\n 10\n\n Case: 18-50627 Document: 00515093656 Page: 11 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\nChavez-Hernandez. In Best, the defendant told his girlfriend that he loved her\nin order to convince her to steal pills and blank prescriptions. Id. at 853. In\nthe present case, Aguilar-Alonzo simply asked Chavez-Hernandez for her help.\nWe see nothing in the record that indicates Aguilar-Alonzo actively employed\nthe continuation of their relationship in return for Chavez-Hernandez’s\ninvolvement in the offense. Aside from adopting the PSR, which stated that\nChavez-Hernandez agreed to participate in the offense out of fear that Aguilar-\nAlonzo would break up with her—an uncommunicated, subjective feeling—the\ndistrict court did not identify how Aguilar-Alonzo actively employed affection\nto induce involvement by Chavez-Hernandez in the offense. We therefore have\na firm and definite conviction that an error has been made by the district court\nin applying the two-level enhancement for use of affection.\n C.\n “Where . . . the district court commits a significant procedural error such\nas miscalculating the Guidelines range, we must vacate the sentence unless\nthe error did not affect the selection of the sentence imposed.” Neal, 578 F.3d\nat 274. “The proponent of the sentence has the burden of establishing that the\nerror was harmless.” Id. As the proponent of the sentence, the government\nalso bears the burden of establishing that the error of applying the two-level\nenhancement was harmless to Aguilar-Alonzo. The government fails to\naddress harmlessness of the error in its brief. Accordingly, any argument as\nto harmlessness is forfeited. However, even if we were to consider the issue,\nthe district court’s error was not harmless.\n The district court determined that Aguilar-Alonzo’s total offense level\nwas 25. With a criminal history category of II, this offense level yielded a\nGuidelines range of 63 to 78 months of imprisonment. Without the two-level\nenhancement under § 2D1.1(b)(15)(A), Aguilar-Alonzo’s total offense level\nwould have been 23, yielding a Guidelines range of 60–63 months of\n 11\n\n Case: 18-50627 Document: 00515093656 Page: 12 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\nimprisonment. 4 The district court’s sentence of 70 months of imprisonment is\nentirely outside the appropriate Guidelines range. The record lacks evidence\nthat the court intended to increase Aguilar-Alonzo’s sentence beyond the\nGuidelines range. In fact, the district judge, at the sentencing hearing, stated\nthat he intended to remain within the recommended Guidelines range.\nConsequently, the district court’s error in imposing the § 2D1.1(b)(15)(A)\nenhancement affected the court’s selection of the sentence it imposed.\nAccordingly, the error was not harmless, as it affected Aguilar-Alonzo’s\n“substantial rights.” See Fed. R. Crim. P. 52(a).\n IV.\n For the foregoing reasons, we VACATE Aguilar-Alonzo’s sentence and\nREMAND for further proceedings consistent with this opinion.\n\n\n\n\n 4 See U.S.S.G. ch. 5 pt. A (2016) (Sentencing Table). Absent additional factors, a total\noffense level of 23 together with a criminal history category of II yields a Guidelines range of\n51 to 63 months’ imprisonment. However, Aguilar-Alonzo’s statute of conviction, 21 U.S.C.\n§ 841, requires a mandatory minimum sentence of 60 months’ (5 years) imprisonment for his\noffense. See id. § 841(b)(1)(B). Consequently, under U.S.S.G. § 5G1.1(c), the lower end of the\ncorrect Guidelines range would be 60 months, the “statutorily required minimum sentence,”\ninstead of 51 months.\n 12\n\n Case: 18-50627 Document: 00515093656 Page: 13 Date Filed: 08/27/2019\n\n\n\n No. 18-50627\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Alexis Aguilar-Alonzo\\nCourt: U.S. Court of Appeals for the Fifth Circuit\\nDate decided: 2019-08-27\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-50627 Document: 00515093656 Page: 1 Date Filed: 08/27/2019\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n FOR THE FIFTH CIRCUIT\\n United States Court of Appeals\\n Fifth Circuit\\n\\n No. 18-50627 FILED\\n August 27, 2019\\n Lyle W. Cayce\\nUNITED STATES OF AMERICA, Clerk\\n\\n Plaintiff – Appellee,\\n\\nv.\\n\\nALEXIS AGUILAR-ALONZO,\\n\\n Defendant – Appellant.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Texas\\n\\n\\nBefore SMITH, WIENER, and ELROD, Circuit Judges.\\nJENNIFER WALKER ELROD, Circuit Judge:\\n Alexis Aguilar-Alonzo pleaded guilty to aiding and abetting the\\npossession with intent to distribute marijuana. The district court imposed a\\ntwo-level enhancement to Aguilar-Alonzo’s base offense level under U.S.S.G.\\n§ 2D1.1(b)(15)(A) (2016) for “us[ing] fear, impulse, friendship, affection, or\\nsome combination thereof to involve another individual” in the offense.\\nAguilar-Alonzo appeals, contending that the evidence does not support the two-\\nlevel enhancement and that the district court clearly erred in applying the\\nenhancement. We agree and VACATE and REMAND.\\n\\n Case: 18-50627 Document: 00515093656 Page: 2 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\n I.\\n Aguilar-Alonzo, his girlfriend Yudilet Chavez-Hernandez, and eight\\nothers were charged with aiding and abetting the possession with intent to\\ndistribute more than 100 kilograms of marijuana but less than 1000 kilograms\\nin violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Aguilar-Alonzo pleaded\\nguilty without a plea agreement.\\n After her arrest, Chavez-Hernandez told investigators that “she had\\nbeen dating Aguilar-Alonzo for approximately one year and . . . knew [he] was\\ninvolved in drug trafficking,” but that she had never participated in “picking\\nup a load of narcotics” herself prior to this offense. This time, Aguilar-Alonzo\\nrequested that she accompany him “to pick up the [marijuana].” She told the\\ninvestigators that she agreed to participate “out of fear he would break up with\\nher.”\\n The presentence investigation report (PSR) calculated a base offense\\nlevel of 24 under the 2016 Sentencing Guidelines §§ 2D1.1(a)(5) and (c)(8). It\\nrecommended a two-level enhancement under § 3B1.1(c) of the Guidelines\\nbecause Aguilar-Alonzo “was an organizer, leader, manager, or supervisor.”\\nBecause of this two-level enhancement for leadership, the PSR recommended\\nan additional two-level enhancement for two independent reasons. First,\\nAguilar-Alonzo “us[ed] friendship or affection to involve [Chavez-Hernandez]\\nin the illegal transport of controlled substance[s], [Chavez-Hernandez]\\nreceived little or no compensation [from] the transport of the controlled\\nsubstances, and [Chavez-Hernandez] had minimal knowledge of the scope and\\nstructure of the enterprise.” See U.S.S.G. § 2D1.1(b)(15)(A) (2016). 1 Second,\\nAguilar-Alonzo, “knowing that [Chavez-Hernandez] was pregnant, involved\\n\\n\\n\\n 1This section has been renumbered as § 2D1.1(b)(16)(A) effective November 1, 2018,\\nbut the language remains the same.\\n 2\\n\\n Case: 18-50627 Document: 00515093656 Page: 3 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\n[her] in the offense.” See § 2D1.1(b)(15)(B)(iii). With a three-level reduction\\nfor acceptance of responsibility under § 3E1.1(a) and (b), Aguilar-Alonzo’s total\\noffense level was 25. Based on the offense level of 25 and a criminal history\\ncategory of II, the Guidelines range was 63 to 78 months of imprisonment.\\n Aguilar-Alonzo objected to the two-level enhancement for use of\\naffection, asserting that “Chavez-Hernandez had more [than minimal]\\nknowledge” of the scope and structure of the criminal enterprise and that\\nmerely being “in a dating relationship does not trigger” that enhancement. The\\nprobation officer asserted that the requirements for the enhancement were\\nsatisfied. Regarding use of affection, the probation officer noted that\\n(1) “Chavez-[Hernandez] was engaged in a romantic relationship with\\n[Aguilar-Alonzo],” (2) Aguilar-Alonzo “was aware Chavez-[Hernandez] was\\npregnant with his child at the time of the instant offense,” and (3) “Chavez-\\n[Hernandez] agreed to help [Aguilar-Alonzo] as she feared [he] would\\nterminate his relationship with her.”\\n At sentencing, Aguilar-Alonzo contended that nothing in the record\\nindicated that he “made any kind of action or said any words” suggesting that\\nhe would end the relationship if she refused to participate in the offense.\\nAguilar-Alonzo asserted that, even though she may have felt that way, he\\n“ha[d] to make some sort of actual action or words” to be eligible for the\\nenhancement. In addition, Aguilar-Alonzo contended that Chavez-Hernandez\\nhad more than minimal knowledge of the scope and structure of the enterprise:\\n“[S]he knew [that] he was involved in drug trafficking,” she saw him pick up\\nand unload drugs in the past, and she then agreed to participate in the offense\\nfollowing his request.\\n Aguilar-Alonzo also objected to the second independent basis for the two-\\nlevel enhancement, claiming it was unwarranted under § 2D1.1(b)(15)(B)\\nbecause “it [was] unclear whether [Aguilar-Alonzo] knew at the time of the\\n 3\\n\\n Case: 18-50627 Document: 00515093656 Page: 4 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\noffense that [Chavez-Hernandez] was pregnant.” Aguilar-Alonzo asserted that\\n“he didn’t find out until she was arrested,” at which point she called from jail\\nto tell him “I think I just found out I’m pregnant,” and that he had a letter from\\nher to him explaining “[she] wish[ed she] would have told [him] that [she] was\\npregnant.” The prosecutor conceded that the government did not have\\nevidence proving that Aguilar-Alonzo knew of Chavez-Hernandez’s pregnancy\\nat the time of the offense.\\n The district court explicitly found that the facts did not establish\\nwhether Aguilar-Alonzo knew, at the relevant time of the offense, that Chavez-\\nHernandez was pregnant and declined to sustain the enhancement under\\n§ 2D1.1(b)(15)(B). Nevertheless, the district court determined that the two-\\nlevel enhancement was warranted under § 2D1.1(b)(15)(A) because it was\\n“apparent from the facts . . . that [Aguilar-Alonzo] used fear, impulse,\\nfriendship, affection, or some combination thereof to involve [Chavez-\\nHernandez]” in the offense. The court overruled Aguilar-Alonzo’s objection to\\nthe enhancement for a leadership role. With this two-level enhancement for\\nthe use of affection, the total offense level was 25, resulting in a Guidelines\\nrange of 63 to 78 months. The district court declined to depart from the\\nGuidelines recommendation and sentenced Aguilar-Alonzo to 70 months of\\nimprisonment and 5 years of supervised release.\\n On appeal, Aguilar-Alonzo challenges only the two-level enhancement\\nunder § 2D1.1(b)(15)(A), asserting that the district court clearly erred in\\nconcluding that he “used fear, impulse, friendship, affection, or some\\ncombination thereof to involve” Chavez-Hernandez in the offense because\\n“[t]he [G]uideline’s plain language requires active employment of affection to\\ninduce another to participate in the offense,” but “[n]o evidence supported a\\nfinding that Aguilar[-Alonzo] actively induced Chavez[-Hernandez’s]\\nparticipation by playing on affection.” Aguilar-Alonzo further argues that this\\n 4\\n\\n Case: 18-50627 Document: 00515093656 Page: 5 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nerror prejudiced him because, without the erroneous two-level enhancement,\\nhis Guidelines range would have been 60 to 63 2 months, and there is no\\nindication that the district court would have imposed the same 70-month\\nsentence if it had considered the lower range.\\n II.\\n “To preserve error, an objection must be sufficiently specific to alert the\\ndistrict court to the nature of the alleged error and to provide an opportunity\\nfor correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). At\\nthe sentencing hearing, Aguilar-Alonzo argued that he did not take any action\\nor make any statement that would have led Chavez-Hernandez to believe that\\nhe would end the relationship if she refused to participate in the offense. His\\nargument was sufficiently specific to alert the district court to the nature of\\nthe issue raised on appeal. See Neal, 578 F.3d at 272.\\n “We review the district court’s interpretation and application of the\\nGuidelines de novo, and its factual findings for clear error.” United States v.\\nZuniga, 720 F.3d 587, 590 (5th Cir. 2013). “A finding is ‘clearly erroneous’\\nwhen although there is evidence to support it, the reviewing court on the entire\\nevidence is left with the definite and firm conviction that a mistake has been\\ncommitted.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The\\nproponent of an adjustment to the defendant’s base offense level bears the\\nburden of establishing the factual predicate “by a preponderance of the\\nrelevant and sufficiently reliable evidence.” United States v. Richardson, 781\\nF.3d 237, 249 (5th Cir. 2015) (quoting United States v. Alfaro, 919 F.2d 962,\\n965 (5th Cir. 1990)).\\n\\n\\n\\n\\n Aguilar-Alonzo’s brief states 60 to 71 months, but the proper calculation yields 60 to\\n 2\\n\\n63 months.\\n 5\\n\\n Case: 18-50627 Document: 00515093656 Page: 6 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\n “Where . . . the district court commits a significant procedural error such\\nas miscalculating the Guidelines range, we must vacate the sentence unless\\nthe error did not affect the selection of the sentence imposed.” Neal, 578 F.3d\\nat 274. “The proponent of the sentence has the burden of establishing that the\\nerror was harmless.” Id.\\n III.\\n On appeal, Aguilar-Alonzo only challenges the district court’s two-level\\nenhancement under U.S.S.G. § 2D1.1(b)(15)(A) (2016), which reads:\\n If the defendant receives an adjustment under § 3B1.1 . . . and[:]\\n (i) The defendant used fear, impulse, friendship, affection, or some\\n combination thereof to involve another individual in the illegal\\n purchase, sale, transport, or storage of controlled substances, (ii)\\n the individual received little or no compensation from the illegal\\n purchase, sale, transport, or storage of controlled substances, and\\n (iii) the individual had minimal knowledge of the scope and\\n structure of the enterprise . . . increase by 2 levels.\\nThe district court concluded that all three parts of this Guideline were met and\\napplied the two-level increase. Aguilar-Alonzo specifically challenges the\\ndistrict court’s finding that he “used affection to involve . . . [Chavez-\\nHernandez] in the” offense under part (i) of the Guideline quoted above.\\nAguilar-Alonzo contends that it was clear error for the district court to apply\\nthis enhancement and that the error prejudiced him by resulting in a greater\\nsentence than the court would have otherwise imposed. In order to resolve this\\ncase, we must determine the proper interpretation of the term “used” in the\\nGuideline, ascertain whether it was clear error for the district court to apply\\nthe enhancement in light of our interpretation of the word, and determine\\nwhether any error was harmless.\\n A.\\n Aguilar-Alonzo and the government dispute both the proper\\ninterpretation of the verb “used” in the context of the Guidelines and the\\n\\n 6\\n\\n Case: 18-50627 Document: 00515093656 Page: 7 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\napplication of that interpretation to these facts. Aguilar-Alonzo contends that\\n“[t]he plain language of [§ 2D1.1(b)(15)(A) requires] that a defendant must\\nactively employ or play upon affection to induce another to commit [an]\\noffense.” Alternatively, the government argues that “used” encompasses a\\nbroader definition, including “passively exploiting another’s affection.” We\\nagree with Aguilar-Alonzo’s interpretation of “used” under the Guidelines.\\n We interpret the Sentencing Guidelines according to “the typical rules of\\nstatutory interpretation,” “[s]tarting with the text of the relevant guideline[.]”\\nUnited States v. Stanford, 883 F.3d 500, 511 (5th Cir. 2018). “If the language\\nis unambiguous, and does not lead to an ‘absurd result,’ the court’s inquiry\\nbegins and ends with the plain meaning of that language.” Id. (quoting United\\nStates v. Koss, 812 F.3d 460, 473 (5th Cir. 2016)). “When a word is not defined\\nby statute, we normally construe it in accord with its ordinary or natural\\nmeaning.” Smith v. United States, 508 U.S. 223, 228 (1993).\\n In a variety of criminal statutory contexts, we have consistently\\ninterpreted the ordinary and natural meaning of the verb “use” to require\\nactive employment of something, as has the Supreme Court. For example, the\\nSupreme Court explained that proof of “use” in “[18 U.S.C.] § 924(c)(1) requires\\nevidence sufficient to show an active employment of the firearm by the\\ndefendant, a use that makes the firearm an operative factor in relation to the\\npredicate offense.” Bailey v. United States, 516 U.S. 137, 143 (1995),\\nsuperseded by statute on other grounds as stated in Welch v. United States, 136\\nS. Ct. 1257 (2016). In Jones v. United States, the Supreme Court determined\\nthat 18 U.S.C. § 844’s requirement “that [a] building be ‘used’ in an activity\\naffecting commerce” was “most sensibly read to mean active employment for\\ncommercial purposes, and not merely a passive, passing, or past connection to\\ncommerce.” 529 U.S. 848, 855 (2000). This interpretation of “use” has been\\n\\n\\n 7\\n\\n Case: 18-50627 Document: 00515093656 Page: 8 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nreaffirmed many times. 3 The proper interpretation of “used” under the\\nGuideline requires active employment of affection in return for involvement in\\nthe offense, and that interpretation is consistent with the previous\\ninterpretations discussed above.\\n The only other circuit court of appeals decision to address the “used . . .\\naffection” provision of § 2D1.1(b)(15)(A) is consistent with our interpretation of\\nthe word. The Third Circuit, in United States v. Best, affirmed the district\\ncourt’s two-level enhancement for Best’s use of affection to involve his\\ngirlfriend in a drug trafficking offense. 639 F. App’x 848, 853–54 (3rd Cir.\\n2016). At trial, “Best admitted . . . that he convinced [his girlfriend] to steal\\npills and blank prescriptions by telling her that he loved her[,]” “that she was\\nnever in trouble before meeting him[,]” and “that if not for him, [his girlfriend]\\n‘wouldn’t be here,’ facing criminal charges.” Id. at 853. In that case, Best was\\nheld subject to the two-level enhancement after he explicitly told his girlfriend\\nthat he loved her for the purpose of getting her to steal pills for him. Best\\nsupports our interpretation of “use” under § 2D1.1(b)(15)(A) (2016) as\\nrequiring active employment of affection on the part of the defendant.\\n B.\\n We next address whether it was clear error for the district court to apply\\nthe two-level enhancement under the Guidelines. “A finding is ‘clearly\\nerroneous’ when although there is evidence to support it, the reviewing court\\non the entire evidence is left with the definite and firm conviction that a\\n\\n\\n\\n\\n 3 E.g., Smith, 508 U.S. at 229 (reaffirming earlier precedent defining “use” as “to\\nemploy’ or ‘to derive service from’” (quoting Astor v. Merritt, 111 U.S. 202, 213 (1884)); see\\nalso Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (“As we said in a similar context in Bailey, ‘use’\\nrequires active employment.”); United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir.\\n2001) (“[U]se’ refers to volitional, purposeful, not accidental, employment of whatever is being\\n‘used.’”), overruled on other grounds by United States v. Reyes-Contreras, 910 F.3d 169 (5th\\nCir. 2018) (en banc).\\n 8\\n\\n Case: 18-50627 Document: 00515093656 Page: 9 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nmistake has been committed.” U.S. Gypsum Co., 333 U.S. at 395. As the\\nproponent of the adjustment to Aguilar-Alonzo’s base offense level, the\\ngovernment bears the burden of establishing the factual predicate of that\\nadjustment “by a preponderance of the relevant and sufficiently reliable\\nevidence.” Richardson, 781 F.3d at 249 (citation omitted). The government\\nfails to meet this burden. After reviewing the evidence, we are left with the\\ndefinite and firm conviction that the district court committed error by applying\\nthe two-level enhancement for use of affection.\\n Under our interpretation of the verb “used” in § 2D1.1(b)(15)(A), the\\nevidence in the record does not support a two-level enhancement to Aguilar-\\nAlonzo’s offense level because he did not actively employ or play upon affection\\nto induce involvement by Chavez-Hernandez in the offense. The evidence\\nconsists of two primary facts, neither of which support a finding that Aguilar-\\nAlonzo actively used affection to induce Chavez-Hernandez’s involvement in\\nthe offense. First, Aguilar-Alonzo asked Chavez-Hernandez to participate in\\nthe offense. Second, Chavez-Hernandez asserted that she agreed to participate\\n“out of fear [Aguilar-Alonzo] would break up with her” if she did not\\nparticipate.\\n The government essentially argues that, just because Aguilar-Alonzo\\nhad the opportunity to use affection to recruit his girlfriend, we should assume\\nthat he did, despite the lack of evidentiary support. The government attempts\\nto support this result by emphasizing that Chavez-Hernandez had no previous\\ninvolvement in criminal activity, had little to gain financially from the crime,\\nand had a limited role in the crime. However, the government offered no\\nsupport for the proposition that Aguilar-Alonzo did something or said\\nsomething to cajole or force her to help him. Her fear that Aguilar-Alonzo\\nwould break up with her was simply her own subjective assessment of the\\nsituation. We see no indication that Aguilar-Alonzo actually did or said\\n 9\\n\\n Case: 18-50627 Document: 00515093656 Page: 10 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nanything about their relationship when he asked her to help him. There is\\nnothing in the record whatsoever that indicates Aguilar-Alonzo even knew of\\nChavez-Hernandez’s subjective fear that he might break up with her but for\\nher involvement in the offense. “No evidence suggests that [Aguilar-Alonzo]\\ncajoled, wheedled, threatened a breakup, or otherwise actively played on\\n[Chavez-Hernandez’s] affection or emotions about the relationship.” Perhaps,\\nif Aguilar-Alonzo knew of this fear prior to his request for Chavez-Hernandez’s\\ninvolvement, a finding that he used affection may be appropriate. That is not\\nthe case here. Chavez-Hernandez’s own subjective assessment cannot be solely\\nrelied on as evidence that Aguilar-Alonzo used affection to induce her\\ninvolvement.\\n It cannot be that the mere existence of a romantic, familial, or any other\\nkind of pre-existing relationship would support a two-level enhancement under\\n§ 2D1.1(b)(15)(A) when one person, who fits the other criteria under the\\nGuidelines, recruits another to assist in the offense. Aside from the existence\\nof the relationship and Chavez-Hernandez’s subjective fear of a breakup, there\\nis nothing in the record that could even possibly relate to use of affection.\\n Neither does Chavez-Hernandez’s pregnancy support the conclusion that\\nAguilar-Alonzo actively used affection to involve her in the offense. The district\\ncourt explicitly found that the facts did not establish whether Aguilar-Alonzo\\nknew, at the relevant time of the offense, that Chavez-Hernandez was\\npregnant. The fact that Aguilar-Alonzo and Chavez-Hernandez at some point\\nhad a sexual relationship, without more, is not enough to establish that\\nAguilar-Alonzo “actively employed” affection to involve her in the offense.\\n The Third Circuit’s opinion in Best well illustrates why the facts of the\\ninstant case do not support the same two-level use of affection enhancement.\\nSee 639 F. App’x at 853–84. Unlike in Best, no record evidence demonstrates\\nthat Aguilar-Alonzo actively employed affection to induce involvement by\\n 10\\n\\n Case: 18-50627 Document: 00515093656 Page: 11 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nChavez-Hernandez. In Best, the defendant told his girlfriend that he loved her\\nin order to convince her to steal pills and blank prescriptions. Id. at 853. In\\nthe present case, Aguilar-Alonzo simply asked Chavez-Hernandez for her help.\\nWe see nothing in the record that indicates Aguilar-Alonzo actively employed\\nthe continuation of their relationship in return for Chavez-Hernandez’s\\ninvolvement in the offense. Aside from adopting the PSR, which stated that\\nChavez-Hernandez agreed to participate in the offense out of fear that Aguilar-\\nAlonzo would break up with her—an uncommunicated, subjective feeling—the\\ndistrict court did not identify how Aguilar-Alonzo actively employed affection\\nto induce involvement by Chavez-Hernandez in the offense. We therefore have\\na firm and definite conviction that an error has been made by the district court\\nin applying the two-level enhancement for use of affection.\\n C.\\n “Where . . . the district court commits a significant procedural error such\\nas miscalculating the Guidelines range, we must vacate the sentence unless\\nthe error did not affect the selection of the sentence imposed.” Neal, 578 F.3d\\nat 274. “The proponent of the sentence has the burden of establishing that the\\nerror was harmless.” Id. As the proponent of the sentence, the government\\nalso bears the burden of establishing that the error of applying the two-level\\nenhancement was harmless to Aguilar-Alonzo. The government fails to\\naddress harmlessness of the error in its brief. Accordingly, any argument as\\nto harmlessness is forfeited. However, even if we were to consider the issue,\\nthe district court’s error was not harmless.\\n The district court determined that Aguilar-Alonzo’s total offense level\\nwas 25. With a criminal history category of II, this offense level yielded a\\nGuidelines range of 63 to 78 months of imprisonment. Without the two-level\\nenhancement under § 2D1.1(b)(15)(A), Aguilar-Alonzo’s total offense level\\nwould have been 23, yielding a Guidelines range of 60–63 months of\\n 11\\n\\n Case: 18-50627 Document: 00515093656 Page: 12 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\nimprisonment. 4 The district court’s sentence of 70 months of imprisonment is\\nentirely outside the appropriate Guidelines range. The record lacks evidence\\nthat the court intended to increase Aguilar-Alonzo’s sentence beyond the\\nGuidelines range. In fact, the district judge, at the sentencing hearing, stated\\nthat he intended to remain within the recommended Guidelines range.\\nConsequently, the district court’s error in imposing the § 2D1.1(b)(15)(A)\\nenhancement affected the court’s selection of the sentence it imposed.\\nAccordingly, the error was not harmless, as it affected Aguilar-Alonzo’s\\n“substantial rights.” See Fed. R. Crim. P. 52(a).\\n IV.\\n For the foregoing reasons, we VACATE Aguilar-Alonzo’s sentence and\\nREMAND for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 4 See U.S.S.G. ch. 5 pt. A (2016) (Sentencing Table). Absent additional factors, a total\\noffense level of 23 together with a criminal history category of II yields a Guidelines range of\\n51 to 63 months’ imprisonment. However, Aguilar-Alonzo’s statute of conviction, 21 U.S.C.\\n§ 841, requires a mandatory minimum sentence of 60 months’ (5 years) imprisonment for his\\noffense. See id. § 841(b)(1)(B). Consequently, under U.S.S.G. § 5G1.1(c), the lower end of the\\ncorrect Guidelines range would be 60 months, the “statutorily required minimum sentence,”\\ninstead of 51 months.\\n 12\\n\\n Case: 18-50627 Document: 00515093656 Page: 13 Date Filed: 08/27/2019\\n\\n\\n\\n No. 18-50627\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":36,"numItemsPerPage":100,"numTotalItems":31175,"offset":3600,"length":100}},"jwt":"eyJhbGciOiJFZERTQSIsImtpZCI6IjVHZDBvd0g5MTM2eDZjc1FvbE1zcktNWUZoRVFoUm5PVVVybEpjOUhaUEEifQ.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc4NjQ2MTg4MywianRpIjoiYWJkOTBlODgtYzBkYy00OWMyLTg1NTEtZTA2NWYxODQzMGRiIiwic3ViIjoiL2RhdGFzZXRzL2VpdGFucy1wdS9jbC1jb2RpbmctaW5wdXQiLCJleHAiOjE3ODY0NjU0ODMsImlzcyI6Imh0dHBzOi8vaHVnZ2luZ2ZhY2UuY28ifQ.y6JVZ0JVlpSlkVRxk5Qx6qGUJMPV9Tq9r-xElteDcu5bOtOPX51lMi0zJ_u9t3y4BDlDgGLAepJT-HaRDtjmAw","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":31175,"numBytesParquet":1629387251}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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4,649,410 | Jeryl TURCO v. CITY OF ENGLEWOOD, NEW JERSEY, Appellant | Jeryl Turco v. City of Englewood | 2019-08-19 | 17-3716 | U.S. Court of Appeals for the Third Circuit | {"judges": "McKee, Vanaskie, Siler", "parties": "", "opinions": [{"author": "McKEE", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 17-3716\n _____________... | MCKEE | VANASKIE | SILER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649410/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,649,743 | SECRETARY UNITED STATES DEPARTMENT OF LABOR v. BRISTOL EXCAVATING, INC.; Calvin Bristol, Individually and as Owner of Bristol Excavating, Inc., Appellants | Sec'y U.S. Dep't of Labor v. Bristol Excavating, Inc. | 2019-08-20 | 17-3663 | U.S. Court of Appeals for the Third Circuit | {"judges": "Smith, Jordan, Rendell", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 17-3663\n _____________... | SMITH | JORDAN | RENDELL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649743/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,649,744 | Linda STONE, on Behalf of Herself and Those Similarly Situated, Appellant v. TROY CONSTRUCTION, LLC | Linda Stone v. Troy Construction LLC | 2019-08-20 | 18-1825 | U.S. Court of Appeals for the Third Circuit | {"judges": "Jordan, Krause, Roth", "parties": "", "opinions": [{"author": "JORDAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n _____________\n\n No. 18-1825\n _____________\n... | JORDAN | KRAUSE | ROTH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649744/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,649,745 | Andrew WOLFINGTON, Individually and on Behalf of All Others Similarly Situated, Appellant v. RECONSTRUCTIVE ORTHOPAEDIC ASSOCIATES II PC, A/K/A the Rothman Institute; Rothman Institute; Does 1 Through 10, Inclusive | Wolfington v. Reconstructive Orthopaedic Assocs. II PC | 2019-08-20 | 17-3500 & 18-1182 | U.S. Court of Appeals for the Third Circuit | {"judges": "Krause, Cowen, Fuentes", "parties": "", "opinions": [{"author": "District Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n\n\n Nos. 17-3500 & 18-1182\n\n\nANDREW WOLFINGTON, individually and on behalf of all\n ... | KRAUSE | COWEN | FUENTES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649745/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,654,463 | John Guerra, Jr. v. Consolidated Rail Corp | 2019-08-21 | 18-2471 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: HARDIMAN, PORTER, COWEN, Circuit Judges (", "parties": "", "opinions": [{"author": "PORTER, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n __________\n\n No. 18-2471\n ... | HARDIMAN | PORTER | COWEN | 1 | {"HARDIMAN": ", Circuit", "PORTER": ", Circuit", "COWEN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4654463/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,655,507 | Heather Oberdorf v. Amazon.com Inc | 2019-08-23 | 18-1041 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: SMITH, Chief Judge, AMBRO, CHAGARES, JORDAN, HARDIMAN, SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, SCIRICA* AND ROTH*, Circuit Judges ORDER SUR PETITION FOR REHEARING EN BANC A majority of the active judges having voted for rehearing en banc in the above captioned cases, it is ordered t... | SMITH | AMBRO | CHAGARES | 2 | JORDAN; HARDIMAN; SHWARTZ; KRAUSE; RESTREPO; BIBAS; PORTER; MATEY; PHIPPS; SCIRICA; ROTH | {"SMITH": ", Chief", "AMBRO": ", Circuit", "CHAGARES": ", Circuit", "JORDAN": ", Circuit", "HARDIMAN": ", Circuit", "SHWARTZ": ", Circuit", "KRAUSE": ", Circuit", "RESTREPO": ", Circuit", "BIBAS": ", Circuit", "PORTER": ", Circuit", "MATEY": ", Circuit", "PHIPPS": ", Circuit", "SCIRICA": ", Circuit", "ROTH": ", Circuit... | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4655507/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,655,508 | Brian Fields v. Speaker of the Pennsylvania | 2019-08-23 | 18-2974 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: AMBRO, RESTREPO, and FISHER, Circuit Judges (Opinion", "parties": "", "opinions": [{"type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n Nos. 18-2974 & 18-3167\n ________________\n\n... | AMBRO | RESTREPO | FISHER | 1 | {"AMBRO": ", Circuit", "RESTREPO": ", Circuit", "FISHER": ", Circuit"} | 5 | 0 | 3 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4655508/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
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4,656,782 | Michael Jester v. Robert Hutt | 2019-08-28 | 18-3114 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: HARDIMAN, PORTER, and COWEN, Circuit Judges.", "parties": "", "opinions": [{"author": "HARDIMAN, Circuit Judge.", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ___________\n\n Nos. 18-3114 & 18-3197\n ... | HARDIMAN | PORTER | COWEN | 1 | {"HARDIMAN": ", Circuit", "PORTER": ", Circuit", "COWEN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4656782/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,657,302 | Nicole Haberle v. Borough of Nazareth | 2019-08-29 | 18-3429 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "PRECEDENTIAL\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n No. 18-3429\n ... | AMBRO | GREENAWAY JR | SCIRICA | 1 | {"AMBRO": ", Circuit", "GREENAWAY JR": ", Circuit", "SCIRICA": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4657302/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,657,792 | Priya Verma v. 3001 Castor Inc | 2019-08-30 | 18-2462 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges (Opinion", "parties": "", "opinions": [{"author": "AMBRO, Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n N... | AMBRO | GREENAWAY JR | SCIRICA | 1 | {"AMBRO": ", Circuit", "GREENAWAY JR": ", Circuit", "SCIRICA": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4657792/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,657,793 | Nadine Pellegrino v. TSA | 2019-08-30 | 15-3047 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER and SCIRICA, Circuit Judges (Opinion", "parties": "", "opinions": [{"author": "AMBRO, Circuit Judge, with whom Chief Judge Smith and", "type": "010combined", "text": "PRECEDENTIAL\n... | SMITH | MCKEE | AMBRO | 2 | CHAGARES; JORDAN; HARDIMAN; GREENAWAY JR; SHWARTZ; KRAUSE; RESTREPO; BIBAS; PORTER; SCIRICA | {"SMITH": ", Chief", "McKEE": ", Circuit", "AMBRO": ", Circuit", "CHAGARES": ", Circuit", "JORDAN": ", Circuit", "HARDIMAN": ", Circuit", "GREENAWAY JR": ", Circuit", "SHWARTZ": ", Circuit", "KRAUSE": ", Circuit", "RESTREPO": ", Circuit", "BIBAS": ", Circuit", "PORTER": ", Circuit", "SCIRICA": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4657793/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,657,794 | George Matheis, Jr. v. CSL Plasma Inc | 2019-08-30 | 18-3415 | U.S. Court of Appeals for the Third Circuit | {"judges": "Before: AMBRO, RESTREPO, and FISHER, Circuit Judges (Opinion", "parties": "", "opinions": [{"author": "AMBRO, Circuit Judge", "type": "010combined", "text": "PRECEDENTIAL\n\n UNITED STATES COURT OF APPEALS\n FOR THE THIRD CIRCUIT\n ________________\n\n Nos. 18-34... | AMBRO | RESTREPO | FISHER | 1 | {"AMBRO": ", Circuit", "RESTREPO": ", Circuit", "FISHER": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4657794/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,644,991 | UNITED STATES of America, Plaintiff - Appellee, v. Nikolai BOSYK, Defendant - Appellant. Electronic Frontier Foundation, Amicus Supporting Appellant. | United States v. Nikolai Bosyk | 2019-08-01 | 18-4302 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wynn, Diaz, Richardson", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9889044/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opi... | WYNN | DIAZ | RICHARDSON | 1 | {} | 5 | 0 | 3 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4644991/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,644,992 | PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Plaintiff - Appellee v. BEACH MART, INC., Defendant - Appellant and L&L Wings, Inc. Defendant | Pa. Nat'l Mut. Cas. Ins. Co. v. Beach Mart, Inc. | 2019-08-01 | 18-1285 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Keenan, Wynn, Floyd", "parties": "", "opinions": [{"author": "WYNN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1285\n\n\nPENNSYLVANIA... | KEENAN | WYNN | FLOYD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4644992/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,646,291 | Life Technologies Corporation v. Krishnamurthy Govindaraj | 2019-08-07 | 16-1703 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before AGEE, KEENAN, and QUATTLEBAUM, Circuit Judges.", "parties": "", "opinions": [{"author": "BARBARA MILANO KEENAN, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | AGEE | KEENAN | QUATTLEBAUM | 1 | {"AGEE": ", Circuit", "KEENAN": ", Circuit", "QUATTLEBAUM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4646291/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,647,180 | UNITED STATES of America, Plaintiff - Appellee, v. Donald Eugene WALKER, Defendant - Appellant. | United States v. Donald Walker | 2019-08-09 | 15-4301 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Motz, Wynn", "parties": "", "opinions": [{"author": "DIANA GRIBBON MOTZ, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 15-4301\n\n... | NIEMEYER | MOTZ | WYNN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647180/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,647,565 | UNITED STATES of America, Plaintiff - Appellee, v. Willie D. MCCALL, A/K/A Derrick Armstead, Defendant - Appellant. | United States v. Willie McCall | 2019-08-12 | 18-4143 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Floyd, Harris, Richardson", "parties": "", "opinions": [{"author": "RICHARDSON, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-4143\n\n\nU... | FLOYD | HARRIS | RICHARDSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647565/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,647,567 | Paige MARTINEAU, Plaintiff - Appellant, v. Joel WIER; Diane Wier; Richard Guest, Defendants - Appellees. | Paige Martineau v. Joel Wier | 2019-08-12 | 18-2294 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Harris, Hollander", "parties": "", "opinions": [{"author": "PAMELA HARRIS, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-2294\n\n\... | NIEMEYER | HARRIS | HOLLANDER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647567/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,283 | W. C. ENGLISH, INC., Plaintiff - Appellant, v. RUMMEL, KLEPPER & KAHL, LLP; CDM Smith, Inc., Defendants - Appellees. | W. C. English, Inc. v. Rummel, Klepper & Kahl, LLP | 2019-08-14 | 18-1529 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Niemeyer, Harris, Hollander", "parties": "", "opinions": [{"author": "NIEMEYER, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1529\n\n\nW. C... | NIEMEYER | HARRIS | HOLLANDER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648283/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,720 | William HAWKINS; Eric Keller ; Thomas Zato; Kristof Gabor; Justin Panchley, Plaintiffs - Appellants, v. I-TV DIGITALIS TAVKOZLESI ZRT., F/K/A DMCC Kommunikacios Rt., Defendant - Appellee, DIGI Tavkozlesi Es Szolgaltato Kft. ; RCS & RDS S.A. ; RCS Management S.A. ; DIGI Communications, N v. ; Zoltan Teszari, Respondents... | William Hawkins v. i-TV Digitalis Tavkozlesi Zrt. | 2019-08-15 | 18-1197; 18-1288 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Wynn, Diaz, Richardson", "parties": "", "opinions": [{"author": "RICHARDSON, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1197\n\n\nWILLIAM HAWKINS... | WYNN | DIAZ | RICHARDSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648720/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,722 | UNITED STATES of America, Plaintiff - Appellee, v. Thomas Edward NORMAN, Defendant - Appellant. | United States v. Thomas Norman | 2019-08-15 | 18-4214 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Motz, King, Thacker", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9889086/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest... | MOTZ | KING | THACKER | 1 | {} | 5 | 0 | 0 | 3 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648722/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,649,130 | Antonio PASSARO, Jr., Plaintiff - Appellant, v. Commonwealth of VIRGINIA; Virginia Department of State Police, Defendants - Appellees | Antonio Passaro, Jr. v. Commonwealth of Virginia | 2019-08-16 | 18-1789 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Richardson, Traxler", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9889108/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest... | RICHARDSON | TRAXLER | RICHARDSON | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649130/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,654,489 | United States v. Ezekiel Dennison | 2019-08-21 | 18-4010 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before GREGORY, Chief Judge, NIEMEYER, and MOTZ, Circuit Judges.", "parties": "", "opinions": [{"author": "Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n ... | GREGORY | NIEMEYER | MOTZ | 1 | {"GREGORY": ", Chief", "NIEMEYER": ", Circuit", "MOTZ": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4654489/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,655,566 | Nicholas Lennear v. Eric Wilson | 2019-08-23 | 18-6403 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before MOTZ, WYNN, and RICHARDSON, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-6403\n\n\nNICHOLAS LENNEAR,\... | MOTZ | WYNN | RICHARDSON | 1 | {"MOTZ": ", Circuit", "WYNN": ", Circuit", "RICHARDSON": ", Circuit"} | 5 | 0 | 4 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4655566/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,656,415 | Matthew Perkins v. International Paper Company | 2019-08-27 | 18-1507 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.", "parties": "", "opinions": [{"author": "QUATTLEBAUM, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | NIEMEYER | KEENAN | QUATTLEBAUM | 1 | {"NIEMEYER": ", Circuit", "KEENAN": ", Circuit", "QUATTLEBAUM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4656415/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,656,419 | Deanna Evans v. International Paper Company | 2019-08-27 | 18-1448 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.", "parties": "", "opinions": [{"author": "QUATTLEBAUM, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n ... | NIEMEYER | KEENAN | QUATTLEBAUM | 1 | {"NIEMEYER": ", Circuit", "KEENAN": ", Circuit", "QUATTLEBAUM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4656419/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,657,365 | Jesus Zuniga Romero v. William Barr | 2019-08-29 | 18-1850 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before AGEE, FLOYD, and THACKER, Circuit Judges.", "parties": "", "opinions": [{"author": "AGEE, Circuit Judge:", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n N... | AGEE | FLOYD | THACKER | 1 | {"AGEE": ", Circuit", "FLOYD": ", Circuit", "THACKER": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4657365/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,657,822 | In re: Willis Towers Watson | 2019-08-30 | 18-1874 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before KING, DIAZ, and QUATTLEBAUM, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 18-1874\n\n\... | KING | DIAZ | QUATTLEBAUM | 1 | {"KING": ", Circuit", "DIAZ": ", Circuit", "QUATTLEBAUM": ", Circuit"} | 4 | 0 | 3 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4657822/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,657,823 | Felicia Sanders v. United States | 2019-08-30 | 18-1931 | U.S. Court of Appeals for the Fourth Circuit | {"judges": "Before GREGORY, Chief Judge, AGEE, and DIAZ, Circuit Judges.", "parties": "", "opinions": [{"author": "Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, in", "type": "010combined", "text": "PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n ... | GREGORY | AGEE | DIAZ | 1 | {"GREGORY": ", Chief", "AGEE": ", Circuit", "DIAZ": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4657823/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,644,968 | LaBrittany Hassen v. Ruston Louisiana Hospital Co. | 2019-08-01 | 18-30856 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before KING, SMITH, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "DON R. WILLETT, Circuit Judge:", "type": "010combined", "text": "Case: 18-30856 Document: 00515058857 Page: 1 Date Filed: 08/01/2019\n\n\n\n\n REVISED August 1, 2019\n\n IN THE UNIT... | KING | SMITH | WILLETT | 1 | {"KING": ", Circuit", "SMITH": ", Circuit", "WILLETT": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4644968/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,645,067 | Joseph THOMAS; Vernon Ayers; Melvin Lawson, Plaintiffs-Appellees v. Phil BRYANT, Governor of the State of Mississippi, All in the Official Capacities of Their Own Offices and in Their Official Capacities as Members of the State Board of Election Commissioners; Delbert Hosemann, Secretary of State of the State of Missis... | Joseph Thomas v. Phil Bryant | 2019-08-01 | 19-60133 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Davis, Higginson, Per Curiam, Willett", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 19-60133 Document: 00515059749 Page: 1 Date Filed: 08/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | DAVIS | HIGGINSON | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4645067/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,645,069 | Ambrosio LONGORIA, Plaintiff - Appellee v. HUNTER EXPRESS, LIMITED ; Sarbjit Singh Basatia, Defendants - Appellants | Ambrosio Longoria v. Hunter Express, Limited, et a | 2019-08-01 | 17-41042 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Wiener, Southwick, Costa", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 17-41042 Document: 00515059445 Page: 1 Date Filed: 08/01/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | WIENER | SOUTHWICK | COSTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4645069/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,645,402 | Willie Frank JACKSON, Petitioner-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. | Willie Jackson v. Lorie Davis, Director | 2019-08-02 | 18-10526 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Southwick", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-10526 Document: 00515061594 Page: 1 Date Filed: 08/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCU... | HIGGINBOTHAM | SMITH | SOUTHWICK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4645402/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,645,403 | UNITED STATES of America, Plaintiff - Appellee, v. Johnny ESCALANTE, Also Known as Manuel Rojas, Defendant - Appellant. | United States v. Johnny Escalante | 2019-08-02 | 18-10408 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Wiener, Elrod", "parties": "", "opinions": [{"author": "JENNIFER WALKER ELROD, Circuit Judge:", "type": "010combined", "text": "Case: 18-10408 Document: 00515061395 Page: 1 Date Filed: 08/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | SMITH | WIENER | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4645403/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,645,405 | Stephanie Warren v. Federal National Mortgage Assn | 2019-08-02 | 18-11211 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before SMITH, WIENER, and ELROD, Circuit Judges.", "parties": "", "opinions": [{"author": "JENNIFER WALKER ELROD, Circuit Judge:", "type": "010combined", "text": "Case: 18-11211 Document: 00515061721 Page: 1 Date Filed: 08/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | SMITH | WIENER | ELROD | 1 | {"SMITH": ", Circuit", "WIENER": ", Circuit", "ELROD": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4645405/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,645,407 | ADI WORLDLINK, L.L.C., Plaintiff - Appellant v. RSUI INDEMNITY COMPANY, Defendant - Appellee | ADI Worldlink, L.L.C. v. RSUI Indemnity Company | 2019-08-02 | 17-41050 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Dennis, Owen, Southwick", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 17-41050 Document: 00515061895 Page: 1 Date Filed: 08/02/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUI... | DENNIS | OWEN | SOUTHWICK | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4645407/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,047 | Stephanie WARREN v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, also known as Fannie Mae | Warren v. Fed. Nat'l Mortg. Ass'n | 2019-08-02 | No. 18-11211 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Elrod, Smith, Wiener", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415485/", "author_raw": ""}]} | ELROD | SMITH | WIENER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444047/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,645,727 | UNITED STATES of America, Plaintiff - Appellee v. Brandon Gregory LEAL, Defendant - Appellant | United States v. Brandon Leal | 2019-08-05 | 16-11330 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Davis, Higginson, Willett", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 16-11330 Document: 00515063889 Page: 1 Date Filed: 08/05/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIR... | DAVIS | HIGGINSON | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4645727/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,645,731 | Daniel Enrique CANTÚ, Plaintiff-Appellant, v. James M. MOODY; Erin S. LaBuz, Also Known as Erin S. Hayne; Nathan Husak; David De Los Santos; Ryan Porter; Rosa Lee Garza; Alfredo Barrera; United States of America; Christopher Lee, Defendants-Appellees. | Daniel Cantu v. James Moody | 2019-08-05 | 18-40434 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Clement, Graves, Oldham", "parties": "", "opinions": [{"author": "ANDREW S. OLDHAM, Circuit Judge:", "type": "010combined", "text": "Case: 18-40434 Document: 00515064162 Page: 1 Date Filed: 08/05/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n... | CLEMENT | GRAVES | OLDHAM | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4645731/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,645,897 | UNITED STATES of America, Plaintiff-Appellee v. Manuel BOTELLO-ZEPEDA, Also Known as Manuel Botello, Also Known as Manuel Botello Zapeda, Defendant-Appellant | United States v. Manuel Botello-Zepeda | 2019-08-06 | 18-40595 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Southwick", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 18-40595 Document: 00515065194 Page: 1 Date Filed: 08/06/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CI... | HIGGINBOTHAM | SMITH | SOUTHWICK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4645897/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,645,901 | In the MATTER OF: SHERWIN ALUMINA COMPANY, L.L.C.; Sherwin Pipeline, Inc., Debtors Port of Corpus Christi Authority, Appellant v. Sherwin Alumina Company, L.L.C.; Sherwin Pipeline, INC., Appellees | Port of Corpus Christi Auth. v. Sherwin Alumina Co. (In Re Sherwin Alumina Co.) | 2019-08-06 | 18-40557 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Higginson", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined", "text": "Case: 18-40557 Document: 00515065090 Page: 1 Date Filed: 08/06/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | SMITH | HIGGINSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4645901/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,048 | Dora Salia MALDONADO Dora L. Munoz Rogelio Cazares, Jr. Jorge Salazar Palmira Munoz Chris Yates Santos Leal v. Ricardo RODRIGUEZ, Jr. | Maldonado v. Rodriguez | 2019-08-06 | No. 18-40318 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Dennis, Jolly, Jones", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415486/", "author_raw": ""}]} | DENNIS | JOLLY | JONES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444048/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,053 | State of TEXAS v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Janet Dhillon, in her official capacity as Acting Chair of the EEOC William P. Barr, U.S. Attorney General, in his official capacity as Attorney General for the United States | State v. Equal Emp't Opportunity Comm'n | 2019-08-06 | No. 18-10638 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Elrod, Smith, Wiener", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415491/", "author_raw": ""}]} | ELROD | SMITH | WIENER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444053/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,054 | Avigail MORALES-MORALES, also known as Almida Avial Morales Melendez v. William P. BARR, U. S. Attorney General | Morales-Morales v. Barr | 2019-08-06 | No. 17-60819 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Southwick", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415492/", "author_raw": ""}]} | HIGGINBOTHAM | SMITH | SOUTHWICK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444054/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,646,702 | WYNNEWOOD REFINING COMPANY, L.L.C., and Its Successors, Petitioner v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; Patrick Pizzella, Acting Secretary, Department of Labor, Respondents | Wynnewood Ref. Co. v. Occupational Safety & Health Review Comm'n | 2019-08-08 | 19-60357 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before SMITH, COSTA, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 19-60357 Document: 00515068555 Page: 1 Date Filed: 08/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FI... | SMITH | COSTA | HO | 1 | {"SMITH": ", Circuit", "COSTA": ", Circuit", "HO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4646702/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,646,704 | United States v. Richard Jones | 2019-08-08 | 18-10590 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before SMITH, WIENER, and ELROD, Circuit Judges.", "parties": "", "opinions": [{"author": "WIENER, Circuit Judge", "type": "010combined", "text": "Case: 18-10590 Document: 00515068800 Page: 1 Date Filed: 08/08/2019\n\n\n\n\n REVISED AUGUST 8, 2019\n\n IN THE UNITED STA... | SMITH | WIENER | ELROD | 1 | {"SMITH": ", Circuit", "WIENER": ", Circuit", "ELROD": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4646704/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,646,705 | UNITED STATES of America, Plaintiff - Appellant v. Carlos PEDROZA-ROCHA, Defendant - Appellee | United States v. Carlos Pedroza-Rocha | 2019-08-08 | 18-50828 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "King, Elrod, Engelhardt", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-50828 Document: 00515068424 Page: 1 Date Filed: 08/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | KING | ELROD | ENGELHARDT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4646705/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,646,840 | UNITED STATES of America, Plaintiff - Appellee v. Michael Dewayne HEGWOOD, Defendant - Appellant | United States v. Michael Hegwood | 2019-08-08 | 19-40117 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Southwick", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 19-40117 Document: 00515069143 Page: 1 Date Filed: 08/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH... | HIGGINBOTHAM | SMITH | SOUTHWICK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4646840/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,646,841 | UNITED STATES of America, Plaintiff - Appellee v. Mario DURAN, Defendant - Appellant | United States v. Mario Duran | 2019-08-08 | 17-30428 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Elrod, Graves, Oldham", "parties": "", "opinions": [{"author": "JAMES E. GRAVES, JR., Circuit Judge", "type": "010combined", "text": "Case: 17-30428 Document: 00515069553 Page: 1 Date Filed: 08/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\... | ELROD | GRAVES | OLDHAM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4646841/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,646,846 | UNITED STATES of America, Plaintiff - Appellee v. Jim C. HODGE; Allquest Home Mortgage Corporation, Formerly Known as Allied Home Mortgage Corporation; Americus Mortgage Corporation, Formerly Known as Allied Home Mortgage Capital Corporation, Defendants - Appellants | United States v. Allied Home Mortgage Corp. | 2019-08-08 | 17-20720 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Barksdale, Southwick, Haynes", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 17-20720 Document: 00515069049 Page: 1 Date Filed: 08/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH C... | BARKSDALE | SOUTHWICK | HAYNES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4646846/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,646,851 | Officer John DOE, Police Officer, Plaintiff - Appellant v. DeRay MCKESSON; Black Lives Matter; Black Lives Matter Network, Incorporated, Defendants - Appellees | John Doe v. DeRay Mckesson | 2019-08-08 | 17-30864 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Jolly, Elrod, Willett", "parties": "", "opinions": [{"author": "E. GRADY JOLLY, Circuit Judge:", "type": "010combined", "text": "Case: 17-30864 Document: 00515069317 Page: 1 Date Filed: 08/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | JOLLY | ELROD | WILLETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4646851/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,646,855 | Barbara MARKS; JLF, a Minor; GWF, a Minor; GJH, a Minor, Also Known as GJR, Plaintiffs - Appellees v. Wanda HUDSON; Deauc Dentaen, Defendants - Appellants | Barbara Marks v. Wanda Hudson | 2019-08-08 | 18-20486 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Owen, Southwick, Higginson", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 18-20486 Document: 00515068922 Page: 1 Date Filed: 08/08/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUI... | OWEN | SOUTHWICK | HIGGINSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4646855/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,647,152 | United States v. Allied Home Mortgage Corp. | 2019-08-09 | 17-20720 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 17-20720 Document: 00515070355 Page: 1 Date Filed: 08/09/2019\n\n\n\n\n REVISED August 9, 2019\n\n ... | BARKSDALE | SOUTHWICK | HAYNES | 1 | {"BARKSDALE": ", Circuit", "SOUTHWICK": ", Circuit", "HAYNES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647152/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,647,261 | Chad Brackeen v. David Bernhardt | 2019-08-09 | 18-11479 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before WIENER, DENNIS, and OWEN, Circuit Judges.", "parties": "", "opinions": [{"author": "JAMES L. DENNIS, Circuit Judge:", "type": "010combined", "text": "Case: 18-11479 Document: 00515071068 Page: 1 Date Filed: 08/09/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FO... | WIENER | DENNIS | OWEN | 1 | {"WIENER": ", Circuit", "DENNIS": ", Circuit", "OWEN": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647261/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,647,514 | GREENWICH INSURANCE COMPANY; Indian Harbor Insurance Company, Plaintiffs-Counter Defendants-Appellees v. CAPSCO INDUSTRIES, INCORPORATED, Defendant-Appellee Ground Control, L.L.C., Defendant-Counter Claimant-Appellant | Greenwich Insurance Company v. Capsco Indus | 2019-08-12 | 18-60032 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Southwick", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 18-60032 Document: 00515072148 Page: 1 Date Filed: 08/12/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIR... | HIGGINBOTHAM | SMITH | SOUTHWICK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647514/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,647,671 | UNITED STATES of America, Plaintiff - Appellee, v. Deloyd JONES, Also Known as Puggy Jones; Byron Jones, Also Known as Big Baby Jones; Sidney Patterson, Also Known as Duda Man Patterson, Defendants - Appellants. | United States v. Deloyd Jones | 2019-08-12 | 18-30256 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Wiener, Elrod", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-30256 Document: 00515073119 Page: 1 Date Filed: 08/12/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | SMITH | WIENER | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647671/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,647,676 | LIBERTY MUTUAL FIRE INSURANCE COMPANY, as Subrogee of Chickasaw County School District, Plaintiff - Appellee v. FOWLKES PLUMBING, L.L.C. ; Sullivan Enterprises, Incorporated; Quality Heat; Air, Incorporated, Defendants - Appellants | Liberty Mutual Fire Insurance v. Fowlkes Plumbing | 2019-08-12 | 18-60608 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Jones, Costa", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-60608 Document: 00515073231 Page: 1 Date Filed: 08/12/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Cour... | HIGGINBOTHAM | JONES | COSTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647676/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,647,677 | Joseph Eugene OSBORNE, Petitioner-Appellant, v. Pelicia HALL, Commissioner, Mississippi Department of Corrections, Respondent-Appellee. | Joseph Osborne v. Pelicia Hall, Commissioner | 2019-08-12 | 17-60321 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Wiener, Elrod", "parties": "", "opinions": [{"author": "JENNIFER WALKER ELROD, Circuit Judge:", "type": "010combined", "text": "Case: 17-60321 Document: 00515073043 Page: 1 Date Filed: 08/12/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | SMITH | WIENER | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647677/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,647,994 | Robert MCMICHAEL, Plaintiff - Appellant v. TRANSOCEAN OFFSHORE DEEPWATER DRILLING, INCORPORATED; Transocean RIGP DCL, L.L.C.; Transocean Offshore USA, Incorporated, Defendants - Appellees | McMichael v. Transocean Offshore Deepwater Drilling, Inc. | 2019-08-13 | 19-60011 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Stewart, Jones, Owen", "parties": "", "opinions": [{"author": "CARL E. STEWART, Chief Judge", "type": "010combined", "text": "Case: 19-60011 Document: 00515074647 Page: 1 Date Filed: 08/13/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | STEWART | JONES | OWEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647994/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,647,997 | In RE: DEEPWATER HORIZON Lake Eugenie Land & Development, Incorporated ; Et Al, Plaintiffs, v. Halliburton Energy Services, Incorporated; Transocean Holdings, L.L.C., Defendants - Appellees, v. Julius Barbour; Edward Barnhill, Jr.; Edward Barnhill, Sr.; Karen Barnhill; Scott Black; Et Al, Movants - Appellants. John M. ... | Deepwater Horizon Lake Eugenie Land v. Halliburton Energy Servs., Inc. | 2019-08-13 | 18-30243; CONSOLIDATED WITH 18-30413, CONSOLIDATED WITH 18-30533 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "King, Elrod, Engelhardt", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-30243 Document: 00515074428 Page: 1 Date Filed: 08/13/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | KING | ELROD | ENGELHARDT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4647997/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,397 | ARCHER AND WHITE SALES, INCORPORATED, Plaintiff - Appellee v. HENRY SCHEIN, INCORPORATED; Danaher Corporation; Instrumentarium Dental, Incorporation; Dental Equipment, L.L.C.; Kavo Dental Technologies, L.L.C.; Dental Imaging Technologies, Corporation, Defendants - Appellants | Archer and White Sales, Inc. v. Henry Schein, Inco | 2019-08-14 | 16-41674 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Graves, Higginson", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined", "text": "Case: 16-41674 Document: 00515076566 Page: 1 Date Filed: 08/14/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE ... | HIGGINBOTHAM | GRAVES | HIGGINSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648397/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,705 | In RE: Dexter JOHNSON, Movant Dexter Johnson, Petitioner - Appellant v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee | Johnson v. Davis (In Re Johnson) | 2019-08-14 | 19-20552; C/w 19-70013 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Southwick, Graves, Higginson", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 19-20552 Document: 00515077003 Page: 1 Date Filed: 08/14/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | SOUTHWICK | GRAVES | HIGGINSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648705/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,700 | UNITED STATES of America, Plaintiff - Appellee v. Hugh Michael GLENN, Defendant - Appellant | United States v. Hugh Glenn | 2019-08-15 | 18-10580 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Haynes, Graves, Duncan", "parties": "", "opinions": [{"author": "JAMES E. GRAVES, JR., Circuit Judge", "type": "010combined", "text": "Case: 18-10580 Document: 00515077500 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT... | HAYNES | GRAVES | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648700/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,701 | UNITED STATES of America, Plaintiff - Appellee v. Christopher G. WAGUESPACK, Defendant - Appellant | United States v. Christopher Waguespack | 2019-08-15 | 18-30813 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Haynes, Graves, Duncan", "parties": "", "opinions": [{"author": "JAMES E. GRAVES, Circuit Judge:", "type": "010combined", "text": "Case: 18-30813 Document: 00515077689 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | HAYNES | GRAVES | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648701/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,702 | Sylvia ZEPEDA, Plaintiff - Appellee v. FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendant - Appellant | Sylvia Zepeda v. Federal Home Loan Mtge Corp. | 2019-08-15 | 18-20336 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "James, Haynes, Graves", "parties": "", "opinions": [{"author": "JAMES C. HO, Circuit Judge:", "type": "010combined", "text": "Case: 18-20336 Document: 00515077390 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | JAMES | HAYNES | GRAVES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648702/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,703 | Steven Kurt BAUGHMAN, Plaintiff - Appellant v. Ron HICKMAN; Doctor Marcus Guice, Medical Doctor; Licensed Vocational Nurse K. Johnson; Harris County, Texas; Deputy Durham; Licensed Vocational Nurse Jane Doe; Henri Madiko, Licensed Vocational Nurse; Deputy Richard Pruitt; David Solce, Doctor of Osteopathic Medicine; Med... | Steven Baughman v. Ron Hickman | 2019-08-15 | 17-20679 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Smith, Southwick", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 17-20679 Document: 00515077635 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH ... | HIGGINBOTHAM | SMITH | SOUTHWICK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648703/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,813 | WAL-MART STORES, INCORPORATED; Wal-Mart Stores Texas, L.L.C.; Sam's East, Incorporated; Quality Licensing Corporation, Plaintiffs - Appellees Cross-Appellants v. TEXAS ALCOHOLIC BEVERAGE COMMISSION; Kevin Lilly, Presiding Officer of the Texas Alcoholic Beverage Commission; Ida Clement Steen, Defendants - Appellants Cro... | Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm'n | 2019-08-15 | 18-50299 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Davis, Haynes, Graves", "parties": "", "opinions": [{"author": "JAMES E. GRAVES, JR., Circuit Judge", "type": "010combined", "text": "Case: 18-50299 Document: 00515078735 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT Un... | DAVIS | HAYNES | GRAVES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648813/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,818 | UNITED STATES of America, Plaintiff-Appellee, v. Daryl Glenn PAWLAK, Defendant-Appellant. | United States v. Daryl Pawlak | 2019-08-15 | 17-11339 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Wiener, Elrod", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 17-11339 Document: 00515078178 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | SMITH | WIENER | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648818/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,819 | ST. CHARLES SURGICAL HOSPITAL, L.L.C., Plaintiff-Appellee v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, Doing Business as Blue Cross/Blue Shield of Louisiana; Blue Cross & Blue Shield of Louisiana, Incorporated, Defendants-Appellants | St. Charles Surgical Hosp., L. L.C. v. La. Health Serv. & Indem. Co. | 2019-08-15 | 18-30957 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "James, Haynes, Graves", "parties": "", "opinions": [{"author": "JAMES C. HO, Circuit Judge:", "type": "010combined", "text": "Case: 18-30957 Document: 00515078672 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | JAMES | HAYNES | GRAVES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648819/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,820 | John Paul DEJORIA, Plaintiff-Appellee v. MAGHREB PETROLEUM EXPLORATION, S.A. ; Mideast Fund for Morocco, Limited, Defendants-Appellants | John DeJoria v. Maghreb Petroleum Expl, S.A., et a | 2019-08-15 | 18-50348 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Jolly, Costa, Engelhardt", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 18-50348 Document: 00515078514 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | JOLLY | COSTA | ENGELHARDT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648820/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,648,822 | In Re: Dexter Johnson | 2019-08-15 | 19-20552 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.", "parties": "", "opinions": [{"author": "LESLIE H. SOUTHWICK, Circuit Judge:", "type": "010combined", "text": "Case: 19-20552 Document: 00515078728 Page: 1 Date Filed: 08/15/2019\n\n\n\n\n REVISED... | SOUTHWICK | GRAVES | HIGGINSON | 1 | {"SOUTHWICK": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648822/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,648,823 | Tarsia WILLIAMS; Breck Williams, Plaintiffs - Appellants v. TAYLOR SEIDENBACH, INCORPORATED, Defendant - Appellee Tarsia Williams; Breck Williams, Plaintiffs - Appellants v. McCarty Corporation, Defendant - Appellee | Frank Williams, Jr. v. Lockheed Martin Corp | 2019-08-15 | 18-31159; C/w 18-31161 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Haynes, Graves, Duncan", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9889090/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4... | HAYNES | GRAVES | DUNCAN | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4648823/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,649,100 | Mary Paula HARVILLE, Plaintiff - Appellant v. CITY OF HOUSTON, MISSISSIPPI, Defendant - Appellee | Mary Harville v. City of Houston, Mississippi | 2019-08-16 | 18-60117 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge.", "type": "010combined", "text": "Case: 18-60117 Document: 00515079190 Page: 1 Date Filed: 08/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | ELROD | HO | 1 | {"HIGGINBOTHAM": ", Circuit", "ELROD": ", Circuit", "HO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649100/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,649,101 | John DeJoria v. Maghreb Petroleum Expl, S.A., et a | 2019-08-16 | 18-50348 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 18-50348 Document: 00515079314 Page: 1 Date Filed: 08/16/2019\n\n\n\n\n REVISED August 16, 2019\n\n IN TH... | JOLLY | COSTA | ENGELHARDT | 1 | {"JOLLY": ", Circuit", "COSTA": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649101/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,649,202 | Rogelio Flores-Abarca v. William Barr, U. S. Atty | 2019-08-16 | 17-60236 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-60236 Document: 00515080419 Page: 1 Date Filed: 08/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | DAVIS | HIGGINSON | WILLETT | 1 | {"DAVIS": ", Circuit", "HIGGINSON": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649202/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,649,205 | Estella MARTINEZ, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Rogelio Martinez, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Jamal Saih, Individually and as Sole Heirs of the Estate of Claudia Martinez, Deceased; Olivia Longoria; Rogelio Longoria, Plaintiff... | Estella Martinez v. Walgreen Company | 2019-08-16 | 18-40636 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Higginbotham, Jones, Costa", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined", "text": "Case: 18-40636 Document: 00515079849 Page: 1 Date Filed: 08/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CI... | HIGGINBOTHAM | JONES | COSTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649205/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,649,206 | Chad Brackeen v. David Bernhardt | 2019-08-16 | 18-11479 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before WIENER, DENNIS, and OWEN, Circuit Judges.", "parties": "", "opinions": [{"author": "JAMES L. DENNIS, Circuit Judge:", "type": "010combined", "text": "MODIFIED August 16, 2019\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n ... | WIENER | DENNIS | OWEN | 1 | {"WIENER": ", Circuit", "DENNIS": ", Circuit", "OWEN": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649206/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,649,424 | In RE: Larry SWEARINGEN, Movant | In Re: Larry Swearingen | 2019-08-16 | 19-20565 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Costa, Willett, Duncan", "parties": "", "opinions": [{"author": "STUART KYLE DUNCAN, Circuit Judge:", "type": "010combined", "text": "Case: 19-20565 Document: 00515080515 Page: 1 Date Filed: 08/16/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | COSTA | WILLETT | DUNCAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649424/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,649,421 | Rogelio Flores-Abarca v. William Barr, U. S. Atty | 2019-08-19 | 17-60236 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "STEPHEN A. HIGGINSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-60236 Document: 00515081008 Page: 1 Date Filed: 08/19/2019\n\n\n\n\n REVISED August 19, 2019\n\n ... | DAVIS | HIGGINSON | WILLETT | 1 | {"DAVIS": ", Circuit", "HIGGINSON": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649421/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,649,549 | MUNICIPAL EMPLOYEES' RETIREMENT SYSTEM OF MICHIGAN, Plaintiff - Appellant, v. PIER 1 IMPORTS, INCORPORATED; Alexander W. Smith ; Charles H. Turner, Defendants - Appellees. | Mun. Employees' Ret. Sys. of Mich. v. Pier 1 Imports, Inc. | 2019-08-19 | 18-10998 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Smith, Wiener, Elrod", "parties": "", "opinions": [{"author": "JENNIFER WALKER ELROD, Circuit Judge:", "type": "010combined", "text": "Case: 18-10998 Document: 00515082201 Page: 1 Date Filed: 08/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CI... | SMITH | WIENER | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649549/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,649,551 | Enriqueta Moore v. LA Dept of Pub Sfty, et | 2019-08-19 | 18-30323 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "PATRICK E. HIGGINBOTHAM, Circuit Judge:", "type": "010combined", "text": "Case: 18-30323 Document: 00515082072 Page: 1 Date Filed: 08/19/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | ELROD | HO | 1 | {"HIGGINBOTHAM": ", Circuit", "ELROD": ", Circuit", "HO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4649551/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,444,069 | Amy McDonald NOBRE, ON BEHALF OF K.M.C. Chastity Guidry, on behalf of L.G. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY Jerry Goodwin | Nobre ex rel. K.M.C. v. La. Dep't of Pub. Safety | 2019-08-19 | No. 18-30323 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Elrod, Higginbotham", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415508/", "author_raw": ""}]} | ELROD | HIGGINBOTHAM | ELROD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444069/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,654,098 | Randy COLE; Karen Cole; Ryan Cole, Plaintiffs-Appellees v. Carl CARSON, Defendant-Appellant Randy Cole; Karen Cole; Ryan Cole, Plaintiffs-Appellees v. Michael Hunter; Martin Cassidy, Defendants-Appellants | Randy Cole v. Michael Hunter | 2019-08-20 | 14-10228; 15-10045 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Stewart, Higginbotham, Jones, Smith, Dennis, Clement, Owen, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, Oldham", "parties": "", "opinions": [{"type": "010combined", "text": "Case: 14-10228 Document: 00515084758 Page: 1 Date Filed: 08/20/2019\n\n\n\n\n IN TH... | STEWART | HIGGINBOTHAM | JONES | 2 | SMITH; DENNIS; CLEMENT; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; DUNCAN; ENGELHARDT; OLDHAM | {} | 8 | 0 | 6 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4654098/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||
4,654,373 | Randy Cole v. Michael Hunter | 2019-08-21 | 14-10228 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH, DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "REVISED August 21, 2019\n\n IN THE UNITED S... | STEWART | HIGGINBOTHAM | JONES | 2 | SMITH; DENNIS; CLEMENT; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM | {"STEWART": ", Chief", "HIGGINBOTHAM": ", Circuit", "JONES": ", Circuit", "SMITH": ", Circuit", "DENNIS": ", Circuit", "CLEMENT": ", Circuit", "OWEN": ", Circuit", "ELROD": ", Circuit", "SOUTHWICK": ", Circuit", "HAYNES": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Circuit", "WILLETT": ", ... | 8 | 0 | 6 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4654373/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,654,484 | Randy Cole v. Michael Hunter | 2019-08-21 | 15-10045 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH, DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "Case: 14-10228 Document: 00515085664 Page: ... | STEWART | HIGGINBOTHAM | JONES | 2 | SMITH; DENNIS; CLEMENT; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM | {"STEWART": ", Chief", "HIGGINBOTHAM": ", Circuit", "JONES": ", Circuit", "SMITH": ", Circuit", "DENNIS": ", Circuit", "CLEMENT": ", Circuit", "OWEN": ", Circuit", "ELROD": ", Circuit", "SOUTHWICK": ", Circuit", "HAYNES": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Circuit", "WILLETT": ", ... | 8 | 0 | 6 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4654484/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,654,642 | Randy Cole v. Michael Hunter | 2019-08-21 | 14-10228 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before STEWART, Chief Judge, and HIGGINBOTHAM, JONES, SMITH, DENNIS, CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "REVISED August 21, 2019\n\n IN THE UNITED S... | STEWART | HIGGINBOTHAM | JONES | 2 | SMITH; DENNIS; CLEMENT; OWEN; ELROD; SOUTHWICK; HAYNES; GRAVES; HIGGINSON; COSTA; WILLETT; HO; DUNCAN; ENGELHARDT; OLDHAM | {"STEWART": ", Chief", "HIGGINBOTHAM": ", Circuit", "JONES": ", Circuit", "SMITH": ", Circuit", "DENNIS": ", Circuit", "CLEMENT": ", Circuit", "OWEN": ", Circuit", "ELROD": ", Circuit", "SOUTHWICK": ", Circuit", "HAYNES": ", Circuit", "GRAVES": ", Circuit", "HIGGINSON": ", Circuit", "COSTA": ", Circuit", "WILLETT": ", ... | 8 | 0 | 6 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4654642/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,654,643 | Jeffery Stallworth v. Dewey Bryant | 2019-08-21 | 18-60487 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 18-60487 Document: 00515086236 Page: 1 Date Filed: 08/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | SMITH | SOUTHWICK | 1 | {"HIGGINBOTHAM": ", Circuit", "SMITH": ", Circuit", "SOUTHWICK": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4654643/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,654,644 | Jeff Faludi v. U.S. Shale Solutions, L.L.C. | 2019-08-21 | 17-20808 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "JENNIFER WALKER ELROD, Circuit Judge:", "type": "010combined", "text": "Case: 17-20808 Document: 00515086670 Page: 1 Date Filed: 08/21/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | ELROD | HO | 1 | {"HIGGINBOTHAM": ", Circuit", "ELROD": ", Circuit", "HO": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4654644/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,655,284 | United States v. $4,480,466.16 in Funds Seized | 2019-08-22 | 18-10801 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before ELROD, WILLETT, and DUNCAN, Circuit Judges.", "parties": "", "opinions": [{"author": "STUART KYLE DUNCAN, Circuit Judge:", "type": "010combined", "text": "Case: 18-10801 Document: 00515087912 Page: 1 Date Filed: 08/22/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | ELROD | WILLETT | DUNCAN | 1 | {"ELROD": ", Circuit", "WILLETT": ", Circuit", "DUNCAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4655284/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,655,286 | Jeff Faludi v. U.S. Shale Solutions, L.L.C. | 2019-08-22 | 17-20808 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "JENNIFER WALKER ELROD, Circuit Judge:", "type": "010combined", "text": "Case: 17-20808 Document: 00515087619 Page: 1 Date Filed: 08/22/2019\n\n\n\n\n REVISED August 22, 2019\n\n ... | HIGGINBOTHAM | ELROD | HO | 1 | {"HIGGINBOTHAM": ", Circuit", "ELROD": ", Circuit", "HO": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4655286/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,655,529 | Wayne Klocke v. University of TX at Arlington | 2019-08-23 | 17-11320 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JONES, BARKSDALE, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "EDITH H. JONES, Circuit Judge:", "type": "010combined", "text": "Case: 17-11320 Document: 00515088714 Page: 1 Date Filed: 08/23/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | JONES | BARKSDALE | WILLETT | 1 | {"JONES": ", Circuit", "BARKSDALE": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4655529/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,655,532 | Dany Pena Oseguera v. William Barr, U. S. Atty Gen | 2019-08-23 | 17-60339 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "KURT D. ENGELHARDT, Circuit Judge:", "type": "010combined", "text": "Case: 17-60339 Document: 00515089293 Page: 1 Date Filed: 08/23/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | JOLLY | COSTA | ENGELHARDT | 1 | {"JOLLY": ", Circuit", "COSTA": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4655532/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,655,662 | Lindsey Hoyt v. Lane Construction Corporati | 2019-08-23 | 18-10289 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JONES, HAYNES, and OLDHAM, Circuit Judges.", "parties": "", "opinions": [{"author": "ANDREW S. OLDHAM, Circuit Judge:", "type": "010combined", "text": "Case: 18-10289 Document: 00515089951 Page: 1 Date Filed: 08/23/2019\n\n\n\n\n REVISED August 23, 2019\n\n IN THE ... | JONES | HAYNES | OLDHAM | 1 | {"JONES": ", Circuit", "HAYNES": ", Circuit", "OLDHAM": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4655662/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,655,663 | JP Morgan Chase Bank, N.A. v. Datatreasury Corpora | 2019-08-23 | 18-40043 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.", "parties": "", "opinions": [{"author": "JAMES E. GRAVES, JR., Circuit Judge", "type": "010combined", "text": "Case: 18-40043 Document: 00515089895 Page: 1 Date Filed: 08/23/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HIGGINBOTHAM | GRAVES | WILLETT | 1 | {"HIGGINBOTHAM": ", Circuit", "GRAVES": ", Circuit", "WILLETT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4655663/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,655,665 | Alana Cain v. New Orleans City | 2019-08-23 | 18-30955 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before HAYNES, GRAVES, and HO, Circuit Judges.", "parties": "", "opinions": [{"author": "JAMES E. GRAVES, JR., Circuit Judge", "type": "010combined", "text": "Case: 18-30955 Document: 00515090064 Page: 1 Date Filed: 08/23/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | HAYNES | GRAVES | HO | 1 | {"HAYNES": ", Circuit", "GRAVES": ", Circuit", "HO": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4655665/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,656,190 | UNITED STATES of America,, Plaintiff-Appellant v. Javier FUENTES-RODRIGUEZ, Defendant-Appellee | United States v. Javier Fuentes-Rodriguez | 2019-08-26 | 15-40740 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Clement, Elrod, Oldham, Per Curiam", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 15-40740 Document: 00515092397 Page: 1 Date Filed: 08/26/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n ... | CLEMENT | ELROD | OLDHAM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4656190/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,656,193 | Paul Valderas v. City of Lubbock | 2019-08-26 | 18-11023 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of App... | JOLLY | COSTA | ENGELHARDT | 1 | {"JOLLY": ", Circuit", "COSTA": ", Circuit", "ENGELHARDT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4656193/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,656,194 | Double Eagle Energy Services v. MarkWest Utica EMG | 2019-08-26 | 19-30207 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before WIENER, HAYNES, and COSTA, Circuit Judges.", "parties": "", "opinions": [{"author": "GREGG COSTA, Circuit Judge:", "type": "010combined", "text": "Case: 19-30207 Document: 00515092170 Page: 1 Date Filed: 08/26/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR TH... | WIENER | HAYNES | COSTA | 1 | {"WIENER": ", Circuit", "HAYNES": ", Circuit", "COSTA": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4656194/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,656,195 | Billy Crutsinger v. Lorie Davis, Director | 2019-08-26 | 19-70012 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before SMITH, OWEN, and GRAVES, Circuit Judges.", "parties": "", "opinions": [{"author": "JERRY E. SMITH, Circuit Judge:", "type": "010combined", "text": "Case: 19-70012 Document: 00515092419 Page: 1 Date Filed: 08/26/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FO... | SMITH | OWEN | GRAVES | 1 | {"SMITH": ", Circuit", "OWEN": ", Circuit", "GRAVES": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4656195/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,656,601 | United States v. Alexis Aguilar-Alonzo | 2019-08-27 | 18-50627 | U.S. Court of Appeals for the Fifth Circuit | {"judges": "Before SMITH, WIENER, and ELROD, Circuit Judges.", "parties": "", "opinions": [{"author": "JENNIFER WALKER ELROD, Circuit Judge:", "type": "010combined", "text": "Case: 18-50627 Document: 00515093656 Page: 1 Date Filed: 08/27/2019\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n ... | SMITH | WIENER | ELROD | 1 | {"SMITH": ", Circuit", "WIENER": ", Circuit", "ELROD": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4656601/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 8 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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